Mandatory notarial transactions. Notarized real estate purchase and sale transaction. Notarization of the transaction. Registration of a transaction for the purchase and sale of an apartment through a notary: what is important to know

The moment of buying and selling a home is one of the most important moments in every person’s life. This procedure is quite complicated, but at the same time it does not allow for mistakes, especially those related to the preparation of documents.

There are two types of purchase and sale agreements:

• Preliminary, which records the fact of the desire to complete a transaction, and the presence of a deposit or advance payment;
• The main agreement, which, in fact, specifies all the nuances of the transaction.

Since the preparation of all papers is a complex and time-consuming process, citizens are increasingly turning to notarial assistance. Naturally, specialists do not offer their services for free, but the amount will be covered by the guarantees that the participants in the transaction receive using the help of lawyers.

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How is a notarial transaction completed?

As a rule, a notarized apartment purchase and sale transaction is completed in several stages. The signing of an agreement between the buyer and the seller is one of the final stages, which is accompanied by lengthy preparation. During the process, all the documents that will help protect both parties as fully as possible are collected for a long time and carefully.

There are three stages of work on completing a notarial transaction:

1. The seller and buyer sign a preliminary agreement. This agreement is given a lot of attention, since it must indicate the conditions already agreed upon at the moment, and indicate the timing of the final conclusion of the transaction. And also at this time, the necessary documents are prepared and submitted to the notary for verification;
2. The second stage is to sign a real estate purchase and sale agreement. This happens in the presence of a notary who notarizes the contract;
3. The third stage is the registration of the property rights of the newly-minted owner of the living space.

You can read more about the procedure for registering and concluding a purchase and sale agreement in the thirtieth chapter of the Civil Code of the Russian Federation. And one more point that will be of interest to those who are planning to make a similar transaction - in Russia, a notarial transaction for the sale of real estate is not mandatory! You only need to have the document certified by a notary. Although, to be fair, let’s say that it is much safer than a transaction made in simple written form with the participation of a realtor.

Advantages of notarial support of a transaction

Practice proves that the most reliable way to sell or buy real estate is to conclude a transaction with a notary who will check all the documents, protecting all parties to the process from the troubles that often accompany such cases. Of course, the cost of the service is not small, but it pays off.

Let's try to consider the most significant advantages of cooperation with a notary:

Unfortunately, even this entire list cannot fully guarantee the safety of the parties. Notarized transactions are also considered invalid. That's why you need to be careful. But by certifying the documents, the parties to the transaction follow the law and show the integrity of their intentions.

When is it necessary to do without a notary?

The law explicitly states that some real estate transactions must be completed in notarial form. This is relevant:

• According to Article 42 of Law No. 218-FZ, notarial support is required when selling a share of common property in residential and non-residential premises in apartment buildings;
• When selling property that a person has under guardianship rights;
• When alienating real estate that belongs to a minor;
• When alienating real estate of citizens belonging to the category of people with limited legal capacity (in accordance with Article 52 of Law 218-FZ).

These points are considered complex in terms of consideration, therefore an ordinary person who does not understand anything about jurisprudence will not be able to correctly prepare documents and draw up an agreement. In addition, recently, a notary is an obligatory party to transactions related to the purchase and sale of real estate.

Legal support is sometimes necessary when making other transactions not listed here. It all depends on the individual situation, capabilities and desires of citizens.

What documents need to be provided to the notary?

The person who sells the property presents documents confirming his ownership. But that is not all. To avoid forgetting anything, we will provide a list:

The list is large, but even it cannot fully reveal the entire documentary base that may be needed when making transactions of this format. As a rule, support of a home purchase and sale transaction by a notary protects against elementary mistakes that the parties to the contract may make out of ignorance.

And one more nuance - when bringing documents to a notary, you need to take not only copies, but also originals. This is necessary for the specialist to check the papers and, if any complaints arise, to point them out. And in order to correct inaccuracies, the parties to the transaction leave their contact information.

Registration of property rights of the new owner

Registration of ownership is a necessary procedure, without which it is impossible to confirm the transfer of ownership of real estate to another person. When selling an apartment, you should also go through this procedure. But few of those people who have not encountered such difficulties understand where and how this happens.

The notary will do the work for his clients; all they have to do is pay the state fee, bring the documents that the specialist will require, and wait until the whole procedure is completed. The exact period during which registration can be completed is not specified in the legislation, but according to general practice, it is better to submit documents immediately in order to receive full right to be in the apartment as the owner.

As for the time spent on processing documents in Rosreestr, it takes three working days. You must pay the state fee - for 2017 it is 2,000 rubles. The services of a notary who submitted documents to Rosreestr must be paid separately.

In addition, certificates of title to property sent through a notary office go a little faster than if the newly-minted owner applied to the authorities on his own.

Stages of registration of rights to real estate:

1. Submission of documents.
2. Legal examination of papers.
3. If no reason for refusal was found, new data is entered into the register.
4. The new owner is given state registration documents.

Service cost

Notarized support for real estate transactions in Russia is not mandatory, but a notary is still forced to certify documents for such a transaction. If there are no obstacles, the apartment is registered to only one person, then selling the property will not be a problem, but if there are several registered tenants, then you cannot do without the help of a notary.

How much would such a deal cost? Until June 2016, Muscovites paid no more than five thousand rubles, and this included the cost of state duty, the price of which was two thousand rubles. Let's look at where this amount came from and what it could be for 2017:

But it’s too early to worry. Of course, registration with a notary will not be cheap, but there is a pattern - the lower the cost of housing, the less money will be required for its registration. That is why, if living space in Moscow costs tens of millions of rubles, notary services are frightening due to their price. But in the regions there are no such prices, both for real estate and for notary services. So it will be easy to invest 5,000 rubles.

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Let’s immediately dot the i’s regarding the mandatory nature of notarial transactions: in Russia there is a simple rule: real estate transactions are carried out in simple written form!

Only some transactions, the list of which is established by law, require notarization. That is, in Russia, a notarized real estate transaction is an exception to the general rule.

About the advantages and guarantees of notarial transactions

Litigation regarding real estate shows: A notarial purchase and sale transaction, a notarial donation transaction and other notarial transactions do not provide any advantages to the parties. Such transactions, like any other, are successfully challenged in court everywhere and are declared invalid. An example of this is challenging wills, challenging transactions with inherited apartments, etc.

Notarial transactions now have other risks

When turning to a notary, people refuse agents, realtors, and real estate lawyers, believing that the notary will completely carry out the transaction. Meanwhile, this is not entirely true, or rather, it is not at all true.

The purchase and sale of real estate is a broader concept than simply signing a purchase and sale agreement with a notary. The concept of a transaction includes many stages - from making an advance payment for an apartment to transferring the apartment to the buyer. At each stage, your own documents are drawn up. Therefore, having refused the help of specialists and trusting only the notary, the participants in notarial transactions have a very vague idea of ​​what to do before “going to the notary”, how to behave and what to do at the notary, what are the best conditions to write down in the contract, what to do after the notary.
And the notary only prepares the contract and certifies its conclusion. The law does not provide for such notarial action as support of a real estate transaction by a notary.

As a result, people regularly contact us with incorrectly completed documents or disputes.
In our experience, when preparing a transaction, it is not always possible to agree with each notary on all the terms of the purchase and sale agreement necessary for the buyer. Sometimes we have to contact several notaries until we find a competent notary specializing in real estate transactions.

There is another problem.

As soon as a list of cases appeared in Russia when a notarial form for the purchase and sale of real estate was required, a flood of clients came with questions: I have an error in the notarial agreement, the notary made a mistake in the agreement, what should I do? And it’s good if the last name is spelled incorrectly, passport number is incorrect, etc. As a rule, these errors appear during state registration and are not difficult to correct.

But there are situations with errors discovered after state registration of property, as well as in notarial agreements drawn up long ago, for example, in the 2000s, according to which the rights to real estate were also registered a long time ago and errors were discovered during preparation for new transactions.

There are no less serious errors that are not related to typos.

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Typical mistakes in notarial purchase and sale transactions

We regularly encounter three errors in notarial purchase and sale transactions that are dangerous for parties to real estate transactions. Regularity makes us consider these errors to be typical specifically for notarial real estate transactions.

1. Mistake #1

Essential for all parties to a real estate purchase and sale agreement is always not only the price, but also the payment procedure.

In the absence of a real estate price, the purchase and sale agreement is considered not to be concluded, and without determining the payment procedure, the purchase and sale agreement can be dispensed with. Our experience in real estate courts shows that the parties will definitely not manage without a clear agreement on the procedure for settlements under the transaction. This is confirmed by the practice of legal support of transactions and numerous real estate courts.

The possibility of losing money in a real estate transaction is always present, and it is not possible to exclude such a possibility, even theoretically. For example, there is a misconception that settlements are guaranteed when used in bank settlements. It is not that simple. Regardless of the form in which payments through the bank take place - cash or non-cash, if the license is revoked, the money is likely to be lost. No matter what representatives of the Central Bank and the Ministry of Finance say on TV about the need to transfer payments to non-cash payments, when the license is revoked, first of all, the money will disappear from the account. It is not uncommon for money to disappear from an individual bank safe deposit box.

But this is a topic for a separate article.

What does the order of calculations matter? In fact, the establishment of a payment procedure is the distribution of responsibility for money by the seller and buyer! Who bears the risk for the safety of money? The one who will be indicated in the contract, and this depends on the terms of the purchase and sale agreement on the payment procedure (settlement procedure). After all, according to the law, the buyer of real estate has only one obligation - to pay the agreed price. And in the event of a dispute, the buyer is always required to prove payment to the seller.

In addition, if before registering the transfer of the right to an apartment it is not paid, Rosreestr can register a mortgage (pledge) of the apartment by force of law. And the buyer will not be able to remove this encumbrance on his own.

Features of a notarial agreement

When notarizing a real estate purchase and sale agreement, the contract is drawn up by a notary. And not all of its formulations are always correct, from the point of view of the balance of interests and risks of the seller and the buyer. We often come across unfortunate formulations in notarial agreements that create risks for the parties to the transaction where none exist. In addition, it is not uncommon for an agreement drawn up by a notary to essentially not correspond to the agreement of the parties on the purchase and sale procedure. Most often, this concerns the payment procedure.

Look in the texts of the notarial agreement for conditions on the payment procedure; often they are included in the clause on the price of the apartment or next to it. It's not uncommon to find the following form:

The settlement between the parties is made in full before signing the contract. The seller received from the buyer the contract price in the amount of ..... rubles in full.

To put it mildly, this is an unfortunate formulation; it does not violate the law, but it creates significant legal risks.

We know that if a party or parties have questions about the above formula, notaries insist on it, citing the emergence of a mortgage on the apartment if settlements take place after the transfer of rights. Many people are convinced by such arguments. It seems like a harmless phrase, and it was written by a notary, which is why it remains in many contracts.

Our experience in organizing and conducting real estate transactions shows: This formulation has nothing to do with real transactions, since they require a high degree of trust between the participants in the purchase and sale. And real estate transactions on the open market are carried out by completely strangers who have not met them before, so their interests and risks are balanced by legal structures - the terms of the contract. Under the above settlement conditions, the transaction can only be carried out by relatives - persons who have a personal trust relationship.

Therefore, in real real estate purchase and sale transactions, money is always paid after the state registration of the property to the buyer, or the mortgage of the apartment is established in the contract.

That is, the wording of the settlement agreement will obviously unbalance the risks of the parties.

If the buyer's property is not registered, the seller does not receive any money. And with the wording about receiving money before signing the contract, the buyer, without paying the money, acquires the right to demand unpaid money from the seller, because such an agreement, and even in notarial form, acquires the force of a receipt. And the receipt is certified by a notary. Are you ready to bear such risks?

Support of real estate transactions shows: the more detailed the terms of the contract are, the more accurately the parties fulfill their obligations, and the easier it is to demand performance from the other party or to argue if the matter goes to court.

Vague formulations, as a rule, are of interest to those who do not intend or are not accustomed to clearly fulfill their duties, or leave themselves the opportunity for some maneuvers.

Who benefits from the wording about settlements before signing the contract?

We believe that the Notary, since there is less to write, less time to spend listening to the parties, does not need to link the interests of each party and the different clauses of the contract. In our opinion, neither the seller nor the buyer are interested in such a formulation.

Perhaps such wording may be beneficial to the buyer, since by signing such an agreement all risks are transferred to the seller. And in any situation, the buyer can demand money from the seller, even if the money has not actually been transferred.

The last thing you can discuss is the benefits of the Seller.

Mistake #2

When purchasing real estate on your own, as a rule, the parties pay the least attention to the transfer of real estate. At best, the contract specifies the transfer period.

In notarial purchase and sale agreements they regularly write:

According to Article 556 of the Civil Code of the Russian Federation, when transferring real estate, the parties draw up a transfer deed. The parties agreed that this agreement is a document confirming the transfer of real estate by the seller to the buyer without any acts or additional documents. The buyer is familiar with the condition of the apartment and agrees.

It seems to take care of the parties to the contract, relieving the parties to the transaction from additional writings and legal formalities. But in reality it leads to sad consequences.

Indeed, according to Article 556 of the Civil Code of the Russian Federation, the transfer of real estate from the seller to the buyer is formalized under a separate document - a transfer deed. And this is not just like that.

The fact is that such additional complexity in the transfer is associated with the significant cost of real estate, the possibility of defects appearing in real estate precisely after the signing of the purchase and sale agreement but before the transfer of ownership to the buyer, as well as the possibility of causing damage or destruction of real estate before the transfer of rights. In this connection, the seller bears responsibility and risks for the safety of the property before its transfer to the buyer.

By giving the contract the force of a deed of transfer, the buyer is at risk - from the moment the contract is signed under such conditions, he accepts all risks.

Between the moment the contract is signed by the notary and the date the buyer acquires ownership of this property, the period established by law will still pass. In reality, this is at least a week, and usually two weeks, taking into account the transfer of documents between the MFC and Rosreestr. In addition, Rosreestr databases regularly hang, sometimes for weeks.

Even a shortened registration period cannot be less than 5 working days.

And one day is enough for significant damage or destruction of real estate.

By signing the agreement and equating it to the deed of transfer, the buyer loses the opportunity to present claims to the seller if, after signing the agreement, the condition of the apartment turns out to be worse than it was before the purchase.

There is only one way out in such situations - to carefully study the purchase and sale agreement and remove obviously unfavorable, high-risk conditions.

Mistake #3

The third mistake in notarial transactions is related to the peculiarity of the procedure for notarization of transactions itself.

The actual execution of a transaction by a notary is carried out in the presence of its parties, which does not imply the presence of consultants from both the seller and the buyer. Many notaries categorically object to the presence of “outsiders” when performing notarial acts; as a result, the seller and buyer are left alone with the notary, and often cannot even ask the notary a question.

At the same time, due to the fault of technical workers (notary assistants), it is not at all uncommon to change the previously agreed text of the real estate purchase and sale agreement to the original one. Or simply the notary’s refusal to make changes to the contract at the request of the parties.

The consequence of the listed features of notarization is the impossibility of setting out the actual terms of the contract in the contract, which can be regarded as a distortion of the actual will of the parties to the real estate purchase and sale agreement, and often a direct infringement of the right to freedom of contract.

Today we are seeing an established system of notary monopoly on certain real estate transactions, which already leads to restrictions and, in some cases, to violations of citizens’ rights.

An analysis of preparation for notarial real estate purchase and sale transactions has revealed systemic shortcomings of notarial transactions, when, relying on the authority and persuasiveness of the notary, the buyer and seller receive and sign an agreement that they have not fulfilled and do not intend to fulfill. What can be considered as a vice of the will of the parties to the contract.

At the same time, when concluding such an agreement, the buyer and seller do not understand that if complications arise during its execution, for example, a refusal to register the buyer’s ownership of real estate, and even more so if one of the parties violates the agreement, the other party may end up in difficult and sometimes even stalemate.

Thus, the notarized form of the purchase and sale agreement does not simplify the purchase of real estate, does not create more guarantees for the buyer and the seller, but, on the contrary, in some cases creates real risks for both parties, which the parties to the transaction cannot independently assess.

From the foregoing, it is obvious that the causes of errors are the subjective factor of a particular notary, which cannot be excluded.

A real estate lawyer should check the purchase and sale agreement drawn up by a notary to identify hidden or unobvious violations of the rights of the seller or buyer.

The fact is that in some situations it is impossible to correct an error in an already signed, and especially executed, real estate purchase and sale agreement.

Answers to frequently asked questions about notarial transactions.

How to correct a mistake in a real estate purchase and sale agreement

At first glance, correcting an error in a sales contract is simple: the parties draw up an additional agreement to the contract in the same form as the contract itself.

If the agreement is in notarial form, changes and additions to the agreement are carried out in the same way, only this is done in the presence of a notary, and the notary certifies the new agreements. In some situations, corrections must be made directly to the text of the contract; such corrections can only be made by the notary who certified the transaction.

What if an error in the contract is discovered after the state registration of ownership of the buyer? For example, in a year or two?

In this case, you will most likely have to go to court.

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In what cases will you be denied state registration of rights to purchased real estate?

The final stage of purchasing any real estate is state registration of ownership and transfer of ownership to the new owner (buyer). Since the new year 2017, the procedure for state registration of rights to real estate (apartments, houses, plots, etc.) has changed significantly. About cases in which you will be denied state registration of rights to an apartment and other real estate,

Legal practice includes several cases when it is mandatory to notarize an agreement. Without the appropriate signature and seal, the deed of sale and purchase simply will not be accepted by the registering authority.

Sellers and buyers contact a notary office, where the notary independently signs and certifies the contract. Let's consider situations that necessarily require this procedure.

The buyer is interested in the services of a notary in the following situations:

You will find all the information about the notarization of a purchase and sale agreement, including a list of documents and deadlines, and you can find out the tariffs and prices for certification of the agreement.

The difference between buying a resale and a new building

Today, future property owners prefer to purchase an apartment in a new building. And there's a reason for this. No one lived in this property, which means there are no legal difficulties in matters of property.

If we are talking about purchasing a secondary property, then it is necessary to obtain the consent of all owners of shares for the sale, and also ensure that all residents, including small children, are discharged.

When purchasing an apartment in a new building, a notary may be needed in a situation where there is a need to conclude a deal directly with a legal entity, that is, a developer company. In this situation, the services of a notary will be needed if required by the organization's charter.

Why do you need to get notarized?

To the buyer

The rights and duties of a notary are prescribed by Federal Law No. 4462-1. This regulatory legal act provides us with a list of the duties of a notary that he is authorized to perform in relation to applicants. If we are talking about the execution and certification of a purchase and sale agreement, then you should pay attention to the following nuances:

A notary can individually provide other services related to the registration, execution and certification of a purchase and sale transaction.

We talked in more detail about why you need a notary when buying an apartment.

To the seller

The seller will need the help of a notary in the following cases:

• If the transaction involves an apartment that is jointly owned by divorced spouses. In this case, the notary checks the existence of an agreement on the division of common property, or takes it from the spouses.
• If a transaction is carried out that involves the sale of real estate that is under trust management.
• If the owner is a child or a citizen with limited legal capacity. If a property has several owners, they all need the help of a notary.

Thus, the law establishes that the presence of a notary is necessary in the most problematic areas of legal purchase and sale relations.

The seller may need a notary if funds are transferred with him. The seller is interested in ensuring that the transfer and counting of money takes place under strict control, so that in case of a shortage he has the opportunity to explain himself to the buyer.

You can find out who pays for notary services, the seller or the buyer.

Additional benefits

In addition to the above steps a notary can offer the seller a lot of unique and effective services, which are based on the use of electronic technologies, among other things.

But even if your transaction does not contain the above grounds, you do not lose the opportunity to contact a notary. This a specialist will help you understand the intricacies of the transaction, tell you about the main nuances, and will also help ensure that your rights have not been violated. Contact this specialist and you can sleep peacefully, confident that you, as a seller or buyer of real estate, will not incur any losses.

Hello. The cost of the purchase and sale agreement depends on whether the notary was required to be contacted or at one’s own request. Therefore, first, carefully read in what cases the purchase and sale agreement for an apartment must be certified, and in what cases it is not. It costs more to certify a contract at your own request.

If a purchase and sale agreement is required

If the contract is certified at your own request

(no mandatory notarization provided)

• A) Drawing up a contract - approximately from 4 to 10 tr. The price is different in each region. For example, in Moscow - up to 10,000 rubles, in St. Petersburg - 5000-7000 rubles.
• B) Notarization (certification) of the contract - % of the transaction amount. The transaction amount is the price of the apartment that the parties (owners and buyers) agreed upon among themselves. It will be specified in the purchase and sale agreement.

  The percentage depends on the transaction amount and whether the sellers (owners) and buyers are close relatives of each other. Tariffs are taken from clause 1 of Art. 22.1 Basics about notaries.

  • When buyers and sellers are close relatives of each other

    That is, when an apartment is sold to a spouse, parent(s), son/daughter, grandson/granddaughter, or grandparent.

    • — If the transaction amount is up to 10 million rubles, then certification of the contract costs 3,000 rubles. + (0.2% * transaction amount).
    • — If the transaction amount is more than 10 million rubles, then 23,000 rubles. + (0.1% * (transaction amount - 10 million)). But the final cost of the certificate should not exceed 50 tr.

      After purchasing an apartment, you can count on a 13% refund in the form of a tax deduction (up to 260 thousand rubles)A complete list of documents from owners for selling their apartment + instructions on how to obtain them -.

      Is it possible to underestimate the transaction amount in order to pay less to the notary?

      From the calculations above, we can assume that if you underestimate the transaction amount, you will be able to pay less for certifying the contract. For example, buyers and owners agreed on an apartment price of 5.5 million rubles. It turned out that in their case a notarized agreement would be required. Although it turns out that 0.5% * 5.5 million = 27,500, the notary will charge the maximum by law 20,000 rubles for the certificate. In order to reduce the amount of state duty, the parties decided to indicate in the contract the amount of 2 million rubles, and the remaining 3.5 million rubles. do not fix. The certificate will cost not 20,000 rubles, but 10,000 rubles.

      In practice, it is not possible to reduce the transaction amount - notaries are usually aware of market prices for real estate and will not certify an agreement with a greatly reduced transaction amount. It’s clear why - they will receive less money for their services. And many sellers do not agree to accept part of the money for an apartment in person.

      Who should pay - buyers or sellers?

      The law does not specify who, when buying or selling real estate, must pay the notary for his services. In practice, with most notaries it will be the sellers who appear on payment receipts, because they benefited. But they don’t care who gives the money. Therefore, sellers and buyers must agree in advance among themselves who pays how much and for what.

      An additional service that may be needed is the consent of the spouse

      Can I bring my purchase and sale agreement to the notary?

      By law, buyers and sellers can do this, but in practice everything is different - most notaries do not accept sales contracts “from outside”. Agreements are usually drawn up by notary assistants using pre-prepared templates, and notaries themselves are not eager to check “other people’s” agreements before certifying them. Therefore, you will have to pay for drawing up the contract.

      If you want to find a notary who accepts contracts “from the outside,” then check this by phone. I had such a case. I called one notary, and as usual, an assistant answered the phone. He told me that they accept contracts. I drew up a purchase and sale agreement for my clients, we came to the notary and he refused to accept it. As usual, they referred to the fact that the contract would be drawn up by assistants; they were experienced specialists and they knew better. Therefore, ask this point over the phone several times.

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