Assignment of the right to claim under a shared construction agreement. Agreement for the assignment of rights of claim to an apartment Deadline for registering the assignment ddu

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How to register an agreement for the assignment of rights of claim under an agreement for participation in shared construction (if the construction permit was issued after 04/01/2005)

State registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer and termination of rights to real estate. State registration is the only evidence of the existence of a registered right.

Sequence of actions of the applicant

What documents are required

1. Application for state registration:

agreements for the assignment of rights of claims under an agreement for participation in shared construction - represented by the parties to the agreement;
mortgages by force of law - represented by the person to whom the rights are assigned (mortgagor), or a representative of a bank, other credit organization, or other legal entity (mortgagee) in cases where payment for construction is carried out in whole or in part using credit or borrowed funds.

If the agreement is notarized, the application for state registration can be submitted by the notary who certified the agreement or his assistant. If the application is submitted by a representative of the party (parties) to the transaction, the pledgee, it is necessary to submit a notarized power of attorney. The application form can be downloaded from the Rosreestr website and obtained from the Rosreestr, Cadastral Chamber and MFC offices.

2. Identity document of the applicant.

3. Registered agreement for participation in shared construction(original, returned to the applicant).

4. Agreement on assignment of the right of claim with all amendments and annexes(if the agreement is made in simple written form - the original, at least 2 copies; if the agreement is notarized - at least 2 copies, one of which is the original).

For legal entities Additionally, you will need constituent documents (original or copy certified by a notary or head of a legal entity), as well as documents confirming the authority of a representative of a legal entity to act on its behalf (original or notarized copy). For legal entities, a decision of the competent authority of the legal entity may be required to approve a major transaction or a transaction in which there is an interest.

The following documents may be needed:

If the agreement is signed by a representative of a party to the agreement - a document confirming the authority of the representative to sign the agreement (original and copy).
If a mortgage arises by force of law - the agreement from which the obligation secured by the mortgage arose (original and copy).
If a mortgage is drawn up when a mortgage arises by force of law - the mortgage and the documents named in the mortgage as attachments (original and copy).
If the assignment is made before the full price of the contract is paid simultaneously with the transfer of the debt to a new participant in shared construction - the developer’s written consent to the assignment of the right of claim under the contract (original and copy).
If the rights of claim under the agreement for participation in shared construction are pledged, the written consent of the mortgagee to the assignment of the right of claim (original and copy).

For individuals you may need:

Notarized consent of the other spouse to conclude an agreement or a document indicating that the property being created does not become the joint property of the spouses (prenuptial agreement, agreement on the division of common property of the spouses, court decision on the division of property and determination of the shares of the spouses - original and copy; court decision - copies in 2 copies).
Permission from the guardianship and trusteeship authority for the assignment by legal representatives of the right to claim under the agreement, if the participant in the shared construction is a minor (under 14 years old) or incompetent, for the assignment to minors (from 14 years old) or a participant in the shared construction with limited legal capacity of the right to claim under the agreement for participation in the shared construction.

The applicant may optionally submit a document confirming payment of the state fee. If confirmation of payment of the fee has not been received from the applicant, Rosreestr will request it within the framework of the interdepartmental information interaction system*. If information about payment is not available in the State Information System on state and municipal payments, documents for registration of rights will not be considered and will be returned to the applicant.

* You can check the possibility of obtaining confirmation of payment of the state duty through interdepartmental cooperation on the Rosreestr website, from the operator of the call center or from a specialist in the office.

Terms of provision and cost of services

For registration of an agreement for the assignment of rights of claim under an agreement for participation in shared construction for individuals and legal entities, a state fee of 200 rubles is charged, divided by the number of parties to the agreement. By law, no state fee is charged for registering a mortgage.

The original agreement with the registration signature is issued to the applicant within no more than 18 calendar days from the date of receipt of the application and documents by the body carrying out state registration of rights. If a decision is made to refuse state registration, a notice of such refusal must be sent to the applicant no more than 5 days after the end of the established registration period.

Possible reasons for suspending state registration of rights:

lack of necessary documents or information requested by interdepartmental requests;
the state registrar has doubts about the existence of grounds for state registration of rights, the authenticity of the documents submitted or the reliability of the information specified in them;
a written statement from the party(ies) to the transaction or their representatives;
receipt of a court ruling or decision, including a ban on registration actions.

Possible reasons for refusal of state registration:

an inappropriate person applied for state registration;
the submitted documents in form or content do not comply with the requirements of current legislation;
documents required for state registration have not been submitted, if the obligation to submit them lies with the applicant;
there are contradictions between the declared and already registered rights;
the response of a state authority or local government body to an interdepartmental request indicates the absence of a document and information necessary for state registration of rights, if the corresponding document is not submitted by the applicant on his own initiative.

For detailed information, visit the Rosreestr website or contact a specialist in the office.

How to submit documents

You can register an agreement on the assignment of rights of claim under an agreement for participation in shared construction in any of the following ways:

1. Contact the office of Rosreestr or the Cadastral Chamber.

Make an appointment in advance:

on the official website of Rosreestr in the “Offices and Receptions” section;
via a single number of the Rosreestr call center.

2. Submit documents to the multifunctional center for the provision of state and municipal services (MFC). Make sure that the MFC provides this service.

3. Send the notarized documents by mail with a description of the attachment and a notification of delivery to the office of Rosreestr or the Cadastral Chamber at the location of the property.

4. Submit an application and the necessary documents, signed electronically, on the Rosreestr website in the “Electronic Services” section*.

* Check the possibility of providing documents for this service electronically on the Rosreestr website, with the operator of the call center or with a specialist in the office.

You can quickly track the status of consideration of your application using the electronic service “Checking the status of a request” on the Rosreestr website, regardless of how you submitted the documents.

Department for Monitoring and Improving the Quality of Public Services of Rosreestr

The number of cases of assignment of claims has been growing recently; Rosreestr records this increase month after month. However, certain risks are usually associated with this type of transaction. Cases have become more frequent when a contractor that has received an apartment as payment from a developer does not fulfill its obligations to the construction company, resulting in the termination of the assignment agreement, after which the apartment is returned to the court. Experts told us how to protect ourselves from such situations.

For those who are planning to buy an apartment in a new building, three options are open today. First, sign an agreement for shared participation in construction directly with the developer. Secondly, you can become the owner of an apartment in a new building by concluding an agreement on the assignment of the right of claim with an individual who bought this apartment from the developer for the purpose of investment. The third option is when an agreement on the assignment of the right of claim is concluded with a contractor that performs construction and installation work at the site.

The most common situations today are when the seller is a contractor.

The peculiarity of the assignment of the right of claim under a share participation agreement in construction is that as a result of such a transaction, the validity of the first share participation agreement does not terminate, it only changes the buyer (instead of the original investor, a new person becomes it). The rights and obligations of the original investor are transferred to the buyer, while all the terms of the first contract (work deadlines, apartment price and warranty period) remain the same. The assignment is possible after state registration of the share participation agreement and before the transfer and acceptance certificate for this apartment is signed. Just like a share participation agreement, the assignment of rights is subject to state registration.

There is no need to coordinate the assignment with the developer (exception is cases when the share participation agreement contains a clause that the assignment of the claim is impossible without the consent of the developer). But after the assignment of rights agreement is registered, the buyer must notify the developer that the rights to the object have been transferred to him. To do this, a simple written notice is sent to the construction company. This document must contain information about the first participant in shared construction and the new investor. It is advisable to attach a copy of the assignment agreement to the notification.

Two types of assignment

According to Law No. 214-FZ “On participation in shared construction of apartment buildings,” an assignment is possible in two cases: after full payment of the contract price or with the simultaneous transfer of the debt to a new participant in shared construction.

1. If payment under the contract has been made in full, a certificate of full payment will be required for registration.

2. If the first construction participant has not paid in full, simultaneously with the assignment, the balance of the debt is transferred to the buyer. Transfer of debt to another person is possible only with the consent of the creditor. In this case, state registration will require the developer’s written consent to the assignment. If consent is not in the list of submitted documents, this is grounds for suspending the state registration of the assignment agreement.

Package of documents for the transaction

All documents required for the assignment of rights are divided into those required to register the transaction in Rosreestr, and those that the buyer needs to collect in order to protect their rights in the future.

Documents required for Rosreestr (all documents are provided in two copies: original and copy):

1) a document confirming payment under the agreement, or documents confirming the simultaneous transfer of the debt to a new acquirer;

2) written consent of the developer to assign the right of claim under the agreement (if this is provided for in the equity participation agreement, and also if the assignment occurs with the simultaneous transfer of debt to the buyer);

3) notarized consent of the spouse;

4) if the right of claim is pledged, the written consent of the pledgee;

5) the agreement on the basis of which the obligation secured by the mortgage arose (to register the assignment agreement, two parties to the agreement apply to Rosreestr);

6) consent of the guardianship and trusteeship authorities to the assignment of rights of claim under the contract, if the participant in shared construction is a minor (incapacitated).

Documents required by the buyer

When purchasing an apartment from a contractor, the buyer should be interested in two main points: whether the contractor really has the right to dispose of this object and whether payment has been made under the contract.

As a rule, a contract is concluded between the contractor and the developer, followed by a step-by-step offset of the cost of the work performed as payment for the purchased objects. As this work is completed under these two agreements: an equity participation agreement and a work contract, an offset is made.

There are two possible cases here. The first is when the apartment is re-registered to the contractor (an agreement on the assignment of the right of claim or an agreement on participation in shared construction, registered in Rosreestr, has been concluded).

“In this situation, everything is quite simple,” explains Yulia Mikhailova, lawyer at the Soyuz law office. - Using an extract from the Unified State Register of Rights to Real Estate (USRP), it is checked whether the seller is really the copyright holder, whether there are restrictions or encumbrances on the right of claim.

It is worth asking the developer whether payment has been made; as a rule, the contractor must have a registered agreement and payment certificates in hand. If there are previous copyright holders, there must be documents confirming their payment to the previous copyright holders, and so on until payment to the developer. If payment was made by offsetting mutual claims, you must require a copy of such agreements. This will protect buyers from legal claims from previous sellers. Particular attention should be paid to the conditions mandatory for contracts of this type. Without them, the contract will be considered not concluded. Since the right of claim arises from the agreement for participation in shared construction, all details of the said agreement (number and date of conclusion, as well as other information that allows us to establish the scope of the assigned claims) must be indicated in the assignment agreement.”

The second case is when the contractors do not have the legal right to claim in relation to the shared construction project; the apartment is registered with the developer or a third party.

“In this case, the buyer needs to pay special attention to the moment of transfer of funds,” says Yulia Mikhailova. - If the apartment is registered with the developer, you need to require not only a certificate, but also another document (cash receipt and check) to confirm payment. If the apartment is registered to an individual, then it is this person who must issue a receipt for receipt of funds. I would like to especially draw the attention of buyers to the fact that when making a transaction, it is necessary to study the developer’s documentation: development permit, design documentation and all changes made to its content. Papers that confirm that the developer has the right to own the land. In difficult situations, a lawyer should be hired.”

In accordance with Article 17 of Federal Law No. 214-FZ, an agreement for the assignment of the right of claim under a shared construction agreement is subject to mandatory registration in Rosreestr. The assignment agreement is considered concluded only from the moment of state registration.

Elena Khamardyuk, Head of the Shared Construction Supervision Department of the Construction Supervision and Housing Control Service:

When purchasing objects from contractors, citizens must understand what documents are necessary for such a transaction, so that if litigation arises in the future, they can defend their rights in court. It is required not only to have a certificate from the developer about the work performed by the contractor at the developer’s facilities, but also all financial documents confirming settlements between the developer and the legal entity to which the apartment was transferred (offset of mutual claims, forms of work performed), because the certificate from the developer about the work performed by the contractor is not a financial document. And if a situation arises where the developer gave up the premises, signed a share participation agreement with the contractor, and for some reason the latter did not fulfill its obligations, the work was not completed, and the property was already assigned to an individual, it will protect the interests of the shareholder.

Ekaterina Shelavina, Deputy Head of the Department for Registration of Equity Participation in Construction of the Rosreestr Office for the Krasnoyarsk Territory:

There have recently become noticeably more cases where the registration of a transaction involving the assignment of the right of claim is suspended. And although such situations, as a rule, are resolved, the parties draw up the necessary documents and registration is carried out, the buyer spends this entire month, while the assignment is suspended, in nervous anticipation.

In practice, buyers often do not check either the terms of the contract or the developer’s consent to assign the property; this leads to the suspension of registration. We make a request to the developer, and if the developer did not give consent to the assignment, but it is provided for by the terms of the agreement, registration of the agreement will be refused.

The buyer needs to carefully read the contents of the first contract for shared participation in construction, the terms on which it was concluded with the original investor, and make sure that there are no encumbrances (mortgages) on the apartment. If there were several concessions, make sure that payment was made for all.

In any case, you need to remember that all rights to the object arise only from the moment of registration, until there is an entry in the register, no matter what the seller claims, these are just his words, he can really dispose of the object only after an entry has appeared in the Unified State Register.

The most common situations today are when the seller is a contractor.

Two types of assignment

1. If payment under the contract has been made in full, a certificate of full payment will be required for registration.

Package of documents for the transaction

Documents required for Rosreestr (all documents are provided in two copies: original and copy):

1) a document confirming payment under the agreement, or documents confirming the simultaneous transfer of the debt to a new acquirer;

3) notarized consent of the spouse;

4) if the right of claim is pledged, the written consent of the pledgee;

5) the agreement on the basis of which the obligation secured by the mortgage arose (to register the assignment agreement, two parties to the agreement apply to Rosreestr);

6) consent of the guardianship and trusteeship authorities to the assignment of rights of claim under the contract, if the participant in shared construction is a minor (incapacitated).

Documents required by the buyer

The second case is when the contractors do not have the legal right to claim in relation to the shared construction project; the apartment is registered with the developer or a third party.

Elena Khamardyuk, Head of the Shared Construction Supervision Department of the Construction Supervision and Housing Control Service:

Ekaterina Shelavina, Deputy Head of the Department for Registration of Equity Participation in Construction of the Rosreestr Office for the Krasnoyarsk Territory:

Let's figure out what you need to pay attention to when drawing up a document and how to avoid the risks associated with purchasing real estate under this scheme.

Brief and to the point

The contract for the assignment of rights of claim, or otherwise - assignment, is generally regulated by Articles 382-390 of Chapter 24 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation). In relation to shared-equity housing construction, this type of transaction is described in Article 11 of Federal Law-214 “On participation in shared-equity construction...”.

None of these laws contains a list of specific requirements for the form of the agreement drawn up by the parties. One thing is clear from the Civil Code of the Russian Federation: the document must be concluded by the seller (assignor) and the buyer (assignee) in writing. It is not surprising that the variations in the “creativity” of the parties are very diverse.

You should read the equity participation agreement no less carefully. Firstly, you can assign rights to future housing only during the period specified in Federal Law-214. This can be done from the moment of state registration of the DDU, which was signed with the first shareholder, and until the receipt of the keys to the apartment under the transfer and acceptance certificate. That is, the DDU must have a stamp indicating its registration with the Rosreestr authority.

Secondly, the text of the DDU contains a clause that defines the procedure for assigning rights of claims under it. Purely theoretically, assignment may be completely prohibited. True, realtors admit that they have not encountered such a situation.

The buyer must retain the originals of the assignment agreement, DDU, as well as documents confirming the seller’s monetary settlements with the developer.

As a rule, the developer allows the conclusion of an agreement on the assignment of rights under certain conditions - charging a commission in the amount of 1-5% of the cost of the purchased object. Typically, these costs are borne by the buyer, or - by agreement - the parties share them among themselves. The assignment itself is carried out with the participation of the developer, that is, a tripartite agreement is drawn up, which is also signed by a representative of the construction company. Naturally, the fact of payment of the commission must be confirmed by a document that will remain with the buyer after completion of the transaction.

It is rare, but it happens that the developer does not require compensation. Then he should simply be notified of the change of shareholder. The assignment agreement must include a clause regulating who exactly (assignor or assignee) and within what time frame will notify the construction company about the “replacement of players.” Otherwise, the buyer may have problems at the very end - when he receives finished housing from the developer.

Money issue

According to paragraph 1 of Article 11 of Federal Law 214, the assignment of rights of claim under an agreement is allowed only after the participant in shared construction has paid the entire price of the housing under construction or after transferring the debt to a new shareholder. The ideal option is that the assignor managed to pay in full. Then all that remains, as already mentioned, is to request from him and the developer documents confirming this fact.

Text: Elena Denisenko Photo: Alexey Alexandronok

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