Buying an apartment on the secondary market: be careful, crazy people! How to check the seller's sanity? Don’t be shy to ask awkward questions and ask for help. “Sanity test”: is it necessary to do a medical examination before a transaction with real estate?

In any civil law transactions between individuals, a key role is played by legal capacity And legal capacity these same individuals - participants in transactions.

By default, it is assumed that every adult citizen of the Russian Federation is fully has legal capacity And capable. Otherwise, he does not have the right to independently carry out transactions.

And if he did make such a deal ( signed a contract for the sale and purchase of an apartment, for example), then this transaction becomes invalid as soon as it turns out that the Seller of the apartment had no authority to do so or was incapacitated .

We are not talking about the Buyer of the apartment here, because... reason to take the money and then terminate the deal for a reason "incapacity" can only be from the Seller.

Civil legal capacity of an individual

Legal capacity a person is called his ability ( more precisely, a legal possibility) have civil rights and bear certain responsibilities provided by law. Those. to be a bearer of rights and obligations, to be a subject of law, according to Opens in a new tab.">Article 17 of the Civil Code of the Russian Federation.

Legal capacity a citizen arises from the moment of his birth, and is recognized equally by all citizens of the Russian Federation. Legal capacity inseparable from the personality of a citizen. You can't deprive a person legal capacity.

In relation to transactions with apartments, legal capacity The seller means he has legal rights possession, use and disposal apartment.

Legal capacity to sell an apartment

Legal capacity refers to the ability of a person to act freely in accordance with his own legal capacity . These actions can serve him to realize his rights, can give him new rights, but also impose on him duties and responsibility for his actions.

Declaring a person incompetent

A citizen can ONLY be declared legally incompetent by a court decision.. This happens due to obvious mental disorder a person, and his inability to understand the meaning of his actions (Opens in a new tab.">Article 29 of the Civil Code of the Russian Federation). The court can deprive such a person legal capacity, and install over it guardianship (from among his immediate environment, for example).

Guardian becomes the legal representative of the ward, and makes all civil transactions on his behalf and in his interests ( incl. real estate transactions).

The court decides on incapacity of a citizen based on the results forensic medical examination, which installed him serious mental disorders . Initiate such examination in relation to a citizen, his relatives can , prosecutor or psychiatric hospital (Opens in a new tab.">Article 281 of the Code of Civil Procedure).

A milder option used by the court is restriction of a citizen's legal capacity(Opens in a new tab.">Article 30 of the Civil Code of the Russian Federation). This happens when a person is not able to cope with his addictions ( for example, drinking, drugs, etc.), as a result of which his loved ones suffer. The court can limit one's legal capacity, and assign over it guardianship .

Citizen with limited legal capacity can independently carry out small household transactions, but large transactions ( incl. on alienation of real estate), he has the right to perform only with the consent of your guardian .

If a citizen is recognized by a court incompetent or limited by the court in legal capacity, then according to the law, the court must notify about this within 3 days Guardianship and trusteeship authorities at the citizen’s place of residence, in order to establish over him guardianship or guardianship (Opens in a new tab.">Clause 2 of Article 34 of the Civil Code of the Russian Federation).

Any real estate transactions, affecting rights of incapacitated or limited persons, are carried out only with written permission Guardianship and trusteeship authorities.

Certificates from ND and PND - what are they?

When selling an apartment, realtors sometimes require the Seller to certificates from ND and PND, citing the desire to make sure that the Seller is completely capable.

Certificate from ND- this is a certificate from drug treatment legal capacity questionable.

Certificate from the IPA- this is a certificate from psychoneurological dispensary at the Seller’s place of residence that he is not registered with them. If it is listed, then it is legal capacity questionable.

But! Important clarification! If the Seller is registered in ND or HDPE, that doesn't say anything about him incapacity (Only the court can decide this issue), but increases associated with possible incapacity.

And the opposite situation - if at the time of conclusion of the transaction there was no court decision on incapacity Seller, then later there is still a risk challenging the deal for this reason. The court may recognize the Seller incompetent or limit his legal capacity already after the transaction, and consider that at the time of its completion he did not understand the meaning of his actions (Opens in a new tab.">Article 177 of the Civil Code of the Russian Federation). And this is already a reason for.

Those who are registered with ND or HDPE this risk is obviously higher. To reduce this risk, appropriate certificates are taken.

True, there is good news for the Buyer of the apartment: from March 2015, paragraph 2 of the above Article 177 of the Civil Code of the Russian Federation supplemented with a condition under which the transaction can be recognized invalid, if the Seller is subsequently sued limited in capacity, and considered that at the time of the transaction he did not understand the meaning of his actions, and ( important!) The buyer knew about this ( those. I saw that the Seller was mentally ill, but still made a deal with him).

At the same time, do not confuse the concepts "recognized incompetent" And "limited in capacity" (differences - see above).

How to confirm the legal capacity of the Apartment Seller in a transaction

To confirm legal capacity The seller at the time of signing

How to check the Seller of a real estate property for legal capacity?

In the previous instructions, we said that when communicating with Sellers from risk groups, it is necessary that he provide you with certificates from the IPA and ND. In this article I will talk in more detail about other ways to check the owner’s legal capacity.

1. Personal communication and getting to know your immediate environment.

You can understand how adequate a person is through direct communication. I think that you will also agree that already at the first contact, in the presence of a severe mental disorder, it is easy to conclude that our Seller is clearly unwell. And this is a reason for the court to declare him incompetent.
In order not to remain solely in your opinion regarding the adequacy of the owner, you definitely need to talk with his neighbors, acquaintances, representatives of the housing department, and the district police officer. It wouldn’t hurt to take a look at his pages on social networks. If he has oddities or noticeable deviations from the norm, then this may result in unpleasant consequences for you.

2. Indirect evidence of the Seller’s health.

When buying an apartment, you are faced with significant risks, so you should not neglect even such little things as information that the owner has recently undergone a medical examination for a car license, driving a vessel or obtaining a weapon, as well as information about whether he has received these documents. This is your assurance that he has been formally assessed for mental health.

3. We certify the transaction with a Notary.

This point is mandatory, even if you cannot complete the first two. When certifying a purchase and sale agreement, the lawyer must make sure that at the time of its conclusion both parties are capable and sane. Since the notary bears legal and financial responsibility for his activities, it is not in his interests to lose attention to the fact of the inadequacy of one of the parties. If necessary, in addition to the certificates from the IDP and ND that you bring, he can independently request the information he needs from the Unified State Register of Rights (USRP).

4. Official medical examination.

If there are real suspicions that by entering into a transaction with this Seller, you are putting yourself at risk due to his possible inadequacy, then you have serious reasons to invite a medical professional. The physician will assess the Seller’s condition and issue a written official certificate of his ability to bear responsibility for his decisions and actions. The inspection is carried out on the day the contract is concluded. By the way, this is a common practice if the owner of the property is a very elderly person.

To refuse or not to refuse the deal?

Even if we really like the apartment, but the Seller behaves strangely and categorically refuses to undergo an inspection, my advice is not to risk it, refuse the deal.
What do you mean by strange behavior?
· If a person is clearly dressed inappropriately for the situation (for example, a woman’s dress on a man or a costume look);
· performs strange actions (chases spirits, casts spells);
· talks about “being bugged day and night, and he has installed reflectors.”
Manifestations can be different, but usually they are obvious.

However, there are other situations when, even if the Seller is obviously strange, a transaction is possible for you. Namely, if there are official documents restricting his rights to independently perform legal actions (certificate of b limitation of legal capacity or complete incapacity citizen).

To purchase in both cases, you must obtain the consent of not only the owner of the property, but also his legal representative. In addition, permission from the guardianship and trusteeship authorities is required. In the first case, the Seller will sign the documents himself with the confirmation of the guardian; in the second, the signature is placed by the official guardian.
So, we have looked at the situation, how you can protect yourself when making a transaction with an incapacitated citizen. In the following instructions, I will tell you what risks await you when buying an apartment from a trusted person, and not personally from the owner.

Take care of yourself when making real estate transactions!
Sincerely, your Svetlana Orlenko.

Buying an apartment is an important step in the life of every person. Many young families choose housing in new buildings, purchasing it from construction companies, thereby becoming the first owners of the apartment. But it’s not always possible to buy a conveniently located room or apartment in a new building, and you have to look for options for buying real estate “out of hand.” There are a lot of nuances in such a case, and the real estate market is filled with scammers and simply legally illiterate sellers, because of whose actions the buyer may ultimately suffer.

To buy an apartment without unnecessary problems, you can turn to professionals who guarantee verification of all documents and nuances that could lead to problems. But if you are purchasing real estate on your own, it would be a good idea to find out what documents need to be checked when purchasing an apartment, as well as study other important rules that will be discussed in this article.

What documents to check when buying an apartment to determine ownership

When buying an apartment, you need to check the documents that indicate the seller’s ownership of the property. Depending on how the seller received the apartment, you will need to look at various documents.

If the apartment is privatized to the seller, you need to look at the following documents:

• Technical passport, which describes the technical aspects of the property, including information on the condition of the living space and its size;
• A certificate recorded in a bureau indicating that the seller owns the property being sold.

If the purchased housing is a cooperative one, you should also check the technical passport, but the certificate of ownership must have a slightly different form and be issued by the main housing department.

If the seller previously bought his apartment from other owners, be sure to check the purchase and sale agreement, which must be notarized and registered with the BTI. And if the housing area was received by the seller by inheritance, then he must also have the corresponding document certified by a notary and in the BTI.

The most difficult thing is to check documents when purchasing an apartment that was acquired by the seller as a result of legal proceedings. It will be necessary to check not only the court decision registered in the BTI, but also many other documents, which may vary depending on the situation. Among these documents:

When ownership has been established, you must contact the BTI to request a certificate, which is a characteristic of the apartment. There may be a problem with obtaining this certificate if redevelopment was carried out in the residential premises, which was not legalized. It is impossible to sell apartments with illegal redevelopment, and the seller will need to follow the appropriate procedure and pay an administrative fine for changes made to the design of the premises.

Attention: In some cases, the owner may face criminal penalties for illegal redevelopment of an apartment.

According to the laws of the Russian Federation, only a legally competent adult can sell real estate. The problem is that not all sellers agree to provide documents from drug treatment and psychological dispensaries. However, the seller’s reluctance to receive such certificates does not at all indicate his incapacity, but it should alert the buyer. There are several ways to establish the seller’s legal capacity if he refuses to independently obtain these certificates:

It is important to note that even the presence of a certificate from an independent expert will not provide the court with 100% proof of a person’s legal capacity. If at the time of the sale of the apartment he was registered with a drug treatment center, as a result of a legal dispute over the apartment, this fact may become important when making a decision. Each case is individual, but having a certificate from an independent expert significantly increases the buyer’s chances of defending his rights to an apartment in court if necessary.

It is important to ask when checking an apartment extract from the Unified Register of Real Estate Rights. Often sellers have this document with them, and if this is the case, then pay attention to the date of its issue; it is advisable that it be as “recent” as possible. If desired, the buyer can independently order an extract. It will allow you to find out who has the rights to the property and whether there are any encumbrances placed on it.

You should also definitely take extract from the house register, which will allow you to verify the correctness of the privatization of the apartment (if any took place). In addition, an extract from the house register will allow you to find out the number of transactions carried out with real estate. It can also be used to determine the number of people registered in the apartment.

Ask the apartment seller to present you certificate from the housing office that the apartment has no debt to pay for housing and communal services.

If minors live in the apartment, you need to make sure that they are not registered there. When minors are registered in the purchased property, problems may arise with guardianship authorities. Make sure that they are aware of the sale of the apartment and agree that the child will be removed from the property and registered in a new place of residence.

The notary may request information from the Unified Register of Prohibitions on Alienation of Real Estate, which will allow you to check whether the apartment was part of the collateral when registering loan obligations. Also, using this certificate, you can determine whether the apartment is included in the authorized capital of an organization, enterprise or company.

If the seller of the apartment purchased it during marriage, it is better to ask him for a certificate confirming that the ex-spouse is not against the sale of the property. Also, ideally, you can require written consent to sell real estate from all residents of the apartment, even if they are not registered in it.

It’s quite easy to check the documents yourself when purchasing real estate. Often sellers themselves collect the maximum package of documents before showing the apartment to the buyer. In such a situation, pay attention to the dates of the certificates issued, and if they turn out to be out of date, ask the seller to order new ones or do it yourself.

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It plays a very important role in a real estate transaction. An incapacitated apartment seller has no right to commit. If, after all, a purchase and sale transaction took place, and then it turned out that the seller was incompetent, the transaction will be declared invalid.

Implies that this citizen acts freely and exercises his rights in accordance with the law. The seller's capacity also means that he understands the meaning of his actions and the consequences of his actions.

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This means that he can sell the apartment and is responsible for the transaction by signing the terms of the apartment purchase and sale agreement.

A capable seller can be held accountable, but an incompetent seller cannot.

A citizen of the Russian Federation can be declared legally incompetent only by decision of a judicial authority. The court recognizes a person as incompetent if he has a mental disorder and is unable to understand the meaning of his actions. The court recognizes the citizen as incompetent and establishes guardianship over him. The guardian is selected from among relatives and friends. At the same time, the guardian is a full-fledged representative of the incapacitated citizen and has the right to make transactions on his behalf and sign documents.

In addition, the interests of the incapacitated apartment seller are represented by the guardianship authorities. Any transactions for the purchase and sale of real estate, the owner of which is an incapacitated citizen, must be permitted only with the written permission of the guardianship authorities.

How to confirm the legal capacity of the seller of an apartment?

Proved by providing a certificate from a narcological dispensary (ND), a psychoneurological dispensary (PND). The certificate proves the citizen's legal capacity.

A certificate from a drug treatment center indicates that the seller of the apartment is not registered with the drug treatment center. If the certificate indicates that the seller of the apartment is registered with the ND, this immediately indicates that it is possible The competence of the apartment seller is in question.

A certificate from a psychoneurological clinic is issued at the place of residence of the apartment seller. It should also indicate that the citizen is not registered with them. If the certificate indicates that the citizen is registered with the PND, he may be incapacitated.

This does not automatically mean that the seller of the apartment, who is registered in the ND or in the PND, is incapacitated. Issues of incapacity can only be decided by the court. But the security of a purchase and sale transaction by which seller clearly has great risks.

Even if at the time of concluding a real estate transaction the legal capacity of the apartment seller was proved by the fact that there is no court decision on his incapacity; the consequences are that the court may declare the seller incompetent. And another court, on the basis of the seller’s incapacity, may declare the purchase and sale transaction invalid.