T. MAYOROVA
Tatyana Mayorova, lawyer.
In conditions modern Russia at the disposal of the participants of the civil law turnover is almost complete freedom of economic activity. At present, the role of the state in the regulation of market relations is reduced to the establishment of certain restrictions and rules, and independent economic entities that regulate their relations themselves, mainly through contracts, come to the fore. That is why the importance of contractual relations in the process of commercial activities is very high.
An organization may not encounter a contract that is not as common as a contract, but if it does, a number of problems may arise. When concluding an assignment agreement, counterparties face many pitfalls that can "drown" the deal.
Perhaps such a legal vulnerability of the assignment agreement is due to the fact that this species the contract is not regulated, unlike others, by a separate chapter of the Civil Code of the Russian Federation, which regulates in detail the position of the parties. The cession agreement is regulated by Ch. 24 of the Civil Code of the Russian Federation "Change of persons in an obligation" and § 1 "Transfer of the creditor's rights to another person." The Civil Code of the Russian Federation defines: the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person. Such a transition can be carried out both under the law and under the transaction, that is, including under the contract. The grounds for the transition under the law are listed in the Civil Code of the Russian Federation, but this is not the subject of our consideration.
The legislator, having established the possibility of transferring rights under the transaction, did not determine the type of contracts under which this transfer takes place, and, thus, in the case when the subject of the contract of sale is property rights (clause 4 of the Civil Code of the Russian Federation), such an agreement is essentially the same is an assignment agreement. Strictly speaking, an assignment agreement is a collective concept that includes different types assignment agreements. The essence of the cession is that the original creditor (and this is any person who has the right to claim) cedes his right to claim to the new creditor. Usually, cession agreements are concluded in situations where the fact of transfer of rights is necessary as a result. For example, an assignment agreement is often used in schemes when the organization - the original creditor is liquidated, sold, or simply "thrown" it, but uncollected debts remain. In such cases, the receivables are assigned to another organization - a new creditor (usually also its own organization), which, if the transaction is recognized as void, will simply lose the possibility of claiming, and, given the meaning and purpose of such a transaction, of course, there is no question of any compensation for losses. will be. They also use the assignment agreement in certain cases for the withdrawal of intangible assets of the enterprise. If an assignment agreement is concluded for these purposes, and the enterprise is in the process of bankruptcy, it is necessary to remember the order of precedence, otherwise the assignment agreement that violates the order (and, accordingly, the rights) of creditors may also be declared invalid with all the ensuing consequences. So, given the scope of this treaty, it is important to avoid such shortcomings that may subsequently serve as a basis for declaring it invalid.
It should be noted that the law does not allow the transfer to another person of rights that are inextricably linked with the personality of the creditor (Article 383 of the Civil Code of the Russian Federation). An example of such rights would be the right to receive alimony, the right to compensation for harm caused to health, etc. It is not allowed to assign a claim without the consent of the debtor if the identity of the creditor under the obligation is essential for the debtor (the Civil Code of the Russian Federation), and the assignment of the claim is not allowed, if it contradicts the law, other legal acts or the contract. An example of obligations in which the identity of the creditor is significant are obligations under a joint activity agreement, therefore, the assignment of claims under a joint activity agreement without the consent of all participants is impossible.
Failure to comply with the form of the transaction may also entail its nullity (art. Art., Civil Code of the Russian Federation). The form of the assignment agreement must correspond to the form of the transaction on which the right of claim is based.
We note an interesting aspect of the assignment agreement - certain legal consequences after the conclusion of the assignment agreement actually occur for the creditor and the debtor only after the latter has been notified of the assignment. This is explicitly stated in the law (clause 1, article 385 of the Civil Code of the Russian Federation): the debtor has the right not to fulfill the obligation to the new creditor until he is provided with evidence of the transfer of the claim to this person. Also, if after the conclusion of the contract (but before notification) the debtor fulfills the obligation to the old creditor, the risk of such adverse consequences lies with the new creditor. In this case, the performance of the obligation to the original creditor is recognized as performance to the proper creditor (Clause 3, Article 382 of the Civil Code of the Russian Federation). This rule ensures the protection of the debtor's interests, excluding the possibility of a new creditor's claim being made against him again. However, the risk of adverse consequences should not be understood as the inability to claim from the original creditor what was received from the debtor. Since the rights of claim under the obligation were transferred to the new creditor, the receipt by the old creditor from the debtor had no legal basis. Consequently, the new creditor has the right to demand what the debtor has performed from the old creditor as received unjustifiably.
Of great importance is the very right of claim, ceded under the contract. It must be valid, that is, existing. If a non-existent right is transferred under an assignment agreement, such an agreement will be invalid. Therefore, when concluding an agreement, special attention should be paid to documents confirming the existence of a right that the old creditor is obliged to transfer to the new one (clause 2 of article 385 of the Civil Code of the Russian Federation). Recognition of an assignment agreement as invalid in part can hardly be permissible, since usually the right to claim is defined as a specific amount (corresponding to a specific requirement), which, in turn, will be an essential condition for this agreement, and its recognition as invalid in part of it essential condition not allowed (GK RF). Thus, such an agreement is declared invalid in its entirety.
An analysis of judicial practice on the validity of assignment agreements (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 1998 N 4735/98) showed that establishing the fact of an unconditional replacement of a person in an obligation is also important. Otherwise, if there is a “lasting relationship”, that is, if the legal relations of the parties and the main obligation have not terminated at the time of the conclusion of the contract for the assignment of a claim, it should be considered that the replacement of the creditor in the obligation has not been made and the assignment agreement is recognized as invalid on the basis of the law (Article 168 Civil Code of the Russian Federation).
Of no small importance is the fact that at the time of the conclusion of the assignment agreement, the debtor had counterclaims that arose before the conclusion of the assignment agreement. With this in mind, it is advisable to find out from the debtor before concluding the contract whether he has any objections to the claim or counterclaims. According to Art. 386 of the Civil Code of the Russian Federation, the debtor has the right to raise against the claim of the new creditor the objections that he had against the original creditor. If the debtor has counterclaims, then according to the Civil Code of the Russian Federation and unambiguously established judicial practice, the debtor’s counterclaim against the original creditor is set off against the claims of the new creditor, provided that such a counterclaim arose on the basis that arose before the debtor received a notice of assignment, and the period the claim came before it was received, or this period is not specified or is determined by the moment of demand (see, for example, Resolution of the FAS MO dated October 9, 2003 N KG-A41 / 7602-03).
During the year, according to the concluded transportation agreement, company P. provided transportation services to company A. However, part of the services was not paid by company A. due to the fact that A. had claims for compensation for losses caused by company P. contract for a certain amount. But, despite the validity of the claims, P. refused to pay damages. A. did not apply to the court, as she unilaterally considered the amount of the claims to be offset against payment for services. After that, P. assigned the right to claim the debt under the transportation agreement to the new company N. under the assignment agreement, after which N. turned to court of Arbitration with a claim for debt collection. In this case, the court established the legitimacy of N.'s claims, but recognized both the validity of A.'s claims and A.'s right to compensation for damages. As a result, despite the fact that the contract for the assignment of the right to claim itself did not have any shortcomings, N. did not receive the expected real economic result from this transaction.
An important point that should be paid attention to is the compensation of the cession agreement. And although the legislator does not establish an unconditional rule for the compensation of an assignment agreement, however, given the meaning of clause 4 of the Civil Code of the Russian Federation, which prohibits donation in relations between commercial organizations, and in order to avoid the possible qualification of such a transaction by a donation agreement with subsequent recognition of its nullity, it is still better to define the agreement cession as reimbursable and make an appropriate provision in it. Of course, gratuitousness in itself is unlikely to be a defining feature in order to qualify the cession as a gift, however, taking into account other rights and obligations under the cession agreement, this may be so.
So why is such a legal mechanism dangerous for the participants in the transaction as the recognition of the transaction (contract) as invalid or void? In accordance with Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences and is invalid from the moment it is made.
In the case of an assignment, the adverse effect of declaring the assignment null and void for the new creditor would be that, as a result, it would not be the proper creditor to claim the debt. The only positive moment for him in this situation will be only that the original creditor who assigned the claim is still liable to the new creditor for the invalidity of the transferred claim (the Civil Code of the Russian Federation), which is not very comforting, given the scope of this agreement.
Assignment of the right to claim is a translation debt obligation or transfer of powers of the creditor from one person to another. In other words, initially in such relations there are two subjects - the creditor and the debtor, who have entered into an agreement with each other. Due to some circumstances, the creditor cannot wait until the debtor repays the debt. In such cases, you can transfer your rights of claim to a third party. In addition, the debtor may also change.
Assignment (cession), as a rule, is made in the form of a written contract. It is possible to transfer one's powers orally only in exceptional cases. Why, in fact, may the assignment of the right of claim be necessary? For example, the lender gave the borrower a certain amount of money. According to the terms of the agreement, he must return this amount, say, in 2 years. However, the lender needed these funds ahead of schedule. He cannot claim them until the time specified in the agreement has elapsed, in such cases he has the opportunity to transfer his powers on demand Money to another person. Of course, the third party has its own benefits in this case: it plans either to pay a smaller amount to the creditor, or to collect additional interest, default, fines, etc. from the debtor.
It may be the other way around. In legal relations, the debtor may change. True, this can only happen if the creditor agrees to this.
It should be noted that when changing the lender, the borrower is not asked for permission, but it is worth informing about the change of the "player". But there is one exception. If the debt is inextricably linked purely with the personality of the creditor, then the right to claim cannot be assigned without the permission of the debtor. This applies to alimony, payments of compensation for damage caused to health, life, property, etc.
The assignment of the right to claim a debt, based on a transaction that is made in a simple written or notarial form, must also be made in the appropriate form. However, many make the mistake of concluding an act or protocol instead of a treaty. If the case goes to court, then such a document can easily be canceled. There may also be cases where the assignment of a claim is carried out in relation to a transaction that is subject to state registration, then it will also need to be registered.
At the same time, the usual written form, which is used most often, also has a lot of "pitfalls". According to the assignment agreement, permission to change the lender is not required, but the borrower must be notified of this. If the debtor changes, the assignor must not only agree to this, but also check the solvency of the new participant in the transaction. And the borrower, in turn, has the right to demand from the assignee (new creditor) to provide documents related to the obligations transferred to him.
Such an agreement belongs to the category of compensated, consensual and bilateral transactions. The essence of the conclusion of such an agreement is the refusal of the creditor from his right in relation to the debtor to demand the fulfillment of certain obligations and the transfer of such powers to another person. The legal status of the participants in such an agreement can be any. The subject of the cession - binding right or right to claim. Due to the fact that the law does not regulate the price of such an agreement, the amount of payment under the transaction is determined by the parties independently.
It should be noted that the contract of assignment of the right to claim contains many nuances. A sample agreement might look something like this:
If an assignment of the right of claim is made, where the debtor changes, then the parties to the contract will, of course, be the original borrower and the new debtor. Both individuals and legal entities can act as a borrower (there are no restrictions here). The new member will have to assume all debt repayment responsibilities. Remember: if the creditor doubts your solvency, he may not agree to replace the debtor. If the assignor allows this, then the new borrower will need to reconcile the figures for the debt. The lender can be, for example, financial institution or an individual.
If the debtor changes, how then to conclude an agreement on the assignment of the right to claim? An example of such an agreement is as follows. Specify:
All other sections of the contract will not change. The future debtor will also need to hand over acts of reconciliation, additional agreements, calculations and other documentation.
Whatever one may say, when changing the debtor, the assignee is always at risk. Therefore, when you draw up a contract for the assignment of the right to claim, you must be very prudent. The following documents of title should be requested from the debtor: an order on his appointment (for legal entities), a sample of his signature, in some cases it would be useful to request permission or a license. If you are convinced that the new participant can be considered in good faith, then you can agree to transfer the debt. You can grant permission in a separate letter.
People who have purchased an apartment at the construction stage, sometimes for various reasons, are forced to sell it even before the object is put into operation. Is it possible in this case to transfer the rights of claim to the apartment? Of course. But it should be noted that this can only be done during the construction period of the facility. If there is already an act of acceptance and transfer, then the cession agreement cannot be concluded by law. The change of ownership in such a situation will be concluded through a contract of sale. However, if the rights of the equity holder have not yet been realized, then he may well cede his right to claim.
Such an agreement, of course, is in writing. However, developers often indicate in the agreement that the conclusion of an assignment document is prohibited or establish that for this it is necessary to obtain their consent. If there is no such norm, then you can conclude an agreement on the assignment of the rights to claim an apartment.
Since the document on equity participation requires state registration, the agreement on the assignment of rights is also subject to such a procedure. If the transaction between the developer and the assignor is not registered, then the first one may completely refuse to transfer the finished object to the assignee.
After state registration, the new shareholder fully assumes the same obligations and rights to the developer that the former right holder had. He also bears the same risks as other co-investors.
If you decide to transfer your share or you want to become a new creditor, then first of all, of course, you need to draw up an agreement. At the settlement stage, the parties use the mechanism of bank cells. After the papers are issued to the assignee, the seller will be able to collect the money.
It is necessary to notify the debtor (that is, the developer) that there has been an assignment of the right to claim an apartment. All documents are also certified by a seal.
Most often, the subject of the contract is credit debt. As already mentioned, a bank or other financial institution may be a party to such an agreement. In addition, if the creditor changes, the debtor can simply be informed of this, but you do not need to ask his permission. If he is not informed of this, the borrower has the right not to pay a fee under such an agreement.
A debt assignment agreement is a transaction that is concluded between credit institutions, according to which one bank transfers its authority to claim a certain amount of money to another.
When issuing an assignment agreement financial institutions also constitute an act of acceptance and transfer. The new creditor is not entitled to change or indicate in the document about his terms of repayment of the debt. This means that the new lender cannot change even the most insignificant requirements of the transaction. If he nevertheless applies such innovations, then the agreement can be invalidated.
If the bank intends to transfer interest on the loan, then this must be indicated in the agreement. You can delegate authority to demand the repayment of a loan by the borrower at any stage of the loan agreement.
When transferring the rights to claim a loan, a written agreement is drawn up. So, what is the assignment of the right to claim a debt? An example of such a document is as follows:
In Russia, the assignment of the right to claim is still used quite rarely. In the United States, this practice has long been widely used. For example, many Americans often look at real estate with an outstanding loan. However, the Russians are still rather vague about all the subtleties and benefits of such an agreement. And absolutely in vain. Assignment can often be a great way out of a situation.
It must also be understood that a third party also has its advantages. For example, a debtor who is unable to repay a mortgage debt has the opportunity to purchase this housing cheaper. However, there is also a risk that he will have to face inconvenient conditions for repaying a loan (repayment of fines, high stakes). At the same time, it is worth noting that the accounting for the assignment of the right to claim has not been officially clarified.
In the event that a person becomes an assignee, you can count on receiving a loan in full. But at the same time, there is a chance of being left with nothing at all.
Another problem with such transactions is Russian legislation regulates this issue too superficially. As a result, you may encounter various legal difficulties.
We figured out what the assignment of the right to claim means. It is simply unrealistic to select a sample for all cases. However, we have fully covered the regulatory provisions that each transaction on the assignment of powers should contain. In addition to the mandatory conditions, the parties may include additional ones that do not contradict the law.
In the last decade, there has been an active development of the field housing construction. In addition to the housing itself, the object of purchase and sale transactions can also be the right to real estate in a house under construction. A new type of investment has appeared - the purchase of apartments in new buildings at the initial stages of building construction. In this case, the sale of apartments in new buildings is also possible under an assignment agreement.
The person who enters into construction company treaty equity participation, receives primary rights to real estate, which can be transferred to a third party.
What does the assignment of an apartment in a new building mean? This concept is called a transaction for the transfer of these rights. It is also called a cession. The parties to the transaction - the seller and the buyer - are called, respectively, the assignor and the assignee.
The third party here is the developer company, since the apartment assignment agreement involves the transfer of rights and obligations in relation to it. After the execution of the contract, all disputed points will be resolved by the assignee with the developer. A feature of this type of purchase and sale of real estate is that the transaction can be completed before the housing is put into operation and the acceptance certificate is signed. The cession agreement is valid until the new building is legally put into operation.
There are two types of real estate transactions.
The first type is based on an agreement on equity participation in the construction of a residential building. The assignor has the right to sell housing only after he has fully paid for it. In practice, situations also arise when the buyer is transferred to the obligation to pay the debt. Up to the moment, such agreements can be concluded more than once.
The second type is based on a preliminary contract of sale. The rest of the debt is transferred in full to the buyer. This does not record the transfer of real estate from the seller to the buyer. The meaning of the agreement is that in the future the parties are obliged to draw up an assignment agreement. If the contract is terminated, the money paid is returned to the buyer.
The assignment of an apartment in a new building is a multi-stage process for both the buyer and the seller.
The seller needs:
The buyer is only required to issue consent from the spouse for the purchase of housing, and then sign the contract for the assignment of the apartment. A sample is usually available from the developer, it can also be freely downloaded on the Internet. The conclusion of the contract takes place in the office of a construction company or in a law office. Registration can be done at any MFC or at a Rosreestr subdivision. At the time of conclusion of the contract, the presence of a representative of the registration authority and both parties to the transaction is mandatory. Also, the seller pays the state duty for registering the document. Within 10 working days the contract is registered.
The sale of apartments in new buildings under an assignment agreement at first glance seems to be a simple and understandable procedure. There are points to which special attention should be paid.
Without a third party, namely the developer, the transaction cannot take place. If an apartment is being sold by assignment to a mortgage, the participation of the creditor bank is also necessary.
The construction company may require the seller to high interest from the deal. Unfortunately, it is impossible to fight such arbitrariness, since such actions are not regulated by law.
The real estate for sale should not be encumbered.
The transaction is generally considered safe, since it is carried out under the supervision of the state registration authority. However, there are risks for the buyer.
The contract must specify the total cost of the apartment. In the event of a claim, the specified amount is returned to the buyer. If the document does not indicate the amount of the transaction, it is recognized as invalid.
The same apartment can be repeatedly sold by assignment, so you need to familiarize yourself with the entire history of such transactions. The assignment agreement does not need to be registered. The transaction will be safe if you register it. Payment is made after the buyer receives the package of documents.
Usually after the right holder learns about the insolvency construction organization, followed by the sale of the apartment by assignment. In this case, the buyer will no longer be able to recover even part of the funds paid in court.
The assignment of an apartment in a new building is considered invalid if the seller has not provided an extract from the bank, written permission from the bank and the developer, as well as if the value of the property is underestimated. The transaction is also invalid if the contract is executed during the period when the developer is officially declared bankrupt.
Assignment of rights to real estate is not possible after the act of acceptance and transfer has been signed or when the purchase and sale transaction has already been completed. The sale can be made when the seller has already taken ownership of the property. Often, a significant period of time passes between the delivery of real estate and obtaining ownership. Before the primary investor receives ownership of the apartment, he can transfer his rights - re-register documents retroactively. If the cession is executed under an agreement on equity participation in construction, you can change the date on the acceptance certificate. When preliminary contract you can change the date of conclusion of the main document.
The assignor, according to the Tax Code of the Russian Federation, must pay tax on the sale of real estate. Wherein income tax in the amount of 13 percent, the amount that is the difference between the cost of housing under the DDU and on assignment is taxed. For example, if an apartment was purchased from a developer for 2,000,000 and sold by assignment for 2,100,000, the tax is charged on 100,000. Accordingly, you need to pay a tax of 13,000.
Buying an apartment on assignment is one of the modern types of investment. At the initial stages of construction, apartments are sold at a lower cost (sometimes 5-20% cheaper than from the company) than in a finished house. Thus, this is one of the opportunities to save money when buying a home.
For persons who have entered into an equity participation agreement, assignment is the only option not to lose the money invested in the event that he has unforeseen circumstances and wants to return it to himself. Termination of the DDU is fraught with penalties from the developer. In addition, the cession provides an opportunity to make a profit.
The obvious disadvantage is that the seller is required to a large number of documentation. In addition, most of the documents must be coordinated with the bank and the developer. The developer may require a substantial percentage for issuing his consent.
For the buyer, the cession may turn out to be a fraud, since the DDU may be invalidated by the developer. Then the cession automatically becomes invalid. In order not to be deceived, you will have to spend a significant amount of time studying and checking the documentation. Often, the assistance of qualified lawyers is required, which involves certain material costs.
The assignment of an apartment in a new building is a process that has many "pitfalls". If you are going to acquire real estate, the right step would be to contact a lawyer who specializes in such transactions.
Often, in the most attractive new buildings in terms of location and prestige, apartments are sold out even at the initial stage of construction.
In the future, when the construction of a high-rise building is nearing completion, apartments are actively resold. It happens that in time construction works The apartment changed its owner several times.
On what grounds are such apartments resold? What contract should be signed? And what to consider when making a deal?
An assignment in real estate is, in fact, but it is concluded by drawing up an assignment agreement in accordance with the requirements of the Civil Code of the Russian Federation.
In accordance with such an agreement, a person who is the seller of an apartment in a newly built house (shareholder) transfers to the other party to the agreement (assignee) all your rights and obligations to the developer as a shareholder.
The general rules for concluding an assignment agreement (otherwise the execution of an assignment of the right to claim) are indicated in articles 382-390 of the Civil Code of the Russian Federation.
With regard to equity participation in the construction of real estate, such transactions are described in article 11 federal law№214-FZ"On participation in the shared construction of apartment buildings ...".
The meaning of the assignment agreement is that the new owner of the apartment, who received it as a result of the assignment agreement, fully bears all the rights and obligations to the developer company, indicated in the original equity agreement.
A significant part of the assignment agreements in relation to real estate is concluded between the investor and the developer in the early stages of construction.
Often, the sale of an apartment by assignment occurs even before all the necessary permits are issued. As a rule, the price of future apartments at this time is minimal.
In the final stages of the construction of an apartment building, the cost of housing in them increases significantly. Thus, investors in the resale of such apartments can make a considerable profit.
As equity holders in the construction of a new building, not only investors can act, whose goal is to make a profit.
Participants shared construction there may be individuals who wish to purchase housing for themselves at a low price.
However, during construction, due to certain circumstances Potential landlords may change their mind.
In addition to the fact that they need to return the money invested, they need to somehow avoid fines from the developer for non-compliance. In this case, the conclusion of an assignment agreement is the most optimal solution (if not the only one).
Conclusion of an assignment agreement avoid penalties that could arise in the event of termination of the equity participation agreement. And by selling an apartment in this way, its owners can even get additional profit, since the rise in price of apartments in new buildings occurs throughout the construction.
Real estate assignment transactions can be concluded repeatedly until the residential premises are actually handed over by the developer, before the execution of the act of acceptance and transfer of the property.
Making transactions with real estate under an assignment agreement has its own positive sides for both the buyer (assignee) and the investor (shareholder):
If real estate was purchased from a developer company, then the assignee does not need to pay mortgage payments over a long period of construction. He begins to pay at the final stage of construction work, and often immediately before settling.
But lie in such transactions and certain cons:
When concluding an assignment agreement, the buyer must clearly understand that from the moment the document is signed, he does not receive the apartment itself, but only rights of claim regarding the future construction object.
That is, the maximum that the assignee can count on is to demand that the developer deliver the house under construction on time and in due form. This is precisely the subject of the cession agreement.
The buyer will receive the apartment itself only after signing.
At the same time, the developer himself without fail notification of a change in the person applying for an apartment in a new building. Otherwise, the new owner may have difficulties at the final stage.
In order for the document on the basis of which the assignment of claims takes place to have legal force, it must contain certain conditions:
In order to protect yourself as much as possible, the cession agreement must reflect in advance the responsibilities of the parties and the probable reasons for terminating the agreement, as well as ways to resolve disputes.
The peculiarity of buying an apartment is that when making a deal, close attention should be paid not so much to the agreement itself, but to the documentation that the assignor and the developer are required to provide.
In the event of force majeure, the seller does not bear any responsibility to the buyer regarding the timing of delivery and the quality of the property. All issues will have to be resolved with the developer.
When concluding a transaction for the assignment to the buyer all construction documentation should be carefully checked, as if he were buying an apartment directly.
The important point is and . It must have a registration mark in Rosreestr. Otherwise, it may be invalid.
Also need pay attention to the interest payment to the developer from the cession transaction. These costs are usually the responsibility of the buyer. But you can draw up an agreement under which the amount will be divided equally between the two parties to the transaction.
Payment must be confirmed by a payment document, which is subsequently kept by the buyer.
Another "pitfall" can be revealed if. In the event that the assignor previously made payments not on schedule, with delays, then for this interest and penalties could be assessed.
When the deal has already been concluded, the additional costs are borne by the buyer. And besides the fact that he must make mandatory installment payments, he will also have to pay debts and penalties.
Despite all the possible difficulties and risks, the assignment agreement is a fairly simple document in civil law. With the correct design of all necessary documentation and a detailed study of the history and reputation of the developer, the risk of such transactions can be minimized.
The video tells what is an assignment agreement for real estate transactions and in what cases it is concluded.
Answers are given, what and to whom it is convenient given form transfer of real estate, what may be the risk of concluding such a transaction, how to protect yourself when buying an apartment on the assignment of claims.
”, it is impossible to fit all the nuances of the assignment of rights under an equity participation agreement in one article. Therefore, we have to open a series of articles on the intricacies and complexities of this process. First, let's remember
Clause 2 of Article 11 of the Federal Law 214-FZ.
The assignment by a participant in shared construction of the rights of claims under the contract is allowed from the moment of state registration of the contract until the signing by the parties of the transfer act or other document on the transfer of the shared construction object.
The contract from the assignor (the first shareholder who assigns the right to claim the apartment under the contract) must be registered with Rosreestr.
Your assignment agreement (assignment of rights) must also be registered with Rosreestr.
The price of the contract must be paid by the assignor (the first shareholder) in full. Otherwise, the one who assumed the rights, and, accordingly, the debts under the DDU, pays.
Now I continue to add information read on legal forums from practicing lawyers:
When concluding a contract of assignment of rights, you receive in your hands
According to lawyers, the certificate of the absence of debt to the developer from the first shareholder is not enough. Original payment documents are required.
Important! After receiving documents on payment of the price of the equity participation agreement from the equity holder who assigns the rights to you, conduct self-check. Having taken the originals of payment documents, go to the construction company and ask for a reconciliation of mutual settlements at the time of your request. Trust between the parties when concluding a deal is, of course, an important thing. But when paying for an apartment, it is better not to rely on it.
Find out why the assignor assigns rights to you. It may very well be that the developer has great difficulties and the construction becomes problematic. Therefore, equity holders begin to run away from the new building.
It is unlikely that the seller will tell you the truth. Search for yourself, the Internet will help you. Well, the SPbflat blog, of course :) I try to post everything that I find useful for new buildings and developers.
Reconciliation of documents must be ordered at the current moment of transfer of rights and carried out personally or through a competent specialist. And issue as an official document from the developer.
Please note that there are time intervals between putting the house into operation and signing the acceptance certificate between the equity holder and the construction company. Assignment of rights at this time causes difficulties. You shouldn't get involved in them.
Another point: you can lose money when drawing up an assignment agreement. But how exactly this can happen, read in This one has to end - it turned out to be too long, and there are still enough pitfalls when assigning rights under the DDU. So see you on the blog pages. Of course, if you are interested :) And yes, the article appears on the same day in the VK group (subscription widget to the right of the article). So, if you want to be in the know, I will be glad to have a new subscriber :) As always, I wish you good luck.
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