Sale of an apartment with encumbrance maternity capital requires a special approach to paperwork, since in this case a double burden is possible if housing was purchased by mortgage agreement. In the material presented, you can find out how you can dispose of real estate acquired using MSC funds.
The maternity capital program, among other things, is aimed at improving the living conditions of families and minors. Registration of housing in the property in this case takes into account the following features:
Thus, the disposal of maternity capital creates a situation where the right of ownership (or a separate share in it) will belong to a minor citizen. The disposal of such housing will be carried out only with the consent of the guardianship and guardianship authorities authorized to protect property interests children.
In addition, a registered encumbrance in the form of a pledge can be established on housing. This happens if at the same time as the MSC funds were used mortgage. Mortgage security can only be withdrawn in two cases:
Consequently, the participation of citizens in the maternity capital program can create a situation with one official encumbrance (mortgage pledge) and another one in the form of the child's property.
Is it possible to sell an apartment bought with maternity capital? Registered collateral established in favor of the bank is practically impossible to withdraw without repaying the full cost of the loan. The presence of such an encumbrance is the only significant guarantee that the borrower will not refuse to fulfill obligations.
The option of selling an apartment, which is burdened by the rights of minors, is more realistic, but requires special formalities.
If the right of ownership has not yet been registered for the children, but a notarial deed has been issued, the sale of the apartment will take place according to general rules making such transactions. If, after the alienation of housing, a new apartment is purchased, registering it for children will avoid problems with pension authorities. A formal violation of the obligation will not entail serious consequences if the new apartment fully meets the requirements for improvement.
To sell an apartment for which the right of ownership of minors is officially registered, you must perform the following steps:
In this case, the fact of acquiring housing at the expense of MSC funds will not affect the decision of the guardianship authorities.
In the process of verifying the application, the guardianship authorities have the right to:
Consent to the disposal of an apartment owned by a child will be issued only if his rights are not impaired in the process of registration of rights to new apartment. To do this, housing conditions (the size of the area, the number of rooms, etc.), as well as the size of the share of children in the common property right, should not worsen.
If, based on the results of consideration of the application, the consent of the guardianship authority is obtained, an administrative act of the head of the local administration is issued. It indicates the possibility of transactions, and also fixes the period during which the child must receive a share in the new object.
At the stage of registering the transaction with the Rosreestr authorities, this document must be checked if the list of owners of the apartment being sold includes minor child. In the process of acquiring new housing, a decision is not required, however, parents have an obligation to notify the guardianship authorities after the transaction.
To do this, you must perform the following steps:
Notification of the territorial body of the PFR, through which housing was purchased using MSC funds, is not required.
Thus, housing purchased under the MSC program can only be sold if there is no encumbrance on the part of the bank. The disposal of apartments registered for minor children is a common practice. Obtaining the consent of the guardianship authority in the prescribed manner makes it possible to sell the property only if the children are simultaneously provided with a new apartment.
The development of mortgage lending in Russia has caused many phenomena in financial sector that were simply not possible before. There are many examples, each has its own advantages, but at the same time, today not everyone understands what a burden on a house for maternity capital is.
First of all, it is necessary to understand what the concept of “encumbrance on an apartment” means in the legislation. Its presence is evidence that the owner of real estate for the period of existence of the encumbrance has certain restrictions on the disposal of his property. They can be either limited (i.e. introduced for a certain period of time) or permanent.
Such restrictions mean that the rights of the owner can be limited in one of three directions: in the disposal, possession and use of real estate. In extreme situations, in all three at once.
The appearance of an encumbrance on an apartment may be the result of the following actions:
Under no other circumstances can an encumbrance be imposed on real estate.
At present, this phenomenon is usually associated with obtaining bank loan. This means that when purchasing housing in a mortgage, they use mother capital for this. The apartment itself becomes a pledge to the bank until the debt is paid off. This means that the recipient of the loan has the right to live in it, but cannot dispose of it. If it is impossible to fully pay off the loan received, such real estate can be sold for public auction to pay off the debt.
Encumbrance on property implies restriction of the right to use
The law provides for several types of encumbrance on real estate:
Renting out real estate is a type of encumbrance
Availability different types burdens suggests that the ways of getting rid of them will be different.
The primary document that will be needed to remove the encumbrance from the apartment is a statement from the owner. The law does not provide for any standards for its writing. But on the Internet you can always find an approximate sample.
In addition, an approximate package of documents should also be provided:
It should be borne in mind that each territorial branch of Rosreestr (where documents are provided) may put forward additional requirements for the list of necessary certificates.
The burden on an apartment for maternity capital is not such an insurmountable obstacle. To do this, you should first contact the territorial department of Rosreestr. The specialists of the institution will check all the submitted documents and set the day on which it will be necessary to make a second visit to this structure in order to collect certificates of removal of the encumbrance from the property.
To remove the encumbrance, you will need to prepare a number of documents
Currently, there are several ways to contact the registration organization:
Alternatively, a citizen who wants to remove the encumbrance from the apartment, but does not have enough time, can seek help from specialized law firms, whose specialists will carry out the procedure for a moderate fee.
However, the applicant may be denied. In this case, it is advisable to take a written refusal in order to present it in the future in court. That is, if the issue was not resolved positively in Rosreestr, and the applicant is sure that he is right, then he needs to draw up and submit statement of claim to the court of first instance. This must be done at the location of the property.
The application must be accompanied by the same documents as during the visit to Rosreestr. Here it is important to understand the time period within which the claim should be considered. If the submitted documents satisfy the judge, the decision on the case must be made within two months. As soon as the decision enters into force, the plaintiff must receive it at the court office and then present it to Rosreestr.
It is important to fill out the document correctly
Russian legislation does not provide for a special application form for Rosreestr. But, if we turn to existing practice, we can highlight the mandatory points that this document should include:
Removing the encumbrance of maternity capital from an apartment is not a very complicated procedure, provided that the reason for its presence has been eliminated. The entire process takes approximately two months. But it is necessary to carry it out if in the future legal transactions are expected with real estate.
The video will talk about the encumbrance of real estate:
Attention! In connection with latest changes in legislation, the legal information in this article could be out of date!
Hello. I often accompany transactions when buying apartments with the help of maternity capital and help buyers remove the encumbrance from the apartment after it has been paid. The instruction is:
If the seller has left for another city or region, then you can ask him to issue a power of attorney to submit an application. For example, on the buyer himself. If the seller evades the removal of the encumbrance, demands money for this, or he died, the buyers will have to go to court (clause 1, article 25 of the Mortgage Law). No other way. The seller's evasion violates the right of buyers - clause 52 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22. The main thing is that the money from the financial capital should be transferred to the seller.
It should show that the money from the financial capital was transferred to the seller to his bank account. This is the main document for applying to the court. You need to bring a registered contract of sale, an act of acceptance and transfer of an apartment (if any) and a passport to the FIU.
Better to have it drawn up by a lawyer. It costs 1,000 - 3,000 rubles. Don't even think about downloading a sample from the internet. I personally did not find a competent sample.
The plaintiffs in the case are the buyers of the apartment (the current owners) or one of them. Respondents are all sellers ( former owners). If one of the sellers died, then his heirs will be the defendants. The third party is the regional branch of Rosreestr.
Submitted by the person named in the claim. Or a confidant.
You need to apply to the court at the location of the apartment (Article 24 and Article 28 of the Code of Civil Procedure of the Russian Federation). Usually in big cities it is district courts, in small towns and villages - the city court.
First, in the office of the court, you need to take a receipt for payment of state duty. Its size is 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation). You can pay at the courthouse itself. Then submit the following documents (originals and at least 3 copies each) to the court reception (expedition):
Within 5 working days, the judge will consider the statement of claim and decide what to do with it next - accept, reject or leave without movement.
If the judge accepts the statement of claim, the date of the preliminary hearing will be set. A maximum of one month from the date of acceptance of the application - paragraph 1 of Art. 154 Code of Civil Procedure of the Russian Federation. The court will send to the plaintiffs, the defendant (if he died, then to his heirs) and third parties written notices of the time and place of the preliminary hearing.
The preliminary meeting is a preparation for litigation. In it, the judge listens to the demands of the parties and considers the submitted documents. If there are not enough documents, the judge will indicate which ones.
After that, a date for the hearing is set. The defendants will again be sent subpoenas, but with the date of the court session.
At the beginning of the court session, the judge will announce the requirements for the claim. Then he will listen to each of the parties or the lawyer, their additions, ask questions for clarification. The judge will then announce his decision. It is always positive, because the seller's evasion in removing the encumbrance is considered a violation of the rights of apartment buyers.
If the seller-respondent was present at the hearing, the decision will be in person. It enters into force one month after the decision is made in the final form - paragraph 1 of Art. 209 and paragraph 2 of Art. 321 Code of Civil Procedure of the Russian Federation. If he was not present, then the decision will be in person or in absentia. It's up to the judge. The absentee decision comes into force in a month and 7 days -
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An encumbrance is the presence of restrictions on actions with an immovable object. Usually it arises as a result of credit obligations. After the full repayment of the debt, the restriction is removed, but for this it is necessary to take certain steps. If the acquisition of housing was carried out with the help of a certificate for family capital, the procedure takes on a special character, so you should find out how to remove the burden from the apartment after paying the maternity capital.
An encumbrance is a restriction imposed on property and restricting the owner from the unhindered exercise of the right of ownership in the matter of property management: sale, lease or gift. The owner cannot make any transactions with such an apartment until the restrictions are lifted.
Other exercise of tenure rights, such as residence in the territory or exercise repair work, is possible.
There are several types of encumbrance:
But the most popular type is a mortgage, as a result of which property becomes the subject of security for obligations. In addition to limiting the rights to manage real estate, the pledge in this case is a guarantee of the transaction.
If the debtor is unable to repay the loan to the bank, financial institution has the right to seize the subject of pledge for sale. The proceeds from the sale of the property will be used to repay the loan.
Capital is the form state support families raising offspring. It is due to families in which a second, third or subsequent child was born, provided that the parents have not previously received such assistance.
The state support program has been in effect since January 1, 2007. In 2020, the amount of the allowance is 453 thousand 026 rubles.
Capital is also called family capital, since the goals for which it can be directed take into account the interests of all members of the family.
The opinion that only the mother can apply for benefits is erroneous. The father also has the right to receive a certificate if he was not issued to the mother.
The intended purpose of spending funds can be the acquisition or construction of real estate both for cash and on credit. Improvement of living conditions includes repair work.
Other purposes for which the allowance can be spent:
Consider what a burden on a house for maternity capital is. This means that the immovable object was purchased or built using credit funds, and part of the debt was repaid with the funds of the allowance.
Restriction on property management occurs in two forms:
Any of these forms of restrictions implies the impossibility of making transactions with the encumbered object.
Mortgage debt restrictions are easily lifted. It is enough to fully repay the loan to initiate the withdrawal procedure.
It is more difficult not to fall into the trap of scammers and not to purchase an already encumbered property, because it is impossible to buy an apartment with an encumbrance using maternity capital. Before buying, you should check with Rosreestr all the information on the object. The occurrence of restrictions on actions with property is always registered by this state body.
Often, with the help of the allowance, the family fully repays the mortgage, issued even before receiving the certificate. Payment of the debt in full becomes a reason for the cancellation of the restriction.
The following features of the procedure must be taken into account:
Premature repayment of mortgage debt allows you to save on interest payments and reduce the final overpayment. Thanks to this form of state support, families have the opportunity to pay off their housing loans much earlier.
The encumbrance on an apartment purchased for maternity capital can be canceled only if the rules are strictly observed. Because the cash intended for children, the state strictly controls their spending.
To use a certificate, the following rules must be observed:
The last point is strictly controlled pension fund and guardianship authorities. Violation of this rule may result in the recognition of the transaction with the apartment as invalid, which is fraught with serious financial losses for the owner.
Before you remove the burden from a house bought with maternity capital, you need to prepare:
Procedure steps:
The basis for cancellation of the entry is a statement from the owner. It should also be mentioned what documents are needed to remove the encumbrance on maternity capital. Their set includes:
The territorial department of Rosreestr may put forward its own requirements for the composition of the kit.
In the header of the document, the owner of the apartment indicates information about himself:
In the text of the application, you need to enter the address of the encumbered object, and then list the documents attached to the application.
At the end of the application, the owner puts the date and signature.
If the borrower is not able to repay the debt due to certain circumstances, he can sell the apartment with a burden of maternity capital. Although a financial institution has the right to withdraw the pledged property, if we are talking about an apartment acquired with the participation of maternity capital, this is not so easy to do.
As mentioned above, the certificate is a family certificate, therefore, the spending is in the best interests of the children. Therefore, the bank often makes concessions and allows the borrower to sell real estate.
The sale of an apartment under maternity capital with an encumbrance is possible only after the transaction has been agreed with the creditor.
The new owner has two options for interacting with the financial institution:
There are two ways to find out if property restrictions have been imposed:
The first verification option is fast and free, but the information on the site is not complete enough and is not always up to date.
For the second method, you will have to pay 150 rubles, but the received extract will contain detailed information about the immovable object.
Most often, matkapital is used to improve the living conditions of the family. After the full repayment of the debt with funds under the certificate, it is necessary to carry out the procedure for removing the encumbrance. It has a number of features that take into account the interests of all family members. To cancel the restriction, you should contact Rosreestr with the appropriate application and a set of documentation.
Practicing lawyer. PhD in Law. Head of legal consulting department of a consulting agency. I regularly publish articles in scientific journals, as well as for several legal Internet resources.
