Legal aspects

In accordance with paragraph 1, clause 1, article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), real estate is objects that are firmly connected with land. It is impossible to move such objects without incurring disproportionate damage to them. This category of property includes land plots and subsoil plots, forests and perennial plantations, buildings and structures, non-residential and residential premises, construction in progress, etc.

For example, a hangar is classified as real estate if it is a permanent building or part of it (non-permanent buildings, such as panel houses, frame prefabricated structures, do not meet the criteria for non-permanent movable property). But household premises on wheels or railway cars have no connection with the ground and can be easily moved without prejudice to their purpose.

There are exceptions to this rule. The Civil Code classifies as real estate:

Air and sea vessels;
- inland navigation vessels;
- space objects;
- enterprises as property complexes in general.

When accounting for real estate, it is worth remembering that the rights to these objects and transactions with them are subject to mandatory state registration. What is the difference between registration of rights and registration of transactions?

Registration of rights and transactions

Real estate often becomes the object of a wide variety of actions performed by citizens and legal entities in order to establish, change or terminate civil rights and obligations. Such actions are called transactions. Transactions include all civil law contracts: purchase and sale, rent, rent, exchange, donation, etc.

The rights arising on the basis of a real estate transaction are subject to state registration in the cases and in the manner provided by law RF. According to paragraph 1 of Article 131 of the Civil Code of the Russian Federation, the following real rights (including their limitation, transfer and termination) are subject to registration in the Unified State Register of Rights to Real Estate (USRR):

Ownership;
- the right of economic management;
- the right of operational management;
- the right of lifetime inheritable possession;
- the right of permanent use;
- mortgage;
- easements, etc.

Legislation may provide for the need to register the transaction itself. Currently, this requirement remains in relation to contracts:

• rent real estate- Clause 2, Article 609 of the Civil Code of the Russian Federation;
• lease of a building, structure (for a period of at least 1 year) - clause 2 of article 651 of the Civil Code of the Russian Federation;
• lease of an enterprise - clause 3 of article 658 of the Civil Code of the Russian Federation;
• lease of a land plot (for a period of at least 1 year) - clause 2 of article 26 of the Land Code of the Russian Federation;
• on mortgage - paragraph 1, clause 1, article 10 federal law dated July 16, 1998, No. 102-FZ “On Mortgage (Pledge of Real Estate)”;
• participation in shared construction- Clause 3, Article 4 of the Federal Law of December 30, 2004 No. 214-FZ “On participation in the shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts Russian Federation».

Based on Federal Law No. 302-FZ of December 30, 2012 “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation”, effective March 1, 2013, the rule on registration of real estate transactions does not apply to contracts:

• purchase and sale of a residential building, apartment (part of a residential building, apartment) - clause 2 of article 558 of the Civil Code of the Russian Federation;
• purchase and sale of an enterprise - clause 3 of article 560 of the Civil Code of the Russian Federation;
• donation of real estate - clause 3 of article 574 of the Civil Code of the Russian Federation;
• alienation of real estate against the payment of rent - Article 584 of the Civil Code of the Russian Federation;

The procedure for state registration is established by Federal Law No. 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with It” (hereinafter - Law No. 122-FZ). For the performance of registration actions, a state fee is charged, the amount of which is determined in accordance with clause 1 of article 333.33 of the Tax Code of the Russian Federation. For example, the fee for registration of rights to real estate for legal entities in 2015 is 22,000 rubles. (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). Moreover, the payment is made by the organization - the buyer, unless otherwise provided by the contract. According to paragraph 1 of article 14 of Law No. 122-FZ, the state registration of rights is documented at the choice of the copyright holder:

Certificate of state registration of rights;
- an extract from the USRR (Unified State Register of Rights).

A registered transaction (agreement) is certified by a special registration inscription on the document, which expresses the content of the transaction.

Cadastral registration

Real estate is also subject to cadastral registration on the basis of the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre” (hereinafter - Law No. 221-FZ). Its list includes:

• land;
• building;
• structures;
• premises;
• construction in progress.

The provisions of Law No. 221-FZ do not apply to the following objects:

• subsoil plots;
• aircraft;
• sea ​​vessels;
• inland navigation vessels;
• space objects;
• enterprises as property complexes.

Russian legislation does not establish a direct obligation to put real estate on the cadastral register. However, in order to make any transaction (purchase, sale, lease) with real estate, you need to have ownership of the object, which must be officially registered. In turn, to obtain a certificate of state registration ownership for real estate, you must first register the object in the state real estate cadastre (STC). Thus, cadastral registration is a prerequisite for the participation of real estate in civil circulation. The rules of cadastral registration apply to:

• land plots- from 01.01.2008;
• buildings, structures, premises, objects of construction in progress - from 01.01.2013

What is cadastral registration? This is a procedure for entering information about real estate into the state real estate cadastre (GKN) - a register of information about registered real estate in the territory of the Russian Federation. Cadastral registration has a number of main objectives:

1. confirmation of the existence of the object;
2. confirmation of the termination of the existence of the object or information about it;
3. individualization of the object among other similar objects;
4. definition cadastral value object.

In accordance with the Decree of the Government of 06/01/2009 No. 457 immovable objects for cadastral registration, maintaining state cadastre real estate (GKN) deals with federal Service state registration, cadastre and cartography (Rosreestr). In the constituent entities of the Russian Federation, these functions are performed by the authorized body of Rosreestr - Cadastral Chamber. You can also contact the multifunctional center (MFC) operating in the region.

Each property is assigned a state registration number (or cadastral number). It is unique and permanent.

There is no state duty for cadastral registration of immovable property.

Contract of sale

The acquisition of real estate is carried out under a contract of sale. The relationship of the parties arising from this agreement, are governed by the general provisions of paragraph 1 of Chapter 30 of the Civil Code of the Russian Federation, as well as by the special provisions of paragraph 7 "Sale of real estate" (Articles 549 - 558) and paragraph 8 "Sale of an enterprise" (Articles 559 - 566) of Chapter 30 of the Civil Code of the Russian Federation.

According to Article 549 of the Civil Code of the Russian Federation, under a contract for the sale of real estate, the seller must transfer real estate to the buyer: land, building, structure, etc. The buyer, in turn, must accept this real estate, paying a certain sum of money(Article 454 of the Civil Code of the Russian Federation).

The contract for the sale of real estate is not subject to state registration and is considered concluded from the moment it is signed by both parties (clause 1 of article 433 of the Civil Code of the Russian Federation).

The immovable object is transferred by the seller and accepted by the buyer under a signed transfer act or other transfer document (Article 556 of the Civil Code of the Russian Federation). After that, the contract is considered fulfilled. However, the buyer will be able to dispose of the property received into possession only when he becomes its full owner, i.e. after the state registration of the transfer of ownership in the USRR. The seller is also not entitled to dispose of the immovable object after its transfer and until the moment of state registration of the transfer of ownership, since he is no longer its legal owner, therefore he is not able to exercise his rights as an owner in relation to this property.

Big deal

Another important point, which you need to know and remember when buying expensive real estate. If the value of the property to be acquired is:

• for an LLC - 25% or more of the value of the company's property, unless the charter of the LLC establishes a higher percentage threshold for a major transaction (clause 1, article 46 of the Federal Law of February 8, 1998 No. limited liability»);
• for joint-stock companies - 25% and more from book value assets of the company (paragraph 1, clause 1, article 78 of the Federal Law of December 26, 1995 No. 208-FZ “On joint-stock companies Oh");

then the transaction is considered large. Under these circumstances, the decision to enter into a major transaction should be made:

in LLC:

• general meeting of participants;
• the board of directors - the supervisory board, when the value of real estate is in the range from 25% to 50% of the value of the property of the LLC (if the decision is within the competence of the board of directors);

in AO:

• by the general meeting of shareholders, when the value of real estate exceeds 50% of the book value of the assets of the JSC (the decision is made by ¾ of the votes);
• Board of Directors - Supervisory Board unanimously, when the value of real estate is from 25% to 50% of the book value of the assets of the JSC.

Violations of legal requirements in relation to a major transaction may result in its invalidity.

Accounting

The actual costs of acquiring real estate subject to state registration are accumulated on “Investments in non-current assets”:

• sub-account 08-1 "Acquisition of land plots";
• subaccount 08-2 "Acquisition of objects of nature management".
• sub-account 08-4 "Acquisition of fixed assets".

Debit 08-4 (08-1, 08-2) - Credit 60
- reflects the costs of acquiring real estate subject to state registration.

Debit 08-4 (08-1, 08-2) - Credit 60, 70, 69, 71, 76, ...
- reflected additional costs associated with the acquisition of real estate subject to state registration (information and consulting services, intermediary services, etc.).

In order to reflect the object on, you do not need to wait for the submission of documents for state registration of property rights to this property. The organization has the right to transfer an asset to fixed assets if its initial cost is formed (subject to the conditions of clause 4 of PBU 6/01). This is indicated by paragraph 52 of the Guidelines for accounting fixed assets approved by the Order of the Ministry of Finance of the Russian Federation of October 13, 2003 No. 91n (hereinafter - the Methodological Guidelines for Accounting of Fixed Assets No. 91n) as amended by the Order of the Ministry of Finance of December 24, 2010 No. 186n (effective from January 1, 2011).

Reference. According to the previous edition of clause 52 of the Guidelines for Accounting of Fixed Assets No. 91n, an immovable object was accounted for as a fixed asset if (1) its initial cost was formed; (2) the primary documents for the acceptance of the transfer were executed; (3) the facility was actually operated; (4) the documents were submitted for state registration.

The norm of clause 52 of the Methodological Guidelines for Accounting for Fixed Assets No. 91n also clarifies that real estate objects that are not registered in the generally established manner are accounted for on a separate sub-account of account 01 (03). At the same time, postings are made in the accounting.

Debit 01 (03), sub-account "Immovable objects that have not passed state registration" - Credit 08-4 (08-1, 08-2)
- real estate that has not passed state registration is recorded on a separate sub-account of the fixed assets account.

After registration of the right of ownership, the immovable object is transferred to fixed assets, the rights to which are registered:

Debit 01 (03), sub-account "Real estates that have passed state registration" - Credit 01 (03), sub-account "Real estates that have not passed state registration"
- real estate was transferred to the composition of fixed assets (profitable investments in material assets) that have passed state registration.

State duty accounting

How?

In accounting, the costs of state registration of the transfer of ownership of a real estate object should be included in its initial cost. The basis for this is clause 8 of PBU 6/01. Usually there are no problems with regard to the costs of paying stamp duty and other expenses when they are incurred in the process of determining the initial cost of the asset. In this case, the organization will reflect them in the accounting as follows.

Debit 68 - Credit 51

Debit 08-4 (08-1, 08-2) - Credit 68
- the state duty for registration of rights to real estate is taken into account in the initial cost of the fixed asset object.

Debit 08-4 (08-1, 08-2) - Credit 60.76
- other costs associated with the registration of rights to real estate are taken into account in the initial cost of the fixed asset object (paperwork, notary services, etc.).

However, the state duty is accounted for differently in a situation where the object is already included in fixed assets. The fact is that clause 14 of PBU 6/01 contains a closed list of grounds for changing the initial cost of a fixed asset:

Completion;
- additional equipment;
- reconstruction;
- modernization;
- partial liquidation;
- revaluation.

Therefore, the costs of state registration incurred after an independent inventory object has been formed cannot increase its value. It is necessary to take into account such expenses as other expenses on account 91 “Other income and expenses”, subaccount 2 “Other expenses”.

Debit 68 - Credit 51
- funds were transferred from the current account to pay the state fee for registration of rights to real estate.

Debit 91-2 - Credit 68
- expenses for the payment of state duty for registration of rights to real estate, incurred after the object was accepted for accounting as a fixed asset, were taken into account.

Debit 91-2 - Credit 60.76
- other expenses for state registration of rights to real estate incurred after the object was accepted for accounting as a fixed asset (documentation, notary services, etc.) are taken into account.

When?

Expenses for state registration of rights to real estate are recognized in accounting when the three conditions of clause 16 of PBU 10/99 are met:

1. the expense is carried out in accordance with the terms of the contract (requirement of the legislation, business custom);
2. the amount of the expense can be determined;
3. there is confidence that when a particular operation is performed, the economic benefits of the organization will decrease.

However, every fact economic life must be drawn up as a primary document (Part 1, Article 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter - Law No. 402-FZ)).

For example, state duty:

1. charged as required by law;
2. its size is determined by the norms of the Tax Code;
3. as a result of paying the fee, the economic benefits of the organization (?) are reduced.

On the last condition, one should sharpen Special attention. Is the moment of payment the date when the expense should be charged?

Based on subparagraph 5.2 of paragraph 1 of article 333.18 of the Tax Code of the Russian Federation, the state fee for registration of rights to real estate is transferred to the Federal budget:

• before submitting an application for registration;
• after filing an application for registration, but until the moment of its consideration, if the application is submitted electronically.

By paying the state duty, the organization may refuse to perform legally significant actions. Then, according to clause 4, clause 1, article 333.40 of the Tax Code of the Russian Federation, the funds are subject to return. Therefore, the transfer of the fee to the budget is not a sufficient basis for recognizing the expense in accounting. The date for accrual should be considered the day of submission of documents for registration. It is then that the third necessary condition is met: diminishing economic benefits. After the registration actions have begun, the organization can no longer refuse to complete them and demand a refund of the fee paid. The fact of receipt of documents for state registration is confirmed by a receipt, which the registering authority issues to the applicant (clause 6, article 16 of Law No. 122-FZ).

VAT accounting procedure

The amount of "input" VAT presented by the seller to the buyer of real estate is deductible after the acceptance of the fixed asset for accounting, provided that tax legislation(Art. 171, Art. 172).

According to subparagraph 17 of paragraph 2 of article 149 of the Tax Code of the Russian Federation, the state duty and other types of duties and fees are not subject to VAT.

Tables 1 - Accounting entries for accounting for the acquisition of fixed assets subject to state registration

No. p / p	Contents of operation	Debit	Credit
1	Reflected the purchase price of the real estate object (excluding VAT)	08-4	60
2	Simultaneously with the wiring of paragraph 1: Accounted for VAT on the purchased object based on the supplier's invoice	19	60
3	Reflected additional costs associated with the purchase of a fixed asset: delivery, information and consulting services, loading and unloading, etc. (excluding VAT)	08-4	60, 70, 69, 71, 76, …
4	Simultaneously with the wiring of clause 3: Added VAT on additional expenses	19	60,71, 76, …
Situation 1: Expenses for the state duty were made before the reflection of the object on account 01
5		68	51
6	The cost of the state duty for registration of rights to a real estate object is included in the initial cost of the fixed asset	08-4	68
7		01	08-4
8		68	19
9		68	19
Situation 2: Expenses for state duty are made after reflecting the object on account 01
5	The object of immovable property is accepted for accounting as a fixed asset at its original cost	01	08-4
6	Claimed for VAT deduction on acquired fixed assets	68	19
7	Claimed for VAT deduction on additional costs associated with the purchase of a fixed asset	68	19
8	Transferred funds from the current account to pay the state duty for registration of rights to a real estate object	68	51
9	The costs of the state duty for registration of rights to a real estate object are reflected as part of other expenses	91-2	68

Example 1.

In mid-May, My Eda LLC acquired a premises for a food warehouse under a sale and purchase agreement for 4,720,000 rubles, including VAT (18%) - 720,000 rubles. Since the object is fully suitable for its intended use, the organization transferred it to fixed assets and put it into operation.

Documents for registration of rights to real estate were submitted to the registration authority in early June. The amount of the state fee for legal entity amounted to 22,000 rubles. In July, the ownership of the premises was registered.

Reference data:

1. the company applies the general taxation system (OSNO).
2. in accordance with the working chart of accounts approved in accounting policy LLC "My Eda" for accounting purposes, immovable fixed assets are accounted for in the following sub-accounts.

Working chart of accounts LLC "My Food"

The code	Name
01	fixed assets
01-1
01-2
.......	.......

Solution.

The following entries will be made in accounting.

No. p / p	Contents of operation	Debit	Credit	Amount, rub.
May
1	The cost of the acquired premises is reflected (excluding VAT)	08-4	60	4 000 000
2	The amount of "input" VAT on the real estate object is taken into account	19	60	720 000
3	The object was accepted for accounting as a fixed asset at the initial cost and put into operation: the premises are reflected in the composition of immovable objects, the rights to which are not registered	01-1	08-4	4 000 000
4	The amount of "input" VAT on the acquired premises was presented for deduction	68	19	720 000
June
5	Transferred from the current account funds for the payment of state duty for registration of ownership of real estate	68	51	22 000
6	The state duty for registration of ownership of a real estate object was taken into account in other expenses of the organization	91-2	68	22 000
July
7	Premises are taken into account in the composition of immovable objects that have passed state registration	01-2	01-1	4 000 000

In accordance with paragraph 21 of PBU 6/01, the organization will begin to depreciate the warehouse from July.

End of example

income tax

For the purposes of taxation of income, immovable objects acquired by an organization for economic activity, are accounted for as part of depreciable property, provided they meet the criteria paragraph 1, clause 1, article 256 of the Tax Code of the Russian Federation .

Fixed assets are accepted for tax accounting at their original cost, which is determined in accordance with the procedure established by paragraph 1 of Article 257 of the Tax Code of the Russian Federation. Subsequently, this cost is expensed through depreciation. According to paragraph 4 of Article 259 of the Tax Code of the Russian Federation, for depreciable property, the rights to which are subject to state registration, depreciation is charged in the generally established manner, as for any other fixed assets: from the 1st day of the month following the month the object was put into operation. At the same time, the organization does not need to wait for the date of state registration of ownership of real estate or document the fact of filing documents with the registration authority.

Reference. The rules of clause 4 of article 259 do not apply to fixed assets that the organization began to use before 2013. The previously existing norm of paragraph 11 of Art. 258 of the Tax Code of the Russian Federation did not give organizations the opportunity to depreciate objects subject to state registration earlier than the deadline for documented submission of documents for registration of rights to property. From January 1, 2013, this norm ceased to be valid due to the entry into force of the Federal Law of November 29, 2012 No. 206-FZ.

But not all immovable objects are subject to depreciation. According to paragraph 2 of article 256 of the Tax Code of the Russian Federation, land plots and other objects of nature management (subsoil, water, etc.), objects of unfinished capital construction and others. Some fixed assets are completely excluded from the composition of depreciable property (clause 3 of article 256 of the Tax Code of the Russian Federation).

Depreciation premium

Based on clause 9 of Article 258 of the Tax Code of the Russian Federation, an organization has the right to reduce the initial cost of a fixed asset by a depreciation premium, the amount of which may be:

• no more than 10% of the initial cost of an object belonging to 1, 2, 8-10 depreciation groups;
• no more than 30% of the initial cost of an object belonging to 3-7 depreciation groups.

The decision to use the depreciation bonus and its size must be fixed in the accounting policy for tax purposes.

Depreciation premium included in indirect costs of the reporting (tax) period in which the fixed asset begins to be depreciated (paragraph 2, clause 3, article 272 of the Tax Code of the Russian Federation). Taking into account the provisions of paragraph 4 of Article 259 of the Tax Code of the Russian Federation, the write-off occurs in the month following the month when the real estate is put into operation. At the same time, the object itself, after commissioning, is accepted into the depreciation group at original cost less premium.

If the fixed asset, in respect of which the depreciation bonus was applied, was sold within 5 years from the date of its commissioning to an interdependent person, then the premium is subject to recovery in the reporting (tax) period of the sale transaction (paragraph 3, paragraph .9 article 258 of the Tax Code of the Russian Federation).

Reference. Until January 1, 2013, the norm of paragraph 3, clause 9, Article 258 of the Tax Code of the Russian Federation did not contain an indication of a specific category of persons to whom the sale of property was carried out.

Another important point. The depreciation bonus applies only to depreciable fixed assets, i.e. to those objects that are subject to depreciation in tax accounting. So part of the cost of a land plot cannot be written off as expenses in the form of a depreciation premium, since in accordance with paragraph 2 of Article 256 of the Tax Code of the Russian Federation, land is not depreciated.

The accounting legislation does not provide for a depreciation bonus. Therefore, its application for tax purposes will necessarily lead to differences between the amounts of depreciation accrued in accounting and tax accounting.

Acquisition of a building and land under it

When purchasing real estate, an organization may encounter some difficulties in determining its initial value. For example, in practice, a situation may arise when a contract for the purchase of a building (structure, building, etc.) and the land plot under it specifies a single cost. The norm of clause 2 of Article 555 of the Civil Code of the Russian Federation clarifies that in such cases the established price of a building or other real estate includes the price of the land plot on which the object is located (unless otherwise provided by law or contract). In addition, the law does not oblige the parties to the transaction when buying and selling several real estate objects to indicate the price separately for each of them.

However, it will not work to take the building and the land plot into account as a single one. Such a conclusion follows from paragraph 2, clause 6 of PBU 6/01, its legitimacy is confirmed by the Ministry of Finance of Russia in a letter dated May 19, 2003 No. 04-02-05/3/50. The fact is that the building has a limited lifespan. beneficial use, and for the earth it is not set at all. (In addition, in accordance with paragraph 1 of paragraph 4 of Article 374 of the Tax Code of the Russian Federation, the land plot is not subject to property tax. tax base.) This means that these immovable objects must be taken into account separately. This raises the question, what part of the cost is attributed to the building, and what part - to the land?

The current legislation does not give a clear answer to the question posed, there are practically no official explanations from officials, and judicial practice has not yet developed. You can solve the problem in several ways:

1. conclude an additional agreement to the contract of sale, where to indicate the cost of each real estate object. Although this solution is the most acceptable, it is not always possible;
2. by expert way: using the data of an independent assessment, proportionally divide the total cost between real estate objects. But it is worth noting that the use of this method does not exclude the possibility of disputes with tax authorities;
3. distribute the costs of acquiring several real estate objects on the basis of a base chosen and justified by the organization (for example, in proportion to the cadastral value of a building and a land plot). This opinion was expressed by representatives of the Ministry of Finance of Russia in a letter dated June 28, 2013 No. 03-05-05-01 / 24812. Moreover, the option of calculating the cost of the building by subtracting from the total amount appraised value land, proposed by the author of the letter, did not find its support from the financial department.

The organization must remember that, choosing for itself one or another procedure for dividing the total cost between several real estate objects, it takes a certain risk. What is it connected with? The norm of clause 7 PBU 1/2008 allows you to develop accounting methods if they are not established by law. But in tax code does not provide such an opportunity, because tax rules should be the same and understandable to all taxpayers. Therefore, any developed method tax accounting, not enshrined at the legislative level, may cause claims of inspectors.

Additional costs incurred when purchasing fixed assets that require registration of rights are distributed among the objects in the appropriate proportion.

Tax accounting of state duty

How?

Also, as in accounting, the procedure for tax accounting for expenses related to state registration of rights to real estate depends on the moment they were made:

1. before putting the facility into operation;
2. after the facility is put into operation.

In the first case, expenses should be taken into account when forming the initial cost of the fixed asset. This point of view is shared by the Ministry of Finance of Russia (letters: No. 03-03-06/1/113 dated March 4, 2010, No. 03-05-05-01/26 dated May 19, 2009, No. 03-05-05-01/26, dated March 27, 2009 No. 03-03-06/1/195, etc.). He substantiates his position by the norm of paragraph 1 of Article 257 of the Tax Code of the Russian Federation. According to this rule, when buying an immovable object, its initial cost consists of the costs of acquiring, delivering and bringing it to a usable condition. At the same time, only VAT and excises are not included in the amount, and the state duty is not included in this list.

In the second case, the expenses are written off at a time as other expenses related to production and sales (clause 40, clause 1, article 264 of the Tax Code of the Russian Federation). Argument in favor given order accounting is that when an object of fixed assets is put into operation, its initial cost has already been formed and is not subject to change, with the exception of the grounds listed in paragraph 1, clause 2, article 257 of the Tax Code of the Russian Federation, namely:

• completion;
• additional equipment;
• reconstruction;
• modernization;
• technical re-equipment;
• partial liquidation;
• other similar grounds.

Registration of rights to real estate is not among such grounds. Therefore, in the situation under consideration, the cost of the state duty cannot increase the initial cost of the fixed asset. The validity of these conclusions is also confirmed by the Ministry of Finance of Russia in its letter dated February 11, 2011 No. 03-03-06/1/89.

In addition to the above procedure for accounting for the costs of state registration of rights to real estate, there is an alternative approach. According to him, the state duty should be included in other expenses, regardless of when it was accrued: before or after the commissioning of an item of fixed assets. The arguments here are as follows:

The state duty is charged for registering the transfer of ownership of an already acquired object;
- the fact of payment of the state duty does not affect the suitability of the object for use.

This means that the state duty is an independent type of expense that is not associated with the acquisition, delivery and bringing the fixed asset to a usable operational condition.

In addition, in accordance with Article 13 of the Tax Code of the Russian Federation, the state duty refers to federal fees. Therefore, on the basis of subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation, the organization has the right to take into account such costs as other expenses.

Earlier, this position was also supported by the Ministry of Finance of Russia (letters: No. 03-03-06/1/725 dated October 19, 2007; No. 03-03-04/1/116 dated February 16, 2006; No. 03-03-04/1/165, dated March 30, 2005 No. 03-03-01-04/1/137). However, later clarifications by financiers on the issue of accounting for state duty until the facility is put into operation contain conclusions that such expenses are involved in the formation of the initial cost of the fixed asset.

Due to the ambiguity of existing opinions, the organization, guided by the norm of clause 4 of article 252 of the Tax Code of the Russian Federation, can independently determine the group of expenses, which will include the costs of state registration of ownership of real estate. The selected accounting option must be fixed in the accounting policy for tax purposes (paragraph 5 of article 313 of the Tax Code of the Russian Federation).

When?

In order to take into account state duty for the registration of rights to real estate for the purposes of taxation of profits, 3 main principles for the recognition of expenses, which are formulated in paragraph 1 of Article 252 of the Tax Code of the Russian Federation, must be observed:

1. the expense must be justified;
2. the expense must be documented;
3. the expense must be associated with an activity that is aimed at generating income.

If all of the above conditions are met, then an expense is accrued in tax accounting. But when exactly is it necessary to do this: when paying state fee or transfer of documents for registration?

From subparagraph 5.2 of paragraph 1 of Article 333.18 of the Tax Code of the Russian Federation, it is known that settlements with the budget for legally significant actions are made:

• prior to filing an application for registration;
• after filing an application for registration, but until the moment of its consideration (when the application is submitted electronically).

If we accrue the expense on the day of payment, it turns out that we are ahead of the event with which the transfer of the state duty is associated. Registration actions have not yet begun and may not even take place (at the initiative of the applicant). In the latter case, the organization has the right to return the transferred funds (clause 4, clause 1, article 333.40 of the Tax Code of the Russian Federation), and then the accounted expense will turn out to be unreasonable. Therefore, it is methodologically correct to recognize the expense on the date of submission of documents to the registration authority. After the documents are accepted, the organization can no longer refuse to perform legally significant actions for which the state fee was paid.

Example 2.

At the beginning of August JSC "Metal Rolling Plant" acquired a production building under a purchase and sale agreement for 35,400,000 rubles, including VAT (18%) - 5,400,000 rubles. and the land plot under it for 20,000,000 rubles, excluding VAT (according to clause 6, clause 2, article 146 of the Tax Code of the Russian Federation).

The real estate company "Partner" provided a service for the purchase of real estate worth 354,000 rubles, including VAT (18%) - 54,000 rubles.

At the end of the same month, the organization accepted the assets fully prepared for use as fixed assets and put them into operation. In accordance with the order of the head of the useful life production building was 30 years and 6 months or 366 months (10 depreciation group). Since the land is not subject to depreciation (paragraph 5, paragraph 17 of PBU 6/01, paragraph 2 of Article 256 of the Tax Code of the Russian Federation), then the useful life for it is not established.

In early September, documents were submitted for state registration of property rights to immovable objects. Previously, the organization transferred to the budget a state duty for registration actions in the amount of 22,000 rubles. for each object.

In early October, ownership of the building and land were registered.

Reference data:

1) the society is on common system taxation (OSNO);
2) according to accounting policy JSC "Metal Rolling Plant" for the purposes of accounting and tax accounting:
- depreciation on all fixed assets is charged linear way;
- useful life is determined according to the Classification of fixed assets included in depreciation groups (approved by Decree of the Government of the Russian Federation of 01.01.2002 No. 1);
- additional costs associated with the receipt of several immovable objects are distributed in proportion to the purchase price of these objects in accordance with the contract (excluding VAT);
3) in accordance with the accounting policy of JSC "Metal Rolling Plant" for the purposes of tax accounting
- a depreciation premium is applied to depreciable fixed assets. (For objects of the 10th depreciation group, the amount of the premium is 10% of the initial cost);
- expenses for real estate services are included in the initial cost of fixed assets;
4) in accordance with the working chart of accounts approved in the accounting policy of JSC "Metal Rolling Plant" for accounting purposes, immovable fixed assets are accounted for on the following sub-accounts.

Working chart of accounts JSC "Metal Rolling Plant"

The code	Name
01	fixed assets
01-1	Immovable objects that have not passed state registration
01-2	Immovable objects that have passed state registration
.......	.......

Solution.

In accounting, the organization must form 2 independent inventory objects: a production building and a land plot. Moreover, the costs of real estate services, which are associated with the acquisition of these real estate assets, must be distributed.

1. The cost of services, which will be included in the initial cost of the production building.
. Calculation: Cost of services of a realtor x Price of the building without VAT / (Price of the building without VAT + Price of the land plot) = 300,000 rubles. x 30,000,000 rubles. / (30,000,000 rubles + 20,000,000 rubles) = 180,000 rubles;

2. The cost of services, which will be included in the initial cost of the land.
. Calculation: The cost of realtor services x Price of the land plot / (Price of the building without VAT + Price of the land plot) = 300,000 rubles. x 20,000,000 rubles. / (30,000,000 rubles + 20,000,000 rubles) \u003d 120,000 rubles.

The organization will reflect the acquisition of immovable objects in accounting with the following entries.

No. p / p	Contents of operation	Debit	Credit	Amount, rub.
August
1	Reflected the cost of the acquired production building (excluding VAT)	08-4	60	30 000 000
2	The amount of "input" VAT on the production building is taken into account	19	60	5 400 000
3	Reflected the cost of the acquired land (excluding VAT)	08-1	60	20 000 000
4		08-4	60	180 000
5	Reflected the cost of real estate services included in the initial cost of the building (excluding VAT)	08-1	60	120 000
6	The amount of "input" VAT on real estate services is taken into account	19	68	54 000
7	The production building is accepted for accounting as a fixed asset at its original cost and put into operation (reflected as part of immovable objects, the rights to which are not registered)	01-1	08-4	30 180 000
8	The land plot was accepted for accounting as a fixed asset at its original cost and put into operation (reflected as part of immovable objects, the rights to which are not registered)	01-1	08-1	20 120 000
9	The amount of "input" VAT on the acquired industrial building was presented for deduction	68	19	5 400 000
10	The amount of "input" VAT on real estate services is presented for deduction	68	19	120 000

Starting from the 1st day of the next month (September), the accountant of the JSC will begin to calculate depreciation for the production building in accounting and tax accounting. (A land plot is not recognized as a depreciable object.) However, when calculating depreciation charges for income tax purposes, a depreciation premium (10%) must be taken into account.

Calculation of depreciation (A) using the straight-line method:

• In accounting:

1. Agod \u003d Initial cost x Depreciation rate (year) \u003d 30,180,000 rubles. x 100% / 30.5 g. = 989,508.20 rubles.
2. Ames = Agod / 12 months. = 983,606.56 rubles. / 12 months = RUB 82,459.02

• In tax accounting:

1. Ames \u003d (Initial cost - Depreciation premium) / Useful life (months) \u003d (30,180,000 rubles - 30,000,000 rubles x 10%) / 366 months. = 74,262.29 rubles.

The calculation shows that the amounts of depreciation deductions that are written off in accounting and tax accounting are not the same. This is due to the fact that for the purposes of taxation of profits, the organization may include 3,000,000 rubles in expenses. from the initial cost of the object in the form of a premium already in the 1st month of depreciation, while this cannot be done in accounting. Thus, the total amount of expenses that the organization will be able to take into account in September will be:

• in accounting - 82,459.02 rubles;
• in tax accounting - 3,074,262.29 rubles. (= 3,000,000 rubles + 74,262.29 rubles), which is 2,991,803.27 rubles. (= 3,074,262.29 rubles - 82,459.02 rubles) more than in accounting.

The resulting taxable temporary difference in the amount of RUB 2,991,803.27. generates a deferred tax liability (IT):

• IT \u003d Taxable temporary difference x 20% (income tax rate) \u003d 2,991,803.27 rubles. x 18% = 598,360.65 rubles.

In September (the month of the start of depreciation on fixed assets), the organization will accrue in the accounting of IT. Accounting entries will be as follows.

No. p / p	Contents of operation	Debit	Credit	Amount, rub.
September
1	Transferred from the current account funds for the payment of state duty for registration of ownership of a real estate object - an industrial building	68	51	22 000
2	State duty for registration of ownership of a real estate object - an industrial building	91-2	68	22 000
3	Transferred from the current account funds for the payment of state duty for registration of ownership of a real estate object - a land plot	68	51	22 000
4	The state duty for registration of the right of ownership to an object of immovable property - a land plot	91-2	68	22 000
5	Reflected the depreciation of the production premises for September	20	02	82 459,02
6	Reflected the accrual of IT	68	77	598 360,65

AT next month(October) depreciation in accounting will be charged for 8,196.73 rubles. (= RUB 82,459.02 - RUB 74,262.29) more than for tax purposes. This amount will partially reduce the taxable temporary difference that arose in September and, as a result, will repay the accrued IT in the corresponding amount: 8,196.73 rubles. x 20% = 1,639.35 rubles.

No. p / p	Contents of operation	Debit	Credit	Amount, rub.
October
1	The production building is included in the composition of immovable objects that have passed state registration	01-2	01-1	30 180 000
2	The land plot is taken into account in the composition of immovable objects that have passed state registration	01-2	01-1	20 120 000
3	Reflected depreciation for the production building for October	20	02	82 459,02
4	Reflected partial write-off IT	77	68	1 639,35

Accounting entries for the calculation of depreciation on the production building and the repayment of IT, similar to entries No. 3 and No. 4 of October, should be made in accounting monthly for the remaining useful life until the value of the fixed asset is fully written off or removed from the register.

Month	Accounting				tax accounting
	depreciation charge	accrual of IT	writing off IT	remainder IT	depreciation charge	depreciation premium
September	82 459,02	598 360,65	-	-	74 262,29	3 000 000
October	82 459,02	-	1 639,35	596 721,30	74 262,29	-
november	82 459,02	-	1 639,35	595 081,95	74 262,29	-
December	82 459,02	-	1 639,35	593 442,60	74 262,29	-
.......	.......	.......	.......	.......	.......	.......
At the end of useful life
365 months	82 459,02	-	1 639,35	1 639,35	74 262,29	-
366 months	82 459,02	-	1 639,35	0	74 262,29	-
In February, the value of the production building and deferred tax liability(IT) will be written off in full

End of example

Document flow

In accordance with paragraph 1 of Article 556 of the Civil Code of the Russian Federation, the fact of the transfer of an immovable object is documented:

• deed of transfer;
• other transfer document.

Based on clause 81 of the Methodological Guidelines for Accounting of Fixed Assets No. 91n, an object is transferred by one party to the ownership of the other party under the act of acceptance and transfer of fixed assets. unified form of this primary document, OS-1a was developed by the State Statistics Committee of Russia (Resolution No. 7 of January 21, 2003). The act is filled out and signed by both parties to the transaction, both the seller and the buyer.

It is also worth noting that part 4 of article 9 of Law No. 402-FZ does not prohibit organizations from using their own forms for registration of accounting transactions. In this case, the primary document must contain all required details provided for in Part 2 of Article 9 of Law No. 402-FZ.

If we move from sociology closer to the problems of legal technique, it should be noted that land law is undoubtedly the most difficult area of ​​customary property law for a variety of reasons economic properties which we have combined into the category of factors external to the norm rather than exceptions to the rule in real estate transactions. None human society can not be considered organized if it is not able to guarantee the exclusive rights of an individual or group of individuals to certain economic ...

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Page 3

Page

Introduction………………………………………………………………….
Chapter 1. Essence of real estate…………………………..
Chapter 2. The right to real estate in Russia…………………....
chapter 3. Methods of acquiring real estate……………
conclusion……………………………………………………………..
List of used literature……………………….

introduction

Different legal systems are indeed unanimous in the fact that land is a particularly important object of property relations. Although the falsity of the thesis that the earth is the most important part of material assets in modern society a large share of total wealth today is represented by equity capital and other forms of movable property nevertheless, the fact remains that the rules governing land relations can be considered as a paradigm of modern property law.

Indeed, the present state of many areas of private law has been the result of an evolution following the revolutionary changes in land ownership that characterized the dismantling of the feudal organization of society. The system of free land ownership is one of the fundamental institutions market economy, based on the competition of individuals, as opposed to a feudal-type economy, in which not the market, but the social hierarchy rules society.

If we move from sociology closer to the problems of legal technique, it should be noted that land law is undoubtedly the most complex area of ​​​​traditional property law due to a number of economic reasons, which we have combined into the category of factors external to the norm, rather than exceptions to the rule. in real estate transactions.

The purpose of the work: the study of the civil law regime of real estate.

Tasks:

1. consider the essence of real estate;
2. consider the features of the right to real estate in Russia;
3. explore ways to acquire real estate.

Chapter 1. Essence of real estate

Of course, the concept of immovable property in various legal systems includes, in addition to land, many other items (for example, buildings and other permanent fixtures of real estate are almost universally included in this category). It is therefore important to try to trace motives, other than chance, in the historical development of typology (different from one legal system to another), which determine the choice for known objects of the same legal regime as for the earth, despite the fact that they are uniquely different from the latter. . Before proceeding to an appropriate analysis of the problem, let us dwell briefly on the earth itself.

Throughout the Western legal tradition, land is part of what can be owned as real estate. Of course, as discussed above, the concept of "real property" adopted in common law does not quite correspond to the concept of immovable property. However, in history common law most of land fund was protected by a real claim (hence the real property), and even those few areas of England where the land was not in free ownership (and from the point of view of legal technique, copyhold could not be protected by a real claim), soon also came under legal real property regime. If the effect of a real claim was specifically aimed at restoring landed property, then a personal claim only allowed claiming damages. 1 .

The historical emergence and development of many legal norms is conditioned by relations over land. The earth is indeed a psychological phenomenon, sanctifying the ideals of immobility, permanence, and the absence of risk. The earth absorbs the economic achievements of the evolution of mankind, and, with the exception of the occasional revolutionary situation, this process of stratification of material values ​​in long term cannot have a negative vector. Even with the bitter and truthful remark of the great Lord Keynes (“In the end, we all die”), the risk-averse investor will nevertheless seek to acquire land ownership, since even in death, his choice will work to increase the well-being of his offspring (do you get the generic analogy with the African constitutional property structure?).

As follows from theory and practice economics, the actions of the majority of subjects market relations driven by the desire to avoid risk. Hence the importance of the earth as an object is obvious. legal organization society. In real life, the minimum necessary precondition for the land to retain its attractiveness as an object of safe investment is the existence of stable, albeit rudimentary, legal institutions. No human society can be considered organized unless it is able to guarantee the exclusive rights of an individual or group of individuals to certain economic benefits, derived from the earth. Anyone who had the misfortune to invest his money in buying a home in Mogadishu, Sarajevo or Beirut just before the start of political unrest in those parts, can tragically confirm the validity of what was said above.

The earth, in the long run, is subject to endless and gradual transformations. This can easily be seen on close examination. land relations in cities and no less true of land in the countryside. The rural landscape of modern England, for example, despite all its seeming naturalness, is, nevertheless, the product of a continuous physical impact that has taken place over generations. 2 .

Why everywhere legal regime land is strictly connected with the legal regime of those objects that have a stable connection with the land. Indeed, communist (as well as colonial) regimes, excluding land from the circle of property relations, but at the same time allowing the existence property rights on buildings erected on the ground, they thus made a legal decision that contradicted intuitive logic and was dictated solely by considerations of a symbolic nature. The residual powers of the state over land are structurally necessary for societies with a modern organization and stem from the very need for a relatively stable political organization that would streamline the system of property relations. However, modern legal systems have come to the need to ensure that the exercise of such powers by the state does not come at the expense of such a critical institutional feature as the guarantee of property rights. Guarantees certainly do not mean sacred immunity. However, in order to attract investment and develop the market, security of property rights is essential both in terms of land ownership and its permanent attachments, which can be seen as investments that permanently transform the land. Thus, there are no sufficient grounds for separating the legal regimes of both types of real estate.

The more the land is transformed, the more complex it becomes as an object of law, and this increased complexity is reflected in the legal regime of income that can be obtained from the transformation of the land. Indeed, if in relation to agricultural land the only legal problem is the delimitation of land boundaries, then in the case of transferring a piece of land for the construction of a skyscraper that will house a hotel, shopping malls and offices, the complexity of its legal regime increases incredibly. It may be necessary to regulate parking issues Vehicle, determining the start and end times of the work of state and municipal institutions, equity financing of the security service, heat supply and other services among various owner-users. For this reason, by the way, in the first decades of the XX century. most western legal systems were forced to adopt legislation– whether in the form of special laws or directly in the form of direct amendments to codes– aimed at resolving the increased complexity of relations regarding real estate in connection with the widespread introduction of apartment buildings into the practice of housing construction.

If we want to express this idea using the conceptual apparatus of economic science, then it turns out that with the complication of the conditions for using this type of resource, there is not only an increase in problems associated with the action of an external factor: the picture also changes under the influence of massive investments and large savings. External factor begins to act also when the connection of one or another type of activity with the earth is purely random. It is enough to cite as an example the economic and legal aspect of organizing a performance in the city of a circus tent. There are certain differences between the latter and, say, a stadium. If we have in mind only one single investment of capital, it would be incorrect to consider the circus a structure that constantly modifies the quality of the land. It is easy to see, therefore, that the stadium does indeed belong to the category of immovable property, since only the stratification of land use leads to a change in the economic value of the land.

Although modern technology and indeed may allow the Kremlin to be transferred to Japan, the fact remains that the necessary economic costs would be absolutely exceptional, due to the nature of the Kremlin alone as an object of constant transformation of the land in the center of Moscow. The same exceptional cost factor does not apply to enterprises that are impressive in terms of their spatial and mass characteristics, such as drilling a tunnel under the English Channel or building up a military group in Southwest Asia before the start of Operation Desert Storm. What is important in this case is that it is inappropriate for the legal system to separate the legal regime of the Kremlin and Red Square, where the Kremlin buildings are located. 3 .

The German Civil Code fully reflects the results of these structural observations in the typology adopted by it. So, for example, § 93, 94 and 95 GGU are devoted to the definition of immovable property. According to § 93, for example, parts of a thing that cannot be separated from it without violating the integrity of the thing itself (essential components) cannot be the object of any rights other than those that apply to the thing itself. According to § 94, the essential constituents of the earth are things that have a long-term and strong connection with it, in particular, buildings or fruits of the earth, insofar as they are connected with the earth (in our example– Kremlin or stadium). Finally, according to § 95, those things that are connected with the earth only for a while (in our case– circus tent) cannot be considered as integral parts of the land 4 .

Italian law is an example of such a typology, which, being slightly better than German law, creates serious problems of interpretation, since it does not reflect the economic realities of the transactions that it is intended to regulate. The Italian Civil Code attempted to do away with the abstract notion of "essential parts" by offering instead a simple list of things falling under the category of immovable property. Thus, Italian law breaks with tradition and classifies both the Kremlin and the circus tent in the same category! The mentioned list continues in the second part of the article and also includes mills, baths, all objects that are afloat, but permanently connected to the shore. According to Italian law, the latter category of objects, while not immovable by nature, is immovable by purpose and therefore must be subject to the legal regime of immovable property. 5 .

The above article of the Italian code is interesting in that it demonstrates how the abstract thinking of civil lawyers leads to the rise of abstractions even in those areas where there have been direct attempts to get rid of some of them. In practice, however, lawyers distinguish (and this question is often put on first-year law school exams) property that is “immovable by nature,” such as land or buildings, and property that is “immovable by virtue of its purpose,” such as moored floating objects. or a circus tent). Of course, classifying floating objects and a circus tent as real estate, despite the fact that the cost of their separation from the land is very insignificant, is meaningless from an economic point of view and raises the question of the purpose of such a typological division. In reality, this only serves to be able to “fail” the first-year student at the exam due to the loss of centralism in the delimitation of movable and immovable property that is justified from the point of view of common sense and economics.

Chapter 2. The right to real estate in Russia

current Russian legislation allows the possibility of finding land plots on the right of ownership of citizens who received them under individual housing construction, for gardening or maintaining a personal subsidiary and summer cottage, for maintaining a peasant (farm) economy. In addition, citizens who have received ownership of buildings, structures or other real estate in rural settlements and on agricultural lands (for example, those who acquired a house in a rural area by purchase or inheritance) have the right to acquire ownership of the land plots on which such objects are located. legal acts on privatization allow the acquisition of land plots under privatized enterprises, as well as under other real estate objects owned by citizens, into the ownership of citizens. It is also allowed to acquire ownership of land plots intended for development in urban and rural settlements. Citizens as private owners of land have the right to exercise their powers freely, if this does not damage the environment and does not violate the rights and legitimate interests of other persons (clause 3 of article 209 of the Civil Code), for example, neighboring land users 6 .

Joint-stock and other economic companies and partnerships as participants in the process of privatization of state and municipal property (buyers) may be the owners of land plots on which privatized objects are located. Private owners of land may also be agricultural production cooperatives created in the form of agricultural or fishing artels (collective farms) and received in their unit trust land plots of its members, and non-profit organizations, including public associations and trade unions. Finally, any legal entities that have become owners of buildings, structures or other real estate in rural settlements and on agricultural land have the right to acquire ownership of land plots on which these real estate objects are located, as well as become owners of land plots intended for development in urban and rural settlements 7 .

Due to the special social significance, the turnover of land plots is legally limited (clause 3 of article 129 of the Civil Code) in the public interest, as well as the content of the rights of any land user or nature user, including owners. After all, the number and composition of such objects are objectively limited due to obvious natural reasons, and their use always, therefore, in one way or another affects the interests of society as a whole. Thus, the owner of a land plot must take into account environmental (environmental) requirements and prohibitions, the strictly intended purpose of these objects (for residential or industrial (industrial) development, for recreation, for agricultural production, etc.), the requirements of the law for their rational use . Failure to comply with these requirements should entail adverse consequences for the owner, up to the withdrawal of the land plot. 8 .

The question of which lands and to what extent can be objects of private property is decided by land, not civil legislation. It also determines the maximum amount of land provided to a private owner. The fact that the land legislation is assigned by the Constitution to the joint jurisdiction of the Russian Federation and its subjects (clause "k" part 1 of article 72) makes it possible to take into account all the necessary regional features. The exclusive federal competence in the field of civil legislation (p. "o" Art. 71), for its part, ensures the unity of the market and the regulation of the property turnover of land plots. At the same time, any transactions with them as with real estate objects are subject to state registration (Article 131 of the Civil Code), which excludes uncontrolled circulation of land 9 .

In accordance with paragraph 2 of article 214 of the Civil Code, land and other Natural resources not owned by citizens, legal entities or municipalities are state property. Thus, these natural objects cannot become ownerless, because a legal presumption (assumption) of their being in state property. These types of property can be the object of private and even municipal property only to the extent that this is expressly permitted by the state. The law specifically stipulates that publicly owned land and other natural resources may become the object of collection by creditors of the relevant public legal entity only in cases expressly provided for by a special law. In his absence, such objects are, in fact, reserved from the collection of creditors, which is intended to preserve public ownership of the land. 10 .

In general, the law refers to real estate land plots, subsoil plots and all things that are firmly connected with land, i.e. inseparable from it without disproportionate damage to their economic purpose ( residential buildings and other buildings and structures, perennial plantations and forests, isolated water bodies, etc.). The law may include other property similar in essence to immovable things. Thus, housing legislation refers to real estate objects apartments and other residential premises in residential buildings and other buildings suitable for permanent and temporary residence.

Since such objects are inseparable from their location, and transactions with them can be made elsewhere, the acquirers and other participants in the turnover need to know exactly the legal status of a particular object (for example, is this house or land plot in pledge, does anyone have - or the right to use it, etc.), as this affects the price and other terms of transactions. You can find out all this by the results of special state registration of rights to real estate and transactions with it, which is provided for by law (Article 131 of the Civil Code) 11 .

Such registration is legal act recognition and confirmation by the state (public authority) of the emergence, restriction (encumbrance), transfer or termination of rights to real estate and serves as the only evidence of the existence of registered rights. These rights can only be challenged in judicial order. Property rights are subject to state registration, as well as lease rights and trust management and transactions with land plots, subsoil plots or isolated water bodies, forests and perennial plantings, buildings, structures, residential premises, enterprises and condominiums as property complexes. Registration is carried out by institutions of justice for registration of rights to real estate in the Unified State Register and is certified by the issuance of a certificate of state registration of rights to real estate. The information contained in the Unified State Register of Rights to Real Estate is open and can be provided to any person for any real estate object. Denial of state registration may be appealed in court. Thus, to immovables, general rule, include things that are firmly connected with the land, not only physically, but also legally, since their use for its intended purpose is impossible in the absence of any rights to the corresponding land plot.

State registration of rights to real estate of civil law significance should not be confused with cadastral and other technical accounting (inventory) of certain types of real estate of fiscal or other public law significance. Such registration or accounting is carried out along with the state registration of rights to real estate (clause 2 of article 131 of the Civil Code), however, they do not have a law-generating value and do not affect the validity of transactions 12 .

State registration of immovables and transactions with them is the main feature of their legal regime. This feature is caused primarily by legal reasons, and not only by the natural properties of these objects of turnover. In this regard, the law extends the real estate regime to certain objects that are “movable” in the natural-physical sense, for example, to aircraft and sea vessels and space objects (they are subject to state registration in special registers in accordance with special rules).

The current civil law in most cases does not require a notarial form of real estate transactions along with their state registration, because this would unnecessarily complicate the procedure for their completion and would lead to unjustified additional costs for participants. At the same time, in many situations, it also provides for other features of the legal regime of real estate in comparison with movable things (for example, when foreclosing on mortgaged property, when determining the scope of the powers of unitary enterprises to the property of a public owner assigned to them, etc.).

Things that do not belong to real estate (and therefore do not require registration of their legal status) are things, although they have significant value, but are not connected with land and are not recognized as real estate by law. For example, when selling a “house for demolition”, the object of the transaction is not the house, but the totality of building materials that make it up and which in itself has no connection with the land. All this– movable things. As the law indicates, any things that are not classified by it as real estate are recognized as movable (paragraph 2 of article 130 of the Civil Code).

Some types of real estate, for example, residential houses and apartments, have a special legal regime determined by their strictly intended purpose. This approach of the law is due to the continuing lack of housing and its special social significance. Residential premises are intended exclusively for the residence of citizens, and the exercise of the owner's rights to own, use and dispose of such real estate objects must be carried out in accordance with the intended purpose of these things (Article 288 of the Civil Code). Thus, it is not allowed to rent residential premises for various offices, offices, warehouses, place industrial, handicraft and other industries in them, as well as their sale or other alienation for the specified purposes without first transferring these premises to the category of non-residential, i.e. without changing their intended purpose (which, in turn, requires their appropriate re-registration with the authorities that record this type of real estate). Citizen– owner of a residential building privatized apartment or other residential premises have the right to use them for personal residence and residence of members of his family, as well as to alienate these things and lease them for temporary use to other persons only for similar purposes 13 .

Under residential premises, housing legislation understands not only residential (including multi-apartment) houses and cottages (cottages) adapted for permanent residence, but also separate apartments and other residential premises (for example, separate isolated rooms in apartments) registered as such in government bodies accounting for this kind of real estate (usually– territorial bureaus technical inventory – BTI), including service and departmental, as well as "specialized houses" and premises serving similar purposes– dormitories, hotels-shelters, houses of the mobile fund (intended for the resettlement of citizens with overhaul houses), special homes for lonely elderly citizens, boarding schools for the disabled, veterans, etc.

The use of residential premises for other purposes, or the systematic violation by the owner of such premises of the rights and interests of neighbors, or the mismanagement of the owner with his housing, may become the basis for the court to decide on the sale of such residential premises at public auction, at the request of the local government, i.e. on the expropriation of property owned by the owner. The owner of housing must be warned in advance by the local government about the need to eliminate the violations committed by him (including the establishment of a proportionate, reasonable period for these purposes, including the necessary repairs of the destroyed premises). Only after that he is exposed to the risk of judicial seizure and forced sale of the property belonging to him (Article 293 of the Civil Code) 14 .

In addition, the law prohibits the owner of an apartment or other housing from alienating his share in the right to the common property of a residential building and performing other actions that entail the transfer of this share, separately from the ownership of housing (clause 2 of article 290 of the Civil Code). In essence, this means that the corresponding share in the ownership of the specified common property always follows the fate of the ownership of housing, being inextricably linked with it.

The same applies to residential buildings and other residential premises owned by legal entities on the right of ownership, since in this case the strictly designated purpose of these objects and the restrictions on their use due to it remain (Article 288 of the Civil Code) 15 .

The law may establish state registration of transactions with certain types of movable things (clause 2 of article 164 of the Civil Code), for example, with some things limited in circulation. In this case, it has a law-generating meaning and affects the validity of the relevant transactions (although it does not turn movable things into immovable things, because the latter must be recognized as such by law). It should also not be confused with the technical registration of certain movable things, such as motor vehicles or small arms, with the relevant internal affairs bodies. Such registration can only affect the exercise of civil rights (for example, the prohibition of the operation of a car by an owner who is not registered as such in the authorities State Inspectorate on road safety), but not on their occurrence, change or termination (in particular, on the ownership of a car) 16 .

A special kind of real estate are complexes of interconnected immovable and movable things used for a general purpose as a whole. These include businesses and condominiums.

The term "enterprise" is used in our legislation to refer to certain types of legal entities– subjects civil law. However, in normal property turnover, "enterprises" are objects, not subjects of law. Enterprise as an object civil circulation is not just a thing or a set of things, but a whole property complex, which includes, along with real estate (land plots, buildings, structures) and movables (equipment, inventory, raw materials, finished products) obligation rights of claim and use and debts (obligations), as well as some exclusive rights (for a company name, trademark, etc.) (Article 132 of the Civil Code). In developed legal systems, enterprises also include "clientella" ( goodwill ), i.e. stable economic ties with consumers of their products or services, which are very important in a competitive market economy. Therefore, a going concern (an on-the-go business) is often worth more than the simple cumulative "book" value of its cash or net assets. 17 .

Of course, the subject of the relevant rights and obligations is a legal entity (or other owner), and not property. Therefore, the law means under the enterprise as an object, first of all, the property of unitary enterprises. However, both a part of an enterprise (for example, the property of a workshop) and a production unit that did not have civil legal personality (for example, a shop, cafe, hotel, atelier and other “enterprise” of the service sector) can become an object of civil circulation. In cases of sale, lease, pledge or other transactions with such property complexes, their owner (which, in particular, may be a business company or partnership or an individual entrepreneur), in accordance with the terms of the contract, transfers to the acquirer or other counterparty not only the immovable and movable things, but also their rights, obligations and even “clientella” related to them (Articles 559 and 656 of the Civil Code) 18 .

Another type of property complexes under Russian law is a condominium. The housing legislation recognizes as a condominium a real estate complex that includes a land plot and a residential building located on it, in which individual residential premises are privately (or publicly) owned by specific owners, and the remaining parts– in their common share property. This situation usually develops during the privatization of housing in apartment buildings when private owners of individual apartments must jointly operate the stairwells and stairs, elevators, roofs and basements, electrical, plumbing and other equipment that are in their common property, serving the residential building as a whole, as well as adjoining territory(land area). The peculiarity of the legal regime of a condominium is the impossibility for the owner of a dwelling to alienate his share in common property condominium separately from the ownership of the residential premises located in it, as well as vice versa.

Chapter 3. Ways of acquiring real estate

A person who has carried out unauthorized construction of a real estate object, as a general rule, does not acquire ownership of it, and this building itself does not become real estate, because it is not subject to state registration due to violations committed during its creation. Here we can only talk about a set of building materials that their owner has the right to take away by carrying out the demolition of such a building at his own expense (clause 2 of article 222 of the Civil Code). Unauthorized construction of a property is considered in the presence of any of the following violations: violation of the procedure for land allocation or its intended purpose; lack of necessary building permits (at least one of them); material breach building codes and rules (clause 1 of article 222 of the Civil Code) 19 .

The rules on the consequences of unauthorized construction were previously widely used when developers violated not always justified restrictions on the size and nature of buildings being built, which were enshrined in previous legislation. However, the disappearance of such restrictions did not at all lead to the possibility of erecting any objects at the discretion of their customers or developers. There is an obvious need to preserve the restrictions provided for by construction, environmental protection, land and other branches of administrative legislation established in the public interest.

Only as an exception is it possible to recognize the right of ownership of an unauthorized construction for the developer or for the owner or other title owner of the land plot on which such construction was carried out. The developer may become the owner of an unauthorized building as a real estate object, if this does not violate the legitimate interests of other persons (for example, neighboring land users) and does not create a threat to the life and health of citizens (which is confirmed by the availability of the necessary permits from the fire department, sanitary supervision, architectural or building control etc.), and the person who carried out such a construction duly formalized the right to the corresponding land plot (clause 3 of article 222 of the Civil Code). In the presence of the above conditions, the court may recognize the ownership of this building for the owner or other legal owner of the land on which it was carried out. In the latter case, the new owner is obliged to compensate the developer for the necessary construction costs. 20 .

The law specifically reveals the concept of "transfer" (Article 224 of the Civil Code). It recognizes not only the actual delivery of the thing to the acquirer or its delivery to the carrier, or to a communication organization for sending to the acquirer, but also the actual receipt of property in the possession of the acquirer or the person indicated by him (for example, delivery to his warehouse), as well as the transfer to him of a document of title to things . The actual possession of the thing by the acquirer by the time the contract for its alienation is concluded (for example, when buying out leased property) is equated to its transfer. In other words, in such a situation, the conclusion of an agreement on the alienation of a thing is recognized by law and its simultaneous actual transfer.

A special way of transferring property from public to private ownership is privatization, which is associated with the alienation of a large number of objects that were in public ownership due to the peculiarities of the organization of the former, state-owned economy. It is a temporary, transitional measure for the formation of a material base for the development of a market economy and the corresponding normal, and not curtailed, property turnover. This, in particular, explains the absence of special rules on privatization in Civil Code and in other general acts of civil legislation.

It should be borne in mind that transactions concluded during privatization for the acquisition of privatized property into private ownership are civil law contracts (most often– sale and purchase agreements, and the acquisition of "uncertificated shares"– agreement on the assignment of rights of claim) and are subject to general norms civil law. The decision to privatize a specific object (real estate) should be considered as one of the forms of exercising by the public owner of his authority to dispose of his property. The procedure for exercising this authority is established by special regulations about privatization.

In accordance with Article 217 of the Civil Code, the procedure for privatization should be established by special laws, and general rules on the acquisition and termination of property rights are applied here only to the extent that the relevant relations are not regulated by these laws. The order of privatization determines only the procedure (methods) of privatization, but not its objects. The latter are established by the relevant public owners, guided by their interests and regulations. 21 .

The specificity of privatization is manifested in the peculiarities of the subject composition of the legal relations that are developing here, their objects and content. The seller (alienator) of the privatized property can only be the public owner represented by the committee for the management of the relevant (federal, other state, municipal) property, which decides on the privatization of a particular object, and the fund of the relevant property, which acts as a seller in civil legal transaction for the alienation (sale) of specific property. Only citizens (including individual entrepreneurs, including farmers, or peasants); joint-stock and other business companies, in the authorized capital of which the share of participation of public legal entities (as well as public organizations and funds) does not exceed 25% (production cooperatives were expressly excluded from their number); foreign investors(which includes both individuals and legal entities specified in Article 37 of the Law on Foreign Investments).

The objects of privatization can be, firstly, enterprises and other property complexes; secondly, buildings, structures, non-residential premises, unfinished construction objects; thirdly, land plots; fourthly, living quarters; fifthly, shares of open joint-stock companies. Thus, we are talking about the alienation of publicly owned immovable property or said shares. Movable property is transferred from public to private ownership as a result of ordinary purchase and sale transactions (for example, the supply of products of state and municipal unitary enterprises) or other civil law transactions for alienation, and not through privatization.

Privatization is carried out exclusively in the ways provided for in the law. These include:

when privatizing enterprises and other property complexes– 1) transformation of large state and municipal enterprises into joint-stock companies open type with the subsequent sale of their shares, 2) sale by tender or at an auction of small property complexes or individual real estate objects, 3) buyout of leased property; 4) contribution of publicly owned property as a contribution to authorized capitals business companies;

when privatizing residential premises– their free transfer to the ownership of citizens living in them;

when privatizing land– paid or gratuitous transfer of ownership of citizens or legal entities of land plots fixed size;

when privatizing shares of open joint-stock companies– sale at specialized auctions or to employees of privatized enterprises, as well as the sale of special securities certifying the right to acquire these shares (such as "option certificates") 22 .

Thus, privatization can be defined as the alienation (transfer) of real estate, as well as shares from state or municipal ownership to the private ownership of citizens or certain legal entities in the manner prescribed by special legislation.

A variation of privatization is the "commercialization" of state and municipal enterprises. It is usually understood as the separation from the composition of such enterprises or their associations of the property of their structural divisions as a basis for the formation of new legal entities– independent economic companies, including those created by employees of these divisions. Commercialization, i.e. creation commercial organizations – economic companies based on the property of trades, trusts, combines and other considered " state enterprises» management structures, was most widely used in the field of trade and consumer services even before the adoption of special legislation on privatization. It has become the main form of "small privatization", i.e. privatization of small and some medium enterprises.

One can speak of absolute (property) protection not only of property rights and other real rights, but also of any legal (titular) possession. Property-law protection of title owners, including the subjects of obligations, and not just real rights to other people's property, constitutes the concept of possessory protection. The institution of possessory protection, necessary for a developed civil circulation, in certain cases also protects bona fide (titleless, i.e. illegal) possession. Moreover, actual possession in good faith may become the basis for acquiring the right of ownership by prescription of ownership of someone else's (ownerless) property, including real estate. At the same time, before acquiring the right of ownership to such property, the actual owner of the thing has the right to protect his possession by filing property-law claims against any third parties encroaching on his possession (except for the title owners who have the right to the thing by virtue of law or contract).

conclusion

So, we have considered the structure of real estate. In general, the legal registration of land relations has become one of the most acute problems of modern economic life in Russia. Land and law regulations establish restrictions related to limit sizes land plots that are in private ownership, ensuring their strictly designated purpose and the most rational use, the definition of the category of land and their accounting, and also provide for the consequences of their violation.

Ownership protection is thus aimed at maintaining the stability of property turnover and eliminating possible uncertainty in the legal regime of movable and immovable property. Its purpose is to protect the right of ownership as an absolute right in its legal nature (which is part of both property rights and rights of obligations). Therefore, it always has individually determined things as its object and has an absolute character. Because of this, it cannot be used to protect obligations (relative) rights, especially claims (for example, to acquire the right to Bank deposit or to "uncertificated securities”), as well as rights of use, the exercise of which does not require the possession of specific things. Therefore, possessory protection, even with regard to the rights of possession acquired under a contract, is nevertheless an institution of property law, and not law of obligations, and its constituent claims are among those of property law.

list of used literature:

1. Civil law. Part 1. / Ed. A.G. Kolpina. M.: Yurist, 2015. 472 p.
   1. Civil law. Part 1. / Ed. A.P. Sergeeva. M.: Prospekt, 2015. 616 p.
      1. Civil law. / Ed. S.P. Grishaeva. M.: Yurist, 2015. 484 p.
         1. Iconitskaya I.A. Ownership of land in the Russian Federation. M.: Nauka, 2014. 226 p.
         2. Kazantsev V., Korshunov N. Revival of easement law in Russia. // Russian justice. 2015. No. 5. P.40-47.
         3. Kopylov A.V. Real rights to land M.: Statute, 2015. 256 p.
         4. Mattei W., Sukhanov E.A. Basic provisions of the right of ownership. M.: Yurist, 2014. 384 p.
         5. Sklovsky K.I. Property in civil law. M.: Delo, 2014. 512 p.
         6. Sukhanov E.A. Ownership and other real rights. M.: Delo, 2015. 348 p.
         7. Shchennikova L.V. Real rights in the civil law of Russia. M.: BEK, 2014. 200 p.

1 Sukhanov E.A. Ownership and other real rights. M., 2015. P.126.

2 Kazantsev V., Korshunov N. Revival of easement law in Russia. // Russian justice. 2015. No.5. P.43.

4 Sukhanov E.A. Decree op. P.152.

5 Mattei W., Sukhanov E.A. Basic provisions of the right of ownership. M., 2014. P.130.

7 Civil law. Part 1. / Ed. A.G. Kolpina. M., 2015. P.231.

9 Mattei W., Sukhanov E.A. Decree op. P.338.

10 Civil rights. / Ed. S.P. Grishaeva. M., 2015. P.60.

11 Sklovsky K.I. Property in civil law. M., 2014. P.162.

12 Civil law. Part 1. / Ed. A.P. Sergeeva. M., 2015. P.258.

13 Kopylov A.V. Real rights to land. M., 2015. P.71.

15 Ibid.

16 Mattei W., Sukhanov E.A. Decree op. P.343.

18 Mattei W., Sukhanov E.A. Decree op. P.344.

19 Shchennikova L.V. Real rights in the civil law of Russia. M., 2014. P.22.

20 Shchennikov L.V. Decree op. P.24.

21 Ikonnitskaya I.A. Ownership of land in the Russian Federation. M., 2014. P.76.

22 Kopylov A.V. Decree op. P.84.

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5 buyer risks when buying and selling real estate

It is the buyer who is the most vulnerable party in the conclusion and execution, since, in the performance of his obligation to pay for the goods, he transfers a significant amount to the seller Money, and it is much more difficult to count on a refund, if not everything went smoothly, than on a return of real estate.

Consider main risks buyer in real estate purchase and sale transactions).

1) The risk of recognizing the transaction as not concluded

If the contract of sale of real estate is recognized as not concluded, the return of the money paid by the buyer will be made using the rules on unjust enrichment. As we said above, the actual recovery of money by the buyer under an unconcluded contract can be very difficult. So, as follows from Art. 432 of the Civil Code of the Russian Federation, the contract will be considered concluded if between the seller and the buyer, in the form required in the relevant cases, an agreement is reached on all essential terms of the contract.

With regard to a contract for the sale of real estate, the Civil Code of the Russian Federation refers to the essential conditions: a) subject matter (Article 554 of the Civil Code of the Russian Federation), including: data that makes it possible to definitely establish the real estate to be transferred to the buyer, including data that determines the location of the property on the relevant land plot or as part of other real estate; b) price (Article 555 of the Civil Code of the Russian Federation). When describing real estate, you should specify its identification data in as much detail as possible on the basis of technical accounting documents, title-establishing and title-confirming documents, since there is no direct indication of the law on what data regarding the acquired object must necessarily be contained in the contract.

Will a contract be considered concluded if, for example, there is no indication of the number of storeys of the object, provided that all other data are indicated that allow the object to be identified? And the contract, which does not indicate the letter of the building? Arbitrage practice on such disputes is contradictory, and therefore we recommend that you describe the property in as much detail as possible. In relation to the indication of the price of real estate, a high risk for the buyer is the indication of the price of the object, which does not correspond to the real one. The reason for underpricing is often the desire to "optimize".

At the same time, it must be understood that in cases where the contract is recognized as not concluded, invalid, the buyer will face the fact that to prove the fact of payment of money in larger size than specified in the contract, and it will be very difficult to claim them.

2) Risk of recognition of the transaction as invalid

There is a whole range of reasons and situations possible. Recall that any transaction that is contrary to the requirements of the law is invalid. First of all, in order to avoid the risk of declaring the transaction invalid, you should carefully check the authority of the seller / representative of the seller to complete the transaction. If the seller is individual, obtain a notarized consent of the seller's spouse for the sale of real estate, or issue a statement that the property was purchased by the seller not married. Situations are not uncommon when the marriage has been dissolved for a long time, the division of property has not been made.

When acquiring such real estate, despite the fact that after the dissolution of the marriage long term, we strongly recommend that you request the consent of your ex-spouse, or refuse to purchase such an object at all. or a power of attorney), a certificate of the book value of the object, balance sheet as of the last reporting date.

We take into account that a major transaction requires prior approval by the authorized body of the seller. In addition, the articles of association may provide for cases where transactions of a certain type, or exceeding a certain amount, must also be pre-approved by the authorized bodies of the company.

3) The risk of claiming property

Not only the real estate sale transaction itself, but also any of the transactions on the basis of which the right of each previous seller arose, as well as an act of a state or municipal body, can be recognized as invalid. In a sense, the buyer is protected by the statute of limitations. However, we will not consider them a panacea for all ills. The limitation period starts from the date when the person knew or should have known about the violation of his rights.

Often this does not allow the use as a means of protection limitation period. The law does not allow claiming property from a bona fide purchaser (i.e., such a buyer who did not know and could not know that the seller of real estate had no right to alienate property), if the property was acquired by the buyer for a fee, except in cases where the property was removed from the owner's possession or a person to whom the property was transferred by the owner into possession, against their will.

As an illustration of the situation of claiming real estate from a bona fide purchaser, we will give the following example. After the death of the owner, the property was sold under a fake power of attorney by one of the heirs. Subsequently, the object was repeatedly resold, as a result of which another person became the owner, who did not know and could not know about the nullity of the transaction confirming the ownership of one of the previous sellers. Another heir found out about the sale of the apartment a few years later and sued the current owner to reclaim the object from someone else's illegal possession. The claim was satisfied, despite the fact that the current owner is a bona fide purchaser.

4) The risk of the seller failing to fulfill his obligation to transfer property

The transfer of an object is carried out according to a transfer act or other transfer document (such a document is often the contract itself, which includes the condition that it simultaneously performs the functions deed of transfer). In case of non-fulfillment of the obligation to transfer, the buyer has the right to demand that this thing be taken away from the seller and transferred to him for stipulated by the agreement conditions. However, according to the provisions of the Civil Code, this right disappears if the thing has already been transferred to a third party with the right of ownership, economic management or operational management. If the thing has not yet been transferred, the creditor in whose favor the obligation arose earlier, and if this cannot be established, the one who filed the claim earlier, shall have priority. Instead of a demand to transfer the property, the buyer has the right to demand damages.

5) The risk of acquiring property encumbered with the rights of third parties

The transfer of ownership of real estate does not entail the termination of lease agreements concluded in relation to the object being sold. Accordingly, the buyer may find himself in a situation where the purchased property is encumbered existing agreements lease, under the terms of which the lessor is deprived of the possibility of unilateral extrajudicial termination of the contract, and the rate rent significantly below market value.

In order to minimize these risks, you should request an extract from the USRR for the purchased object (and for residential real estate - also an extract from the house book), and include the seller's guarantees about the absence of encumbrances in relation to the object in the contract. This also includes the risk of possible arrest of the object by the court, the bailiff on the claims of third parties to the seller until the state registration of the transfer of ownership of the object from the seller to the buyer.

The ways to minimize the risk are the same - requesting an extract from the Unified State Register of Real Estate Registers by a date as close as possible to the date of the transaction, as well as including the relevant seller's guarantees in the contract.

p.s. We focused on the main, most common and “dangerous” risks for the buyer. Alas, this list is open - a real estate buyer faces a considerable number of other dangers. Here is some of them:

a) the risk of acquiring real estate of inadequate quality, including those with hidden flaws;

b) the risk of the seller evading the actions necessary for the state registration of the transfer of ownership to the buyer;

c) the risk of suspension, denial of state registration of the transfer of ownership for various reasons (often, to eliminate the comments submitted by the registration authority, the participation of the seller or authorized representative, and the absence of such a person in the “reach zone”, his lack of contact or unwillingness to provide assistance can significantly complicate the life of a buyer interested in registering his right as soon as possible);

d) the risk of the purchased real estate falling into the estate in the event of the death of the seller before the state registration of the transfer of ownership;

e) risks associated with the need to “legitimize” redevelopments not formalized by the previous owner (owners) (legal, financial, temporary, risks of bringing to administrative and other types of liability); b) the use of transactions under the condition, for example, when the transfer of funds is carried out only subject to the submission of documents on the approval of previously made and discovered redevelopment;

c) inclusion of conditions related to warranties and representations.

Galina Korotkevich

Partner, legal analyst. I write articles, look for interesting information and suggest ways to use it in practice. I believe that thanks to high-quality legal analytics, clients come to a law firm, and not vice versa. Do you agree? Then

How to make a purchase of real estate?Need to do it according to With requirement of the law. Therefore, before you buy - get acquainted with how to buy real estate correctly, because it is not enough to acquire the right to own property in without fail it must be registered with the Registry. Article updated 01/14/2018
Let's figure it out in detail.

Real estate objects and rights to them are controlled by the state. Such rules! And these rules must be accepted unconditionally.

In order for a real estate object to be sold, it is first necessary to establish the fact of the existence of this object, that is, to go through the cadastral registration procedure with the assignment of a cadastral number.

It is impossible to formalize the right of ownership to real estate objects that have not passed the cadastral registration.

An object of real estate for which rights are not registered cannot be sold or bought.

Registration of real estate objects and rights to them is carried out by Rosreestr.
The Unified State Register of Real Estate (EGRN) reflects all legal objects and rights to them.

How to properly purchase real estate

If you are convinced that the property is registered with the cadastre (it was assigned a cadastral number) and the rights to it were previously registered and there are no encumbrances, you can draw up a sale and purchase transaction.

You need to issue the right establishing and the right confirming documents for the property.

• You prepare the right establishing documents yourself, these documents describe your purchase and sale transaction.
• The right supporting documents are issued to you by Rosreestr.

Since you are buying an apartment (another property), your rights to it will be established by the Sale and Purchase Agreement and the Transfer and Acceptance Certificate.

The moment of the onset of ownership is the signing of the Sale and Purchase Agreement and the Acceptance Certificate - transmission all participants in the transaction, it is then that these documents will receive the highest legal force. But in some transactions it is mandatory to certify the contract of sale with a notary:

• if the owner of the property is a minor or incapacitated
• if the property being sold is registered in shared ownership
  Such contracts are drawn up by a notary.
  Read the article:

From March 1, 2013, the Sales and Purchase Agreement is not registered by Rosreestr, but transition of law from the Seller to the Buyer is subject to registration.

• The moment of confirmation of ownership of the apartment is to make an entry about this in the Unified State Register of Real Estate - USRN.
  And the only evidence of the registered right from 01/02/2017 is the presence of a record of this in the USRN.

How to make a purchase of real estate. Legality of the transaction

• The legality of the sale and purchase lies entirely with the participants in the transaction. Rosreestr does not bear responsibility for the legality of the transaction.
• If the transaction is certified by a notary, the notary is responsible for the legality of the transaction.

How to make a purchase of real estate. Stage 1

It takes time to prepare a package of documents for a transaction:

• check out of the apartment - up to 2-3 weeks
• order an extract from the USRN on the absence of arrests and encumbrances on the property - 5 working days
• prepare a notarized consent of the spouse for the sale, if the property was purchased during marriage
• prepare a permit for the sale from the guardianship and guardianship authorities, if the owner is a minor or incapacitated - up to 30 days

Therefore, in order to fasten contractual relationship between the Seller and the Buyer - is drawn up

How to make a deposit when buying a property

It is possible to ensure the fulfillment of the terms of the contract by transferring a deposit, filling it out and

• After the preparation of a complete package of documents, a Purchase and Sale Agreement and an Acceptance and Transfer Certificate are drawn up and signed.
• Money for the apartment is transferred in the manner prescribed in the Sale and Purchase Agreement. Read about the methods of calculation in the article:

2.1 Systematization of the grounds and methods for acquiring property rights ..

For the emergence of property rights, as well as other legal relations, it is necessary to have certain legal facts, which in Russian civil law are called grounds for acquiring property rights. Traditionally, they are usually divided into primary and derivative. However, when determining the basis for classifying relevant legal facts, different sources favor different criteria.

Thus, a number of scientists * believe that the presence of will previous owner. In their opinion, the initial ones include such grounds under which the right of ownership lawfully arises from a person regardless of the will of the previous owner, and those under which such a will is present are recognized as derivatives.

Others believe that the correct criterion is the presence succession*, and the original ones include legal facts that are not based on succession, and derivatives, respectively, those that are based on succession. They point out that the criterion will does not stand up to practical scrutiny in all cases. For example, an heir who is entitled to an obligatory share (the so-called. necessary heir), receives this share against the will of the previous owner - the testator - although such a method of acquisition as inheritance, without a doubt, refers to derivative methods of acquiring property rights.

The point of view of the latter is closer to me, since the doctrinal interpretation of the law, for which civil law actually exists, should be based on internally consistent premises that do not lead to paradoxical conclusions. At the same time, from my point of view, the best way to solve this problem is to follow the internal logic of such a law, and in this case it is known that the legislator in all cases has certain legal consequences with the presence or absence of succession, which cannot be said about the will. That is, it is rather the criterion succession, therefore, he was chosen by me to study the grounds for acquiring property rights.

This is all the more relevant because various - and often multidirectional - processes are actively taking place at the moment. Privatization, in which state and municipal property becomes the property of citizens and organizations, objects of "social and cultural life" and other property complexes, on the contrary, become state and municipal property. All this property is burdened with numerous obligations of the most diverse nature, and is often provided with various powers, often very attractive to the owner. And the adoption of legally significant acts, as a rule, is closely related to the presence or absence of succession.

Therefore, the following will be considered the grounds for acquiring property rights, classified into primary and derivatives precisely according to the criterion succession. Based on this criterion, the initial grounds should include:

acquisition of ownership of a newly made thing (clause 1 of article 218 of the Civil Code)

processing (Article 220 of the Civil Code)

conversion to the ownership of public things (Article 221 of the Civil Code)

acquisition of ownership of ownerless property (clause 3 of article 218; articles 225, 226; ownerless due to the application of clause 2 of article 235, article 236 of the Civil Code)

appropriation of the treasure (Article 233 of the Civil Code)

due to the onset of acquisitive prescription (Article 234 of the Civil Code)

for unauthorized construction due to the application of clause 3 of article 222 of the Civil Code

stray animals (Article 230-232 of the Civil Code)

there are also reasons to consider the acquisition from an unauthorized owner as the original way of acquiring ownership.

Derivative acquisition methods include:

acquisition of ownership by contract

acquisition of property by inheritance

nationalization (Art. 239, Art. 306 of the Civil Code)

privatization (Article 217, Part 2, Clause 2, Article 235 of the Civil Code)

acquisition of ownership of the property of a legal entity as a result of its reorganization or liquidation (clause 7 of article 63, paragraph 3 of clause 2 of article 218 of the Civil Code)

foreclosure on the property of the owner for his obligations (subparagraph 1 of clause 2 of article 235, article 238 of the Civil Code)

conversion of property in favor of the state in the interests of society (requisition) or, as a confiscation, that is, in the form of a sanction for a committed offense (Article 242, 243 of the Civil Code)

redemption of real estate in connection with the seizure of the land on which it is located (Article 239 of the Civil Code)

redemption of mismanaged property (Article 240,293 of the Civil Code)

redemption of pets, with improper treatment of them (Article 241 of the Civil Code)

acquisition due to the termination of the right of ownership of the property of a person to whom it cannot belong (subparagraph 2 of clause 2 of article 235, article 238 of the Civil Code).

It should be noted that some methods of acquisition may, depending on specific circumstances, act as primary or as derivatives, an example of which is the acquisition of ownership of products, fruits, income received from the use of certain property.

The study of each of the grounds for acquiring property rights as a whole can be the subject of a separate full-fledged scientific work. Next, various grounds for acquiring ownership of real estate will be considered.

The legislator refers to real estate (real estate, real estate) land plots, subsoil plots, isolated water bodies and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including forests, perennial plantations, buildings, structures (Article 131 of the Civil Code), as well as aircraft and sea vessels subject to state registration, long-distance navigation vessels, space objects. Other property may also be classified as real estate by law. An important feature of the ownership of real estate is the mandatory state registration of all legal facts related to the emergence, transfer and termination of such a right (clause 2 of article 131 of the Civil Code), and in some cases, statutory in addition, and special registration. The main legal act regulating registration procedures is the Law of the Russian Federation “On State Registration of Real Estate Transactions”.

2.2 Initial reasons for the purchasereal estate.

Ownership for newly created real estate property is acquired by a person who has manufactured or created it for himself in compliance with the law and other legal acts (clause 1 of article 218 of the Civil Code). At the same time, the legislator, especially for real estate, strictly connects the moment of acquiring ownership of such property with the moment of its state registration (Article 219 of the Civil Code).

Separately, the legislator considers the situation of acquiring property rights for self-construction, that is, in violation of the principle of compliance with the law and other legal acts. Article 222 of the Civil Code defines an unauthorized structure as a residential building, other structure, building or other immovable property created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with significant Violation of urban planning norms and rules. At the same time, the unauthorized construction itself does not allow the owner to acquire the right of ownership of the unauthorized real estate and dispose of such property, which the law additionally points out. That is, cases are possible in which the right of ownership initially does not arise on anyone's side. Therefore, an unauthorized building is subject to demolition by the person who carried it out or at his expense, except for the cases provided for by paragraph 3 of Article 222 of the Civil Code, for which purposes an order is issued to the unauthorized developer to demolish all or part of the unauthorized building and to put the relevant territory in order, indicating the deadlines, in which the builder is required to take appropriate action.

However, subject to statutory conditions, the right of ownership to such a construction may be recognized by the court for a person who has carried out unauthorized construction on a land plot that does not belong to him or for a person who owns a lifetime inheritable possession, whose permanent perpetual use is such a plot.

The right of ownership for an unauthorized developer can be recognized only on condition that the land plot located under the corresponding building will be provided to this person in accordance with the established procedure for the erected building, and for the title owner of the site - with the obligatory establishment of the amount in which such an owner is obliged to reimburse the developer for expenses associated with construction. And none of these persons can be recognized as the owner of the relevant property if the preservation of the building violates the rights and legally protected interests of other persons or creates a threat to the life and health of citizens.

A significant initial basis for acquiring ownership of real estate is mismanagement such property. Ownerless According to the rules of Article 225 of the Civil Code, such property is recognized that does not have an owner or the owner of which is not known, or has renounced the right of ownership in accordance with Article 236 of the Civil Code. It should also be noted that in the latter case, such an owner is not deprived of rights and is not released from obligations in relation to the relevant property until the acquisition of ownership of it by another person.

The grounds and procedure for acquiring the right of ownership to ownerless immovable things are redefined by paragraph 2 b.2 of Article 25 of the Civil Code. This rule of law contains a description of the general procedure for registering and assigning ownership of the relevant property, as well as a closed list of other options for determining the fate of the said property.

At the request of the local self-government body, in whose territory immovable things are found or declared ownerless, by the bodies registering rights to real estate, such things are taken into account and, after a year from the specified day, the body authorized to manage the said property receives the right to apply to court with a demand to recognize the right of municipal ownership of this thing. If, prior to the recognition by the court of real estate of municipal property, its former title owner appeared, such a thing may be re-accepted by him into possession, use and disposal, or acquired into ownership by virtue of acquisitive prescription.

Acquisitive prescription(Article 234 of the Civil Code) is also one of the initial grounds for acquiring ownership of real estate. In this case, as well as on other grounds, the right of ownership to real estate arises from a person who has acquired this property by virtue of acquisitive prescription from the moment of state registration of the relevant legal fact.

In order to acquire the right of ownership to immovable property by virtue of acquisitive prescription, it is necessary that a person who is not the owner of the property, in good faith, openly and uninterruptedly owns this property as his own for fifteen years. Very important for the application of this basis for the acquisition of property rights is the legally correct determination of the limitation period for possession, the rules of which are directly listed in paragraphs 3 and 4 of Art. 234 GK. Thus, a person referring to the prescription of possession can add to the time of his possession all the time during which this property was owned by the person whose legal successor this person is. At the same time, the period of acquisitive prescription begins only from the time when the limitation period expires on a vindication claim or on a claim by an owner who is not the owner (Articles 1-5 of the Civil Code of the Russian Federation).

Further, a prerequisite for acquisitive prescription is the possession of property as one's own, that is, without taking into account the fact that it has an owner. Otherwise, the floor is questioned and two other mandatory requisites of acquisitive prescription - openness and conscientiousness of ownership of real estate

Good faith ownership of property means that in fact owning such property, the owner does not know and should not know about the lack of ownership rights, while the absence of the right establishing a document (for example, a home ownership passport) does not in itself prove the owner’s bad faith.

A person owns property openly when his possession is visible and is not hidden from any interested and uninterested third parties. An obligatory requisite of prescription possession is its continuity. If the owner performs actions that testify to the recognition by him of the obligation to return the thing to the owner, or the authorized person has filed a claim against him for the return of property, then the period of acquisitive prescription is interrupted. In this case, if other details of acquisitive prescription are present even after the end of the specified circumstances, the prescription of possession begins to flow anew. It should be taken into account that the time that has elapsed before the break is not included in the limitation period, although, if a third party unlawfully deprives the owner of the property, such owner has the right, in accordance with the law, to restore the violated possession. And the course of the period of acquisitive prescription continues as if there were no violation of possession, that is, continuously. And the last, important specifically for the modern period of time, is a remark about acquisitive prescription as the basis for acquiring ownership of real estate. Rules of the law on acquisitive prescription Art. 11 of the Law of the Russian Federation on the entry into force of part one of the Civil Code of the Russian Federation is retroactive, that is, acquisitive prescription also applies to the case when ownership of property began before January 1, 1995 and continues at the time of the entry into force of part one of the Code.

2.3 Pderivatives grounds for purchasingdenial of ownership ofreal estate.

The most common and regular way to acquire rights to real estate is acquisition of property under a contract. In order to acquire the right of ownership on such a basis, it is necessary that an agreement be concluded between the acquirer and the alienator of property in a simple, and in cases expressly provided by law and in a qualified written form. In this case, we can talk about a contract for the sale of real estate (paragraph 7 of Chapter 37 of the Civil Code of the Russian Federation), the form of which is established under pain of invalidity as written by drawing up one document by the parties (Article 550 of the Civil Code). At the same time, the legislator emphasizes and provides special protection for the obligation of the parties to register the transfer of ownership of real estate under a real estate sale agreement. In the case when the law requires mandatory notarization of the relevant contract, the acquirer's ownership right also comes after the state registration of this legal fact.

The most common methods of acquiring real estate are inheritance citizens by law or by will, as well as similar acquisition of the right of ownership of the property of a legal entity when it reorganization or liquidation. When a legal entity is reorganized to the legal successor organizations of such a legal entity, the ownership of the property belonging to it is transferred in the appropriate volumes in accordance with the deeds of transfer and the separation balance sheet (paragraph 3, clause 2, article 218, articles 58, 59 of the Civil Code of the Russian Federation). In the case of liquidation of a legal entity, that is, its termination without the transfer of rights and obligations to successors, the situation is much more complicated. The solution of the issue of the legal acquirer of the property of the liquidated organization depends on whether the participants in this legal entity retain any rights to its property and, if so, which ones and to what extent. By default of the law and constituent documents, the property remaining after the satisfaction of the requirements of creditors of a legal entity is transferred to its founders (participants) who have rights in rem or obligation to this property (paragraph 7 of article 63 of the Civil Code). However, if we are talking about a public association or a charitable foundation, then according to the law, and in other cases it can be determined by the constituent documents, the rest of the property during liquidation is directed to the solution of certain, for example, socially significant tasks. A significant role in determining the future fate of the property of a legal entity is also played by the basis for its liquidation.

Agreement on the transfer of real estate from state and municipal to private ownership– privatization agreement(Article 217 of the Civil Code) - should also be attributed to this type of grounds for acquiring ownership. This basis for acquiring ownership of real estate is especially relevant in recent years and causes, perhaps, the most a large number of extremely difficult to resolve litigation. The main reason for the emergence of difficulties in resolving disputes about the fate of real estate related to the privatization of state and municipal property is, in my opinion, the blanket nature indicated by the norm of the Civil Code and, accordingly, the regulation of these relations and processes by a large number of normative (and even non-normative) acts, published by various people. The competence of such persons, who decide the most important legally significant issues in addition to the legislative process and outside the general context of the development of legal doctrine, to issue the relevant legal acts, in many cases, began to be verified only in the course of litigation already related to the practice of applying these acts. And not always such a test was adequately sustained by them. In other words, this basis for acquiring property rights is not sufficiently regulated by law, which is confirmed below when considering the relevant cases.

In case of forced foreclosure on the property of the owner for his obligations there is, at first glance, no direct connection between the termination of the right of ownership of one person and its occurrence in another. However, the law provides for the termination of the right of ownership to such property from the alienator only from the moment the right of ownership to such property arises from its acquirer. The acquisition of property rights to real estate on the grounds under consideration is carried out, as a rule, in a judicial proceeding and is due to a significant number of restrictions. As a general rule, real estate is vital important view property for citizens and critical for the functioning of commercial organizations, part of their property complex. In this regard, foreclosure on the debtor's real estate is the last resort, in a complicated manner, and in some cases is expressly prohibited.

In the near future, apparently, such derivative methods of acquiring property by the state as nationalization, requisition and confiscation- pip on my tongue. In accordance with Art. 35 of the Constitution of the Russian Federation, civil legislation establishes that nationalization, that is, the conversion of privately owned property into state ownership, is carried out on the basis of the law with compensation by the state to the former owner of the nationalized property of its actual value and other losses in accordance with Art. 36 GK. It should be noted that the law on nationalization can be challenged only if it is inconsistent with the Constitution of the Russian Federation and only in the Constitutional Court of the Russian Federation, that is, it cannot be challenged in civil proceedings, but the court can resolve disputes about damages and the amount of such compensation in accordance from Article 36 of the Civil Code.

Compensatory seizure of property from the owner in the interests of society by decision of state bodies is carried out in the manner and on the conditions established by law and is called requisition. Requisition is applied in cases of natural disasters, accidents, epidemics, epizootics, under other circumstances of an emergency nature, therefore the confiscated and preserved requisitioned property can be claimed by the owner in court (Article 242 of the Civil Code).

In cases expressly provided by law, property may be confiscated from the owner free of charge by a court decision in the form of a sanction for committing a crime or other offense. By a court decision or in accordance with the law, in an administrative order (Article 243 of the Civil Code). At the same time, the state acquires the confiscated property by virtue of confiscation, At the same time, the decision on confiscation, taken in an administrative procedure, may be appealed to the court. A feature of confiscations is that the encumbrances of the right of ownership of the said property are transferred to the state only partially, and their execution is due to a number of restrictions, including quantitative ones.

Characteristic only for the acquisition of rights to real estate is such a basis as the redemption of real estate in connection with the withdrawal of the site on which it is located. Article 239 of the Civil Code determines the cases when it is permissible to withdraw from the owner or sell at public auction in the manner prescribed by Art. 279-282, 284-286 GK. An obligatory condition for the application of this ground is that the state body or local self-government body that filed the relevant request with the court has evidence that the use of the land plot for state or municipal needs for the purposes for which it is withdrawn is impossible without termination of the title owner’s right of ownership to this movable property or evidence of ownerless use of the relevant land plot. The withdrawal procedure looks like in the following way. The decision to withdraw a land plot, and, therefore, to buy out the real estate located on it, is subject to state registration. The title owner of said property must immediately be notified of registration, indicating its date, but no later than one year before the date of the forthcoming redemption. Until the expiration of a year from the date of notification of the owner, redemption is possible only with the consent of the owner. In cases where the owner does not agree with the decision to buy out or with the proposed terms of the buyout, the state body or local self-government body that made the decision that it is possible for the new owner to acquire property rights has the right to file a lawsuit for the buyout in court within two years from the date of sending the owner a notice of ransom. In relation to the mismanaged content of property, the right of ownership is acquired in the manner prescribed by Article 240 (for cultural property), 293 (for residential premises) and in other cases provided for by law. The specified property has an owner who is known, but treats it mismanagement, that is, allows its damage and destruction, the loss of other consumer qualities by it, or creates a threat to the rights and legally protected interests of third parties (such as, for example, , negligent owner of the hydroelectric dam).