With the demand for their own place in the sun skyrocketing, construction companies are increasingly acting as builders or developers, luring potential property buyers with low prices. interest rates, cost per square meter and the ability to pay in installments, but with one condition - you will have to wait for your share. The legislator admits that the shareholder has the right to assign his rights to another person. However, it should be borne in mind that one of the participants in the transaction will have to pay tax upon assignment of rights under the agreement equity participation.
Shared construction allows you to get an apartment for less investment, but with a few caveats - terms and risks. However, there is another opportunity to become the owner of shared property - the assignment of rights or an assignment agreement.
The agreement is between two persons:
- the first is the seller, it can be both a legal entity and an individual who sells his rights to real estate under the DDU;
- the second is an individual or legal entity who wishes to acquire housing rights by assigning rights and obligations under the DDU to real estate with the written (mandatory) consent of the developer (construction company) to change the debtor.
As a rule, only two parties are present in the assignment agreement.
On the one hand, everything is fine, but on the other hand, two logical questions arise: is it necessary to pay established tax when selling an apartment on the assignment of a DDU, since this process is nothing more than a sale and purchase, as a result of which one receives property, and the other receives profit from the sale. And another question: what is the tax on the sale of an apartment purchased under DDU, since according to tax legislation, the state also has to pay for such transactions. Assignment of rights under a contract of equity participation in construction is a transaction that requires registration and other legal actions.
One of the requirements for the participants or parties to the transaction, as it was written earlier, is to obtain consent from the developer to change the persons in the obligation. This is paramount, since any other actions without a proper document will not have legal force. Next comes the process of negotiations on the amount, an important aspect for all parties - the seller, the buyer and the tax service, the conditions for the transfer of rights and obligations.
A feature of the amount of the contract should be the condition of actual payment to the direct developer at the time of assignment. If the amount has not been fully paid under the DDU or there is no fact of payment, the future buyer will have an obligation to pay the required amount to the builder-developer. In this regard, it is always necessary to require receipts or checks for payments made so as not to incur unnecessary expenses.
If the DDU was issued through mortgage program, the seller will need to provide banking organization all documents of the buyer, proving the financial viability of the latter. Otherwise, the whole process may stall at the second level bank.
An important requirement and, in parallel, an advantage will be the legality of the future contract, since it must be concluded within the framework of civil law (Articles 388 - 390 of the Civil Code and Federal Law No. 214-FZ). Compliance with all norms and rules ensures the inviolability of the rights of the future owner, as well as a guarantee of the safety of the transaction for the seller, not to mention the peace of mind of state regulatory authorities.
When signing a cession agreement, you need to know for sure - is it necessary to pay tax when selling an apartment on the assignment of a DDU, and who should pay it?
For example, consider the simplest case in the life of tax officials: the buyer is a close relative of the seller (for example, spouses, children, parents, grandchildren, grandparents). When a notarized contract of sale, with the attachment of supporting documents (about kinship), according to the law, the obligation for taxes does not arise for any of the parties. However, it must be taken into account that the cold-blooded banking "machine" will refuse to provide credit line buyer due to direct relationship.
The second case from practice: if, under the assignment, the sale amount does not exceed the initial amount of the cost under the DDU, or plain language, for how much they bought, for how much they sold, the cession tax is paid only by the seller on the basis of Article 208 tax code RF: 13% for residents (citizens) and 30% for non-residents (foreigners).
At the same time, personal income tax can be reduced, thereby obtaining a tax deduction within the framework of the law. To do this, you must contact the local tax department before April 30 of the year following the reporting year, that is, when the rights under the DDU for property were sold and / or assigned, submit a declaration of the established form - 3-NDFL. In this scenario, the buyer has no mandatory contributions to the budget, and also does not pay taxes: this is the prerogative of the seller.
The third scenario: the seller is going to receive income from the sale of his rights under the DDU. In this vein, the tax on the assignment of rights under the equity agreement, the seller will have to pay either 13% for residents of the Russian Federation and 30% for foreigners, or take the opportunity and reduce the tax burden by the amount already paid to the developer. If the remote control was issued with the involvement of bank (mortgage) funds, then the amount of taxation is reduced by the amount of interest already paid under the mortgage agreement. In turn, the seller has the right to receive property deduction, which is calculated from the amount of the sale of real estate, if this amount does not exceed one million rubles.
It looks like this: 13% of one million rubles is 130 thousand rubles, thereby reducing or optimizing taxation for paying the mandatory tax to the state treasury. The buyer is exempt from this tax due to the acquisition of rights under the DDU.
It is recommended that the seller submit the appropriate forms to the tax department at the place of sale to avoid claims and unpleasant conversations with the inspectors later or “happiness” letters in the mailbox.
We must not forget about the property tax on the sale of an apartment purchased under the DDU, which the owner of the property is obliged to pay annually.
Guided by the code, the value of real estate is calculated from the accounting value of the cadastre, which, to the maximum, is equated to the actual price, that is, to the market price.
The calculation of the cadastral tax is simple: (cadastral price minus tax deduction) is multiplied by the share and multiplied by the rate, where:
- The cost according to the cadastre is based on the data of the Russian Register of Real Estate, the database of which is constantly entered and supplemented by newly built and put into operation construction objects (LCD, buildings, apartments, etc.).
- The tax deduction is based on the type of object - an apartment, a room or a house, including a residential complex.
This information can be found on the website tax office or ask the builder.
How to make a calculation
When calculating tax deduction Consider the following information in the table:
The size of the share means the percentage of ownership of the property that personally belongs to the buyer, that is, if the owner owns only half of the mentioned property, then this should be indicated - 0.5 or ½.
tax rate varies depending on the type of object (residential buildings, complexes, and so on).
You can familiarize yourself with it in more detail on the web portal of the Federal Tax Service or use the following simplified (as much as possible) table for perception:
| Bid | Object type |
| 0.1% (zero point one percent) | Residential buildings (including Construction in progress) and living quarters |
| 0,1% | Residential complexes, some of which consist of residential premises or a building (at least 1 habitable premises) |
| 0,1% | Car garages and car parks |
| 0,1% | Outbuildings and structures, the built-up area of which is not more than fifty square meters, located on the memory, special purpose of which - private household plots, household plots, horticulture, horticulture, individual housing construction |
| 2% (two percent) | Administrative, shopping centers, business centers |
| 2% | Non-residential commercial premises used for offices, retail space, catering and public services |
| 2% | Objects whose value according to the cadastre exceeds the mark of three hundred million rubles |
| 0.5% (zero point five percent) | Other objects |
For individuals calculation is made tax office by sending property owners the appropriate tax notice indicating the total amount, terms for payment, and so on.
As stated above, a contract (assignment agreement) can be ratified if the principal debt has been repaid or the balance has been transferred to a new third party under the agreement. Particular attention must be paid to the fact that in most cases the payment schedule and the total amount remain constant, that is, unchanged.
You should know one thing: an agreement on the assignment of rights or a change of persons in an obligation is all an assignment agreement. Other forms, variants, names and the like should not be taken into account, since the law provides exclusively for the aforementioned name of the document.
Treaty in without fail must be registered under Part 2 of Art. 11 FZ No. 214-FZ, as otherwise the transaction will be recognized as illegitimate.
In order not to fall into the hands of scammers and scammers, you should carry out the following actions:
- all mutual settlements are recommended to be carried out after the mentioned registration procedure due to the appearance of more and more dishonest scammers;
- the contract itself is recommended to be signed in front of a notary with the payment of a mandatory fee for legal support services.
The listed actions are aimed at ensuring that the buyer and seller sleep peacefully and do not worry that something is compiled or reflected in the text incorrectly.
The very procedure for the assignment of rights can be performed before the direct commissioning of the object, if, as mentioned above, the developer or builder has issued his own official consent to this. This will save the potential owner a lot of money for the family budget.
Results
Based on the above, the following conclusions can be drawn:
- The assignment of rights under the DDU is carried out directly through an assignment agreement, and only through a notary.
- It is impossible and not recommended to avoid sales taxes (in this case, you will have to pay a fine for production evasion mandatory payments to the budget, plus the tax itself), but it is quite legal to optimize them, which Tax law and provides.
- The cession agreement must be registered in order to avoid problems with the right of ownership in the future.
- Paying property tax is the duty of every legitimate property owner, and taking advantage of government tax breaks is an advantage for those who know the laws.
Judging in general and objectively, the risks have always existed and will exist: whether it is an unpaid fee under an agreement with a developer or an unsubmitted form in the right window of the department with a note that the due has been paid to the budget.
However, following the recommendations carefully collected in the above text, as well as drawing appropriate conclusions from the presented cases, which succinctly describe certain scenarios from life, you can avoid many problems and headaches with acquiring your long-awaited place in the sun. Thanks to government programs and conscientious investors-developers, getting your own cozy corner has become a reality.
If you decide to sell or buy an apartment in a new building, then it is not enough to find a second interested person and. After all, you are essentially not selling or buying real estate, but only the right to claim a future apartment. Therefore, if you are planning to carry out an assignment under the DDU - this is what this process is called, it is best to first understand the intricacies of the legislation and the pitfalls. Which are expected during the transaction, both the buyer and the seller.
What is a DDU assignment?
Important! It should be borne in mind that:
- Each case is unique and individual.
- Careful study of the issue does not always guarantee a positive outcome of the case. It depends on many factors.
To get the most detailed advice on your issue, you just need to choose any of the proposed options:
Let's start with the main thing - by deciphering the terms and translating from legal language into understandable. And here is something to understand:
- DDU is an equity participation agreement, the content of which is regulated by federal law No. 214 “On participation in shared construction apartment buildings and non-residential premises.
- Assignment is the transfer of the right to claim an apartment to a new shareholder. Those. your status changes - you stop being an investor. The status of the buyer changes - he becomes the owner of the right to claim real estate in the form of a dwelling. And the system of your relations with the developer is changing
- A developer or builder is a legal entity that assumes the right to collect money from equity holders for construction apartment building and undertakes to comply with all requirements of federal law. The developer, as well as the buyer and the seller, have their own rights - they can become a stumbling block in your relationship in the format of communication “assignment under the DDU”. But more on that below.
So, you need to conclude an agreement on the assignment of rights under the DDU - it is precisely such a confusing wording that will be more correct. Another legal name for such contracts is cession. Accordingly, the seller will be the assignor and the buyer will be the assignee. The developer always takes part in the assignment of rights under the DDU - as a third party with its own rights and opportunities. An assignment agreement can only be concluded before the housing is put into operation.
Through a pre-contract
There are two options for concluding an assignment agreement. One that is very dangerous for the buyer is a preliminary contract of sale. Despite the mass of minuses, it is not prohibited by the civil code.
The essence of the preliminary agreement is that you do not actually make an assignment of rights - you agree with the equity holder that he undertakes to conclude a contract of sale with you after the house is handed over and it enters into ownership. There are several disadvantages of such contractual relations:
- There's no way you can check the encumbrance this right requirements - whether the future apartment is in a mortgage, or is it pledged for some other reason
- You are entering into a contract for something that does not yet exist. In fact, you make a contract that someday there will be a contract
- In case of problems with the developer, you cannot take advantage of measures to support equity holders - after all, in fact, the investor is still the person with whom you entered into an agreement. Although you have already transferred the money to him
- There is no reason to believe that the seller in this situation will not conclude several such contracts and you will not be in line for this apartment
Do not enter into preliminary agreements for the assignment of rights of claim under the DDU. In fact, in this situation, you are not protected by anything.
According to DDU
There is an official way in which you interact with all possible parties in the cession process:
- Rosreestr will control the assignment of DDU upon re-registration
- Through the cession, the developer must necessarily give his consent to registration
- The scheme of settlements with sellers is drawn up extremely transparently
Assignment under DDU is the only legal way to re-register the right to claim a future apartment, not to be left without money and to be protected by law. Of course, in this situation there are also disadvantages:
- Quite a long process of registration of the contract itself
- Developer participation, with some of the developers taking extra money
- If a mortgage is issued, then the process is delayed - more on that below
Registration procedure
The assignment of an equity participation agreement in construction is a rather complicated process for an unprepared person. It consists of several stages:
| Salesman | Buyer |
| First of all, you need to obtain consent from the developer - without it, the transaction will be illegal. If the developer requires additional compensation from you for re-registration, bargain. According to the law, such actions of the developer are not illegal. | It is easier for the buyer to prepare for the deal. It is necessary to check all the information so that in case of problems to appear before the court as a bona fide buyer |
| Get a certificate from the developer stating that the settlement under the contract has been completed in full and there are no debts. This happens both if you paid in cash and if you paid with a mortgage loan. | If the buyer is married, then get the consent of the spouse and certify it with a notary |
| Contact Rosreestr and take a certificate in the USRR form - the procedure is paid, at the time of this writing, such a document costs 350 rubles | Examine and sign an agreement on the assignment of rights under a shared construction agreement |
| If there is a spouse, issue a notarized consent to the transaction for the re-registration of real estate | Register this agreement with the Rosreestr department or at multifunctional centers for providing public services |
| If a mortgage, then you will have to go to the bank and ask for a certificate of no debts and the consent of the bank | After 10 days, receive a certificate from Rosreestr stating that the contract is registered and there are no problems with it (for details, see Rosreestr). |
The assignment of an apartment under the DDU only seems quite simple. In fact, the buyer will have to check twice as much information as if he just bought the property from the developer. Let's look at the situation in more detail.
Examination
You can also get a template with empty fields for self-filling ()
Peculiarities
You need to understand that the assignment under the DDU carries certain risks. The process is regulated by Chapter No. 24 of the Civil Code of the Russian Federation - “Change of persons in obligation”. In particular, you need to know that it would be useful to register the contract with a notary - in case of fraud, this is unlikely to help you, but if there are problems with legal subtleties, then the notary will be able to suggest the best way out of the situation.
Registration
As a share agreement, the assignment agreement is registered in government bodies to check all documents and exclude the fact double sales. You can do this either at the Rosreestr office, or at any multifunctional center for the provision of public services. You will need:
- Contract between buyer, seller and developer
- Certificates of the absence of encumbrances or a certificate of consent of the bank, if there is a mortgage
- Equity agreement between the developer and the seller
- Passports of the buyer and seller
Advantages and disadvantages
If you are purchasing an apartment through a receivable assignment, then you are faced with several pros and cons of such a relationship. Among the pluses - usually or the price is slightly lower, because the apartment of the contractor is being sold, with whom they paid for the work with real estate, and not with money. Or just the very existence of an apartment in a popular new building. But there are a lot of minuses - not only for the buyer, but even for the seller.
double sales
It is quite difficult to become a deceived shareholder in our time. Ten years ago, any means of deceiving gullible citizens was a double sale of real estate. The developer would take an apartment, sell it to a few people, and then disappear. As a result, the police and the courts considered a lot of claims for the same living space. With the advent of Rosreestr and the mandatory registration of transactions in it, it became easier. Double sales by the developer, if the DDU mechanism works, are practically excluded. Another thing is cession - here you are not insured against double sales if the seller decided to act on preliminary agreement purchase and sale.
Without developer
You buy an assignment under the DDU, registration is underway, but suddenly you receive a claim from the developer - he did not agree to the transaction and is against it. In this case, the developer has the right to challenge the transaction, so be sure to check whether there is consent to the assignment of the right to claim the apartment. It must be in paper form, with the signature of the director and the seal of the organization.
taxes
The assignment agreement in Russia is taxed. Therefore, if you sold the right to claim your apartment for more than you bought it from the developer, you will have to pay personal income tax.
- For citizens of the country - 13%
- For a foreigner - 30%
Lawyer of the Board of Legal Protection. Specializes in handling cases related to appeals illegal activities officials, housing disputes, recovery of penalties from developers. Extensive experience in the 214 Federal Law.
A participant in the DDU (Share Participation Agreement), who bought the premises from the developer at the initial stage of construction, has the right to sell it to another party until the building is put into operation. (read)
An agreement on the assignment of rights is signed between the buyer and the shareholder. The parties to the transaction notify the developer in writing of this intention, providing him with a copy of the contract. Construction company must give their consent.
The cession is regulated federal law No. 214th article 11.
Information to the buyer
When purchasing an apartment by assignment of rights, there are nuances:
- When registering, the type of the original contract is indicated - the basis for the transfer of rights.
- The document is credited with a fixed amount and the calculation procedure. Without this clause, the transaction can be considered illegal.
- Documents of the builder for the implementation of construction activities are checked.
- The assignment agreement is certified by a notary.
- The buyer notifies the developer about the transaction, whether this item is written in the document or not.
Grounds for concluding a contract
The grounds for signing the assignment document are regulated by Article 328, paragraph 1 of the Civil Code of the Russian Federation. The right to property belonging to the shareholder (confirmed), according to the law, can be transferred to the other party under the concluded transaction.
Transferable through succession (inheritance) or reorganization legal entity if the premises are owned by an organization.
The shareholder may assign the right to claim if the following conditions are met:
- The assignment occurs after . Or, the debt is transferred at a time to a new person of equity participation in the contract. The second party will pay the developer.
- Assignment is allowed from the moment the DDU document is fixed, until the parties certify the subordinate act, or other paper on the transfer of the building into operation.
The initial person who ceded the claim is liable for the invalidity of the transferred right to the new party to the contract. But the shareholder is not responsible for the failure of the developer to fulfill its obligations.
Exception: a DDU participant vouched for the company to a new shareholder.
Algorithm for concluding a contract
- Checking the builder's documentation.
- Preparation of papers of participants.
- Preparation of contract.
- Recording of the agreement.
To check the papers, companies apply to the office of the organization involved in construction. The administration is obliged, at the first request of the acquirer, to submit necessary papers:
- Founding certificates of the enterprise.
- Registration certificate and TIN.
- Land patents - ownership or lease.
- Quarterly financial statement.
- Building license.
Together with these certificates, the buyer may request building plan. It states:
- Designed goal.
- Construction stages.
- Implementation of the building construction (term).
- Time of putting the house into use (estimated).
The organization must have a project declaration that prescribes how the developer's obligation will be fulfilled. And an agreement confirming on the basis of what (means) the construction is carried out.
Actions of the parties to the transaction
Before realizing the premises seller takes action:
- Notifies the developer of the sale - the organization is notified in writing. If the company is not warned about the change of equity holder, then the transaction may be declared illegal.
- The developer issues a written permit - the company requires up to 5% for the assignment process. Since the seller sells the area mainly at a price higher than he purchased from the company.
- The company issues a certificate of payment of the debt under the agreement.
- Consent (certified) of one of the spouses for the sale - when purchasing premises in marriage. read about the division of property.
- Bank permission - when the apartment is mortgaged.
- Extract from the EGPR (Unified State Register of Rights).
The buyer must obtain the permission of the wife / husband before purchasing (purchase of property in marriage). The future equity holder signs and receives a loan agreement if living space bought with a mortgage.
Correct compilation
After all the actions, an agreement is drawn up, subject to registration. The paper is compiled in construction organization, at a real estate agency or a lawyer.
The contract states:
- The subject of the agreement is the full name of the participants, the number of the document of participation in the DDU, the transfer object (number of rooms, total and living area, room number).
- Cost, payment procedure, ensuring the fulfillment of payment obligations.
- Obligations and responsibilities of the parties.
- Conclusion, addresses and signatures of the parties to the agreement.
Download the sample by going to .
Processing time
Registration takes place at the Registration or Cadastral Chamber and the MFC (Multifunctional Center).
In the presence of an employee participants sign an agreement and provide documents:
- Identification.
- Spousal consent, if required.
- Acquisition document previously signed with the developer.
- Information about the debt to the enterprise or a paper on the transfer of debt to a new shareholder.
- Company permission to transfer rights.
- Confirmation from the bank (with collateral) and a loan agreement, if there is a mortgage.
After the transfer of documents, the state duty is paid. Each customer has their own receipt. The registrar completes the application. It indicates: the object, technical parameters and data of the participants in the sale.
The cadastral officer accepts the signed agreement, originals and copies of papers. The seller and the buyer are issued a receipt of receipt with the date of the registered document.
Terms of assurance - from 5 to 10 working days.
At the appointed time, the acquirer takes the certified contract. The seller receives a document originally signed with the developer.
What are the features?
The buyer replaces the original owner. By agreement, he receives the amount of rights that the seller had.
The DDU participant has the right to demand the transfer of property at the agreed time. But the share document is subject to mandatory registration, and the right to claim comes into force from the moment of certification. The transfer of rights under the DDU is carried out, and this can take up to several months.
But if the meters are transferred to the shareholder, then the cession loses its meaning: the developer has fulfilled its guarantees, and the shareholder has exercised the right to DDU. In this case, a regular contract of sale is signed.
With DDU, the assignment is carried out only from the moment of registration until the premises are transferred to the owner.
Conclusion
The assignment of claims is not, as such, a document on the sale of residential space. This is the way where the parties change (shareholder or acquirer) in agreement with the developer.
Paying funds under the contract, new owner buys the rights and responsibilities under the main document concluded earlier with the construction company.
The assignment of rights is subject to the personal income tax rate:
- Resident of the Russian Federation - 13%.
- Non-resident - 30%.
The form of the document “Agreement of assignment of rights under an agreement on equity participation in housing construction (assignment agreement)” refers to the heading “Agreement of assignment of the right to claim”. Save a link to the document in in social networks or download it to your computer.
assignment of rights under an equity participation agreement in housing construction
(assignment agreement)
[date and place of conclusion of the contract]
gr. RF [F. I. O.], [day, month, year] year of birth, passport series [fill in the required] N [fill in the required], subdivision code [fill in the required], issued by [name of the authority that issued the passport] [day, month, year] , unmarried, registered at the place of residence at the address: [insert as appropriate], hereinafter referred to as the "Assignor", on the one hand
and gr. RF [F. I.O.], [day, month, year] year of birth, passport series [fill in as needed] N [fill in as needed], issued by [name of the authority that issued the passport] [day, month, year], subdivision code [fill in as needed] , unmarried, registered at the place of residence at the address: [insert as appropriate], hereinafter referred to as the "Assignee", on the other hand, have entered into this agreement as follows:
1. The assignor transfers, and the Assignee accepts the right to claim under the agreement on equity participation in the construction of housing N [insert as appropriate], concluded between [short name of the company] and gr. RF [F. I. O.] [date, month, year] for the transfer of one [indicate the number of rooms, for example, one-room] - room apartment N [fill in] with total area[in numbers and words] sq. m, located on the [insert floor] floor of residential building N [insert as appropriate] along the street [insert street name] in the city of [insert city name].
2. When signing this agreement, the assignor undertakes to transfer to the Assignee documents certifying the right to claim against [short name of the debtor's company], namely, to provide the original agreement on equity participation in housing construction N [insert the required one] dated [date, month, year], bilateral act reconciliations with [short name of the company], confirming the fulfillment by the Assignor of its obligations to pay for the equity participation funds under the specified agreement.
2. The assignor undertakes, within [meaning] days from the date of signing this agreement, to transfer to the Assignee documents certifying the right to claim against [short name of the debtor's company], namely, to provide the original agreement on equity participation in housing construction N [fill in the required] from [date, month, year], a bilateral act of reconciliation with [short name of the company], confirming the fulfillment by the Assignor of its obligations to pay for equity participation funds under the specified agreement.
3. The assignor is liable to the Assignee for the validity of the claim transferred to him, but is not responsible for the execution of this claim [short name of the debtor's company].
4. The assignor (Option: Assignee) undertakes to notify [specify how, for example, in writing, by sending a registered letter with notification] [short name of the debtor's company] of the assignment of the right to claim under the agreement by [day, month, year] on equity participation in housing construction N [insert as appropriate] from [day, month, year].
5. Precise characterization specified apartment(address, area, cadastral number) will be established by [name of the organization carrying out the technical inventory of real estate] in the technical passport for the apartment after the house is put into operation and indicated in the deed of transfer, which is drawn up between the Assignee and [short name of the company].
6. For the right of claim transferred under this Agreement, the Assignee paid the Assignor an amount in the amount of [amount in figures and words] RUB. in cash before signing this agreement.
7. The costs associated with the state registration of this agreement, as well as the ownership of the apartment, the registration of a homeowners association (HOA), shall be borne by the Assignee.
8. In all other respects that are not provided for by this agreement, the parties are guided by the current legislation of the Russian Federation.
9. In accordance with Art. 389, 433 of the Civil Code of the Russian Federation is subject to state registration in [indicate the name of the body responsible for state registration rights to real estate and transactions with it] and is considered concluded from the moment of such registration.
10. This agreement is drawn up and signed in three original copies, having equal legal effect, one of which is stored in the files of [indicate the name of the body responsible for state registration of rights to real estate and transactions with it] at the address: [fill in the correct one], and the other two are transferred to the Assignor and Assignee.
11. Signatures of the parties:
Assignor: [F. I. O., signature]
Assignee: [F. I. O., signature]
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