Sample contract for the allocation of a share to the children of a single mother. Allocation of shares of property to children from maternity capital: a sample agreement. How is the obligation fulfilled?

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Maternity capital is allocated by the state to support families in which, after 2006, second or subsequent children were born (adopted). Most often, spouses decide to send this financial aid to purchase a new home or to improve an existing one. Since this capital is still family, the state puts forward a requirement that each family member receive his share of the property. You will learn about the nuances of this process, the sequence of necessary actions by reading our article.

Is it necessary to allocate shares to children when using maternity capital

One of the goals of the allocation of maternity capital to the family by the state is to improve the living conditions for families with children. However, no less important is the provision of living space for children after they reach the age of majority. That is why the legislator obliges parents who have acquired real estate with the involvement of maternity capital funds to allocate shares to children, regardless of whether they were born after the use of state subsidies or after.

However, not all children are entitled to a share in the acquired housing. If the children are not blood spouses or are not adopted in the manner prescribed by law, then they cannot apply for housing purchased with maternity capital.

Is it possible not to allocate a share to the husband

In accordance with the provisions of paragraph 4 of Art. 10 FZ dated December 29, 2006 No. 256 “On additional state measures. support for families with children, residential real estate acquired with the involvement of maternity capital (or part of its funds) must be turned into the shared ownership of all family members of the recipient of the certificate. This means that neither the children nor the husband, in accordance with the requirements of the Law, can be deprived of part of such an object of real estate.

But even in this seemingly unambiguous question there are some exceptions. So, if the husband decides not to voluntarily receive his part of the living quarters, then he must write and notarize his refusal.

If the spouse does not want to draw up a refusal from a notary (and, accordingly, pay for his services), then after allocating a share to him, he can draw up a donation agreement and distribute his part among the children.

It is worth remembering that these measures cannot be applied to children, since the State acts as their guarantor until the age of majority.

Rules for the distribution of shares in an apartment when using maternity capital, the minimum share

There are no specific norms for the size of parts of the apartment that should be allocated to children after the encumbrance is removed with the help of maternity capital. However, it is worth being guided by the norms of the Housing Code of the Russian Federation and local regulatory by-laws. Depending on the region in which the housing was purchased, the minimum share is from 6 to 12 square meters.

Usually, each member of the family is allocated an equal share. But it is worth remembering that at the birth of subsequent children, in their favor it will also be necessary to separate part of the housing, thereby reducing the area of shares of other family members.

Also, it is not uncommon to find an option in which only a part proportional to the maternity capital is allocated to children or the second spouse.

Example. Single mother Kopylova E.Yu. in 2005, she acquired a two-room apartment with a mortgage of 60 sq. meters and cost 2 million rubles. She got married in 2006 and gave birth to her second child in 2008, thereby becoming entitled to receive and dispose of a family certificate. She decided to use it and pay off the mortgage on the apartment in which her whole family lived. At this point, the debt to the credit institution was 200 thousand rubles. Kopylova used part of the capital and fully repaid the debt and removed the encumbrance from the apartment. After that, in accordance with this obligation, she had to determine what share to allocate to her husband and two children. In fact, she could allocate shares to each of only 6 square meters. meters (10% of the total cost of the apartment, which is paid for by maternity capital). However, the woman made a decision and allocated this 1/10 part to her husband, and divided the remaining 9/10 in equal shares between herself and two children. There are no violations in the actions of Kopylova, since each member of the family received housing as the property.

How to allocate a share to children in an apartment purchased with maternity capital in 2019

In order to comply with the requirements of the Law and provide children with a part of the living quarters acquired using family certificate funds, two options can be used:

conclude an agreement on the allocation of shares;
make a donation for the parts allocated to children.

Despite the fact that both methods do not contradict the rule of law, the first one is still preferable, since it is he who is directly indicated in paragraph 4 of Art. 10 Federal Law No. 256 of 2006.

After the document you have chosen is drawn up, you must contact the regional branch of the State Register or any office of the State Budgetary Institution "My Documents" (MFC). An application is drawn up there and after 14 days each family member receives an extract from the USRN stating that he is the owner of a part of the dwelling in a certain share.

It is worth noting that parents act on behalf of children under 14 years of age. They certify all documents for them and the appearance of minors in state bodies is not required. If the child is already 14 years old, then he himself can draw up and sign the application, but the signature of the parents is still required - to certify the documents drawn up by the child.

Required documents

To apply to Rosreestr, you must prepare the following certificates:

passports of parents and children over 14;
birth certificate of the child, if he is not yet 14;
documents for an apartment (extract from the USRN, cadastral passport)
donation agreement or;
certificate of the credit institution on the removal of the encumbrance (mortgage payment, membership fees, etc.);
application (drawn up already in Rosreesr or in the MFC with the participation of specialists);
receipt of payment of state duty.

Price

As with any registration of a real estate transaction, you will have to pay a mandatory tax fee. Its size is fixed in Art. 333 of the Tax Code of the Russian Federation and in 2019 is 2000 rubles. This amount must be paid not by each participant in the transaction, but for all by the total amount.

You can do this in any convenient way:

through payment terminals;
through electronic payment systems;
in cash at the cash desk of any bank.

Share allocation period

The term given by the legislator for the fulfillment of the undertaken obligation to divide an apartment acquired using a family certificate is 6 months from the date of removal of the encumbrance from the property. Do not confuse this moment with the date of use of the capital.

Removal of an encumbrance - repayment of a mortgage, payment of the last payment in shared construction, commissioning of a residential building. That is, from the moment the subsidized funds or part of them are used to the moment the encumbrance is removed, it may take not 6 months, but several years.

Agreement on the allocation of shares in maternity capital

In 2017, changes came into force, according to which it is necessary to certify agreements regarding the allocation of a share with the signature of a notary. This document must contain the following information:

personal data of each of the participants in the transaction;
information about the apartment (size, location, etc.);
grounds for the emergence of property rights;
series and certificate number;
certificate of payment of debt to a credit institution;
in what shares the apartment is divided;
clarification that the shares may be reduced at the birth of subsequent children;
notary certification of the legality of the transaction;
the signature of each participant.

If you do not know how to draw up an agreement correctly, or if you have other questions about the allocation of a share, then the site's specialists can provide a free consultation around the clock. In general, it is still worth entrusting both the drafting of the agreement and the support of the entire transaction to an experienced lawyer specializing in housing law. He will independently collect all the documents, present you in any instance. If necessary, he will immediately bring complaints against the actions (inaction) of officials. This will help speed up the process as much as possible.

How much does it cost at a notary to allocate shares to children on maternity capital

When you have decided whether it is necessary to allocate shares in the apartment to the children and have drawn up an agreement on this, you need to contact a notary. His services in accordance with Art. 333 of the Tax Code of the Russian Federation cost 500 rubles. However, you will also have to pay for the technical work of a specialist. Depending on the region of the country, the agreement will cost you 1000-2000 rubles.

What will happen if you do not allocate shares to children for maternity capital

What threatens not to allocate a part of the apartment acquired after the transfer of funds from family capital? In fact, there is no criminal or administrative responsibility. However, if housing purchased with state funds under the maternity certificate program is sold without allocating parts of it to children, then signs of a crime under Art. 159 of the Criminal Code of the Russian Federation (fraud). And the transaction itself for the sale of the apartment will be recognized as illegal and canceled.

There is no body that exercises control over the timeliness of the allocation after the transfer of materiel funds. Formally, these duties are assigned equally to the Pension Fund of the Russian Federation, guardianship authorities and Rosreestr. But in practice, no one monitors whether you were able to issue shares in a timely manner.

Arbitrage practice

Disputes about the allocation of shares in an apartment obtained using mother capital are quite rare. Usually they relate to the size of the share or the actual allocation of it by the parents. When establishing the fact of not allocating part of the housing, the guardianship authorities usually issue a warning and give parents a chance to fulfill their obligation on their own. And only if this is not done, then a lawsuit follows. In such situations, judges in 100% of cases make a decision in favor of minors. The verdict is sent to Rosreestr and changes are made without the participation of the direct owners (parents who have not fulfilled the obligation).

Example. The parents of the two sons of the wife of Elina in 2008 used the funds of the mother capital and repaid the mortgage loan for the apartment in which they lived. In 2015, their daughter was born. However, the couple did not consider it necessary to give her a share in the apartment, but only registered her there. Elina's mother filed a lawsuit to allocate her granddaughter a share in housing, arguing that each child should have their own property. The court sided with the plaintiff and granted the claim.

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The certificate holder, when directing state support funds to improve living conditions, should be aware of the need to allocate shares to children when using maternity capital funds. Moreover, this requirement applies not only to those children who already live in the family, but also to those babies who may appear in the future.

In this regard, the state approved the need to draw up an obligation, which the certificate holder sends to the Pension Fund of Russia. It is required when, at the time of receipt of materiel funds, it is impossible to register housing in the ownership of children for any reason. This obligation is dictated (as amended in 2010 No. 937), all the conditions for its fulfillment are also explained there.

Commitment Process

An obligation aimed at allocating shares of maternity capital to children is an act confirming the intention of the spouses to divide into shares a residential property acquired with the help of maternity capital.

In order to correctly draw up an obligation, the owner of an apartment or house needs to contact a notary together with the second parent, taking certain papers with them. It does not matter what kind of office it will be - public or private. The cost of this procedure is approximately 1,500 rubles.

What documents are needed for a notary to draw up this obligation?

Mortgage agreement (if part of the loan is paid by the mother capital).
Contract of sale.
Passport with copies of all completed pages.
Certificate of ownership.
Certificate for maternity (family) capital.

The original of the obligation, certified by a notary, must be taken to the PFR department.

When should the obligation be fulfilled?

Although the main law regulating the process of acquiring mother capital (No. 256-FZ) does not provide for specific deadlines for registering shares, this period is clearly stated in Government Decree No. 862 - it is six months and is assigned based on the terms of the real estate acquisition transaction.

When does this period start and what does it depend on?

If someone from the family has not received ownership of the purchased premises, six months are accrued from the moment the Pension Fund of Russia transfers the required amount to the person who alienates the property.
If a residential property is purchased on an installment plan and with a sale and purchase agreement drawn up, the period for allocating children's shares begins from the moment the last payment is made. The house or apartment must be paid in full.
Being a participant in shared construction, a citizen is obliged to make real estate common within six months after signing the deed of transfer.
When building a house, the prescribed six months begin from the moment the house is put into operation.
When reconstructing or building a residential property, it is necessary to allocate all shares within six months from the date of receipt of the cadastral passport of the object.
If, at the expense of mother capital, there was compensation for the costs of reconstructing or building housing that was already owned by someone from the family (starting from January 2007), you need to issue shares to the rest of the family members no later than 6 months from the moment the PFR transfers the entire amount.
If the certificate holder is a member of a housing cooperative and the state support money is sent to pay the entry or share fee, half a year begins after the last payment is paid off.
If the property was purchased with a mortgage and the mother's capital funds paid off part of the interest on the loan or became a down payment, 6 months for the transfer of shares to children and another parent come either after the mortgage encumbrance is removed from the property, or after the house is put into operation (in case of individual construction), or when the FIU transfers family capital funds (subject to the fulfillment of the above two conditions).

What share to allocate to children?

The share of ownership of a dwelling is determined based on the ratio between the price of an immovable object and the amount of state support that went to pay for it. It is the share from the mother's capital that must be necessarily divided equally among all family members.

In the law on the allocation of family capital funds to families with children, there is no indication of the minimum share of property due to each adult and child. However, such a rule exists at the regional level. Article 50 of the Housing Code grants the subjects of the Russian Federation the right to independently establish the minimum standard of living space required for each person living in a residential building. The rate also depends on the number of people living in one dwelling.

The minimum footage for each family member with several children is approximately:

9-10 square meters for citizens living in a separate apartment or private house;
12-18 squares for residents of premises intended for the residence of several families (for example, for communal apartments or hostels).

If possible, it is better to stick to these numbers.

Since the right to own real estate also applies to future children, the agreement should contain a clause on the possible reduction of the share of ownership in the living space or on their redistribution.

What can lead to ignoring the obligation?

If you do not fulfill the obligation and do not give a share to children, wife or husband, the Pension Fund may require an account for the funds received from the state and discover their misuse. What will happen? In the best case, the property owners themselves will give shares to all members of their family, in the worst case, the PFR will force them to return the money.

When deciding a case in court, the prosecutor's office can independently decide on the distribution of shares between parents and their children, and this order will need to be fulfilled.

If the PFR authorities are not interested in the details of ownership of the acquired residential property, problems may arise when selling it. When concluding a purchase and sale agreement, the history of this residential facility will be checked, and the fact of violation of the law will certainly come up.

It should be noted that not only the FIU, but also the guardianship authorities, the prosecutor, as well as the children themselves, having reached the age of 18, can sue.

How to allocate shares to children?

To fulfill the obligation to allocate shares in real estate purchased with family capital, you can use one of two methods:

transfer shares by making a donation;
conclude an agreement on the allocation of shares.

There is a third way, when the spouses cannot come to a single agreement. Then the court intervenes.

The first step depends on who owns the property. If the object is owned by one of the parents, then the first thing to do is to give the second one the same right, and then decide how to give a share to the children.

When both parents already own shares in an apartment or house, they can draw up an agreement on the division of property acquired in a joint life, so that then each of their shares will allocate a part to the children.

If both parents own the property, they just need to decide how to transfer part of the property to the children. Chapter 16 of the Civil Code of the Russian Federation will help here, in which you can find provisions on common property.

Consider both options for allocating children with shares in real estate purchased with the help of mother capital.

Agreement on the allocation of shares to children

An agreement on the allocation of shares to children contributes to the redistribution of the right of common ownership of a house or apartment. When drawing up such an agreement, the father and mother can act simultaneously in several roles:

as citizens acquiring shares in common property;
as the original owners of the premises;
as persons allowing the conclusion of a transaction to children under the age of majority;
as representatives of their children (not older than 14 years).

The agreement is drawn up by a notary who needs to provide the following documents:

data of the certificate for obtaining mother capital;
contract of sale;
a copy of the obligation drawn up by a notary;
passports of spouses and their children (if the latter is 14 years old);
birth certificate of each child;
Marriage certificate;
a certificate of ownership (indicating that the housing is not burdened with a mortgage) or an extract from the USRN (which can be ordered online on the official website).

When concluding an agreement, the personal presence of all participants in the transaction and their signatures are required, with the exception of children under 14 years of age. In this case, each participant in the transaction must put his signature. For young children, their parents, who are their legal representatives, sign.

donation agreement

To allocate shares of property to children, you can draw up gift agreements. Each of the parents independently draws up a deed of gift for a part of the house or apartment. Of course, if the sole owner is a single mother, one contract will be enough.

A donation agreement is an act of transferring a part of property into the possession of children on a gratuitous basis. This agreement is drawn up by a notary and is subject to mandatory state registration, that is, first the agreement is certified by a notary, and then it can be submitted to the Registration Chamber or the MFC.

The process of donating property is regulated by Chapter 32 of the Russian Civil Code. According to the law, the specific object of property to be donated must be indicated in the contract. Otherwise, the act of donation will not be recognized as valid.

The list of documents with which you need to contact a notary:

an extract from the Unified State Register of Real Estate or a certificate of registration of ownership;
founding agreement (for example, a contract of sale);
passport and copies of all completed pages;
children's passports (from 14 years old);
birth certificates of children to whom a share is allocated;
technical passport for a residential facility (this act can be ordered at the BTI or MFC).

If a deed of gift is issued by a single mother, she needs to seek help from representatives of the guardianship and guardianship authorities so that they represent the interests of a minor child who is under 14 years old. This is necessary, since Article 182 of the Civil Code of the Russian Federation forbids the donor to be simultaneously the representative of the donee. If the child is already 14 years old, he can independently sign the contract, having done this "with the consent of his legal representative" (in this case, the mother). If the child is already 18 years old, he is a full participant in the transaction.

The transaction value can reach 0.5% of the cadastral value of a house or apartment (but not more than 20 thousand rubles).

Conclusion

Housing acquired or reconstructed with the help of maternity (family) capital must belong to the whole family, including those children who may appear in it in the future.

Therefore, if it so happened that it is not possible to register the apartment or house being purchased as the common property of the whole family, you need to draw up and notarize an obligation of your intention to do this within the time period established by the legislation of the Russian Federation, when such an opportunity arises.

Failure to comply with the terms of the accepted obligation entails legal liability. And while deliberately ignoring the rules for the distribution of shares in real estate, in the acquisition of which mother capital money participated, one must be prepared for the fact that the FIU may demand the return of the entire amount. It is best to act in accordance with the laws of the Russian Federation and fulfill the obligation either by concluding an agreement on the allocation of shares to children, or by writing a deed of gift.

Last updated February 2019

A young family, a mortgage, the birth of a second (or subsequent) child, maternity capital ... For some time now, another concept has tightly occupied a place in this row - the obligation of parents to allocate a share to children in a residential building.

It is drawn up if the family uses maternity capital to pay off mortgage debt. Thus, the state, which guards the interests of a minor child, tries to protect him from the risk of being left without a roof over his head under certain circumstances (family breakdown, death of parents, etc.).

Most often, a mortgage loan is issued by married couples, where both spouses are co-borrowers and at the same time owners of housing purchased with a mortgage. Therefore, we will consider this option in our article.

For information! A loan can be issued solely for any of the spouses. Loans and mortgages are not allowed for other relatives, otherwise it will be impossible to dispose of maternity capital.

When is a commitment made?

After receiving a certificate for maternity or family capital, you need to re-apply to the territorial department of the Pension Fund of the Russian Federation corresponding to the address of your residence. There you need to write a statement that you want to send his funds (or part of the funds) to repay a housing loan.

The PF specialist will, among other numerous documents, require the specified obligation from you in the presence of the following circumstances:

Without a pre-arranged obligation, the Pension Fund will not allow you to use maternity capital funds to pay off mortgage debt.

Who should make a commitment

The obligation must be drawn up by the owner of the housing for the purchase of which a loan was issued and a mortgage was issued. It is this person who guarantees the allocation of a share to children, spouse. Usually (if we are talking about a family where its members are husband, wife and children), the acquired property is either in shared or joint ownership of the spouses. That is, both spouses are co-owners of the apartment. But there are cases when an apartment was purchased with a loan in a mortgage before marriage. The owner will be one of the spouses (acquired housing). It is then that he draws up an obligation on his own behalf.

To whom is the obligation issued?

As a general rule, an obligation is issued in relation to:

spouse and all children in the family (if the owner of the apartment is one of the spouses).
all children (when the apartment is owned by both spouses).

It should be borne in mind that when drawing up the obligation, only those children with whom there are official parental ties (blood parents, adoptive parents, etc.) are taken into account.

For example, a woman married a man who has a son from his first marriage. The son began to live in a newly formed family. During their marriage, they had two children together. With regard to the husband's child from his first marriage, the wife did not establish a family relationship. The family purchased an apartment with a mortgage. When applying for the disposal of maternity capital, the woman submitted an obligation to allocate a share only for two joint children.

When Commitment Is Not Required

If the purchased apartment on a mortgage was initially registered with spouses and children, then instead of the obligation to the pension fund, along with the application for the disposal of maternity capital, certified copies of documents confirming the ownership of the housing (acquisition agreement (purchase and sale), certificate of ownership) are submitted. property) of children and spouses.

How a commitment is made

The obligation to allocate shares in housing to their children is drawn up by a notary in accordance with the norms of Federal Law No. 256 of December 29, 2006, entitled “On Additional Measures of State Support for Families with Children”, and certified by him. The cost of processing such a document is about 1100-1500 rubles.

A commitment that is not certified by a notary has no legal force and is not accepted by the pension fund. The original obligation is transferred to the PF.

When drawing up the obligation, both parents must be present, who are borrowers and will become full owners of mortgage housing after the encumbrance is removed from it.

If the borrower and the owner of the apartment is one of the parents, then the personal presence of only such a parent is required.

The text of the document states that parents undertake to register their apartment (other housing), acquired using maternity capital, into their own property, as well as into the property of all their children they have on the day this obligation is fulfilled, within the time limits specified by law. In confirmation, the document is signed by the parents with a decoding of the last name, first name and patronymic.

Deadlines for fulfilling obligations

The above federal law provides for a six-month period for the fulfillment of this obligation (that is, the allocation of shares in housing to children) from the moment the mortgage loan is repaid, the mortgage is returned to the borrower, and the fact of removing the encumbrance from the apartment will be registered in Rosreestr.

Pay attention to the fact that it will be necessary to allocate shares in the apartment to all children, how many of them will be in the family at the time of fulfillment of the obligation, that is, repayment of the mortgage loan.

For example, in 2013 your second child was born, you used maternity capital funds to partially repay a mortgage loan, you paid it in full only in 2015, and by that time a third child was born in the family. So all three children will need to allocate shares.

What size of shares to establish

The legislation does not specify the specific amount of the child's share, which should be reflected in the obligation and subsequently allocated. But the Housing Code of the Russian Federation states that the norm of living space per person is 12 square meters. This rate may vary in different regions of the Russian Federation and depending on various situations. The same normative act provides the minimum sanitary standard for living space, and it is equal to 6 square meters.

The text of the obligation itself does not require an indication of the specific size of the shares that should be allocated to children, but in the process of registering housing for ownership, this issue must be approached with all seriousness.

Liability for non-fulfillment of an obligation

Several years may pass between the execution of the document and the implementation of the obligations given in it - few people manage to repay a mortgage loan in a couple of years. Yes, and the original obligation to allocate shares to children is given to the Pension Fund when applying for the intended use of mother capital. And, as they say, out of sight, out of mind. However, this obligation should not be taken lightly and forgotten.

Until now, the legislator has not clearly established who exercises control over the fulfillment of the obligation and what measure of responsibility is provided for the violator.

However, it cannot be said that the violation of an obligation is an absolutely unpunished act. Practice knows many examples of bringing persons to criminal liability for fraud. But this is mainly due to the cashing of a certificate for maternity capital.

If we talk about a simple failure to fulfill the obligation to allocate shares in the apartment to children, then such liability options are possible as:

recognition of the invalid transaction for the sale of an apartment. For example, parents paid for part of the apartment with maternity capital, but did not fulfill their obligations to allocate shares to children. The apartment has been sold. Subsequently, such a sale can be challenged, recognizing it as illegal, that is, return everything to its place (they take away the apartment from the buyer, and the parents return the money to the buyer). This issue is resolved in court. The plaintiff can be any interested person, including a pension fund or a child who has reached the age of majority, who has not been allocated a due share.
compulsion in court to allocate a mandatory share. This issue can be raised by the prosecutor's office and the pension fund.

In a number of regions of the Russian Federation, checks for compliance with obligations are carried out by state bodies (the prosecutor's office, the pension fund, together with guardianship and guardianship authorities).

Based on recent trends, they want to resolve this problem at the legislative level.

The question often arises about the consequences of improper performance of an obligation, for example, violation of the deadline. By and large, if the deadline for fulfilling an obligation is overdue, no one will prevent its fulfillment on the grounds that the allotted time has expired. Accordingly, there is no liability for the fulfillment of obligations with delay.

Failure to comply with the conditions specified in this document threatens the culprit with administrative liability, as well as the payment of previously received maternity capital in full back to the state treasury.

Removal of encumbrances from housing

In a credit institution, in confirmation that the mortgage loan is repaid, you will be issued a mortgage. With it, as well as originals and photocopies of a loan (or credit) agreement, a sale and purchase agreement (or an equity participation agreement in housing construction, if the apartment was purchased in a new building), a certificate of state registration of ownership of this apartment, you should contact the Regpalata.

Upon your application, the fact of removal of the encumbrance will be registered, and if you wish, you will receive a new Certificate of registration of rights to housing ownership. This procedure is free.

After that, within six months, you must fulfill the obligation and allocate shares in this housing to the children.

The process of allocating shares to children

The allocation of shares to children for maternity capital in housing can occur in at least two ways:

by drawing up an Agreement on the allocation of shares in housing for children in connection with the use of maternity capital,
by compiling their minor children.

Theoretically, neither method contradicts the norms of Russian civil law and represents a gratuitous transfer of a share in real estate (that is, both the first and second methods are donations, executed in different ways), but in practice it is better to first consult with a specialist of the registering authority (registration chamber). ) in your region.

In our opinion, it is better to make an ordinary donation, since this transaction is extremely clear, clearly spelled out by the legislator. There will be no questions during registration.

Let's consider these methods in more detail.

Agreement on the allocation of shares in housing

You can draw it up at the notary, providing the latter with the necessary documents and paying about 1500-2000 rubles. At the same time, you can be almost sure that the agreement will be drawn up legally competently and will suit the registration authority.

But you need to know that this document does not require mandatory certification by a notary, therefore, you can draw it up yourself and completely free of charge. But there is no guarantee that it will be issued correctly, and state registrars will agree to accept it. Until now, a single sample of such a document has not been developed that would suit any employee of the Regchamber.

Agreement of donation of shares in housing

It is not difficult to find a sample standard agreement for parents donating shares in housing to their minor children. You can turn to law firms for help in compiling it. Employees of the Regchamber are quite willing to register transactions executed in this way.

Controversial issues arise when it comes to what kind of property the parents have housing - in a common joint (without specifying the size of the shares) or in a shared one (in mortgage apartments, each spouse often has ½ of a share).

When the ownership of an apartment is divided into shares, everything is clear: one parent gives part of his share to one child, and the second part of his share to the second.

When the property is joint, it seems to be even simpler, because it is assumed that everyone owns half. But some registrars require the spouses to first set the size of the share in the apartment for each by agreement, and only then allocate them to the children in the manner indicated above. Therefore, it is also advisable to first consult with a specialist of the registration authority of your particular region, and only then draw up an agreement.

Both of these documents are different in form, but each of them must contain mandatory information:

date and place of compilation,
full personal data of the participants in the transaction (full name, date and place of birth, address of registration and actual residence, passport data),
characteristics of the apartment (location address, footage),
link to the registration document of the residential premises,
the size of the share in the apartment, established by each participant in the transaction.

Documents are drawn up in several copies - according to the number of participants in the transaction, one is sent to the registration authority. For example, when shares are allocated by two parents to two children, an agreement or donation agreement is drawn up in five copies.

The donation agreement is signed by all participants. If the donee are minor children, then the text of the contract indicates which of the parents is the legal representative of a particular child. The document is signed on behalf of the child in this case by the respective parent.

The documents

When you have decided which way of giving children shares in an apartment is most appropriate for you, you need to prepare the following documents:

applications for registration of the right to ownership of a share in an apartment on behalf of each participant in the transaction (filled in by the state registrar),
an agreement on the allocation of shares in the apartment or a donation agreement in the required number of copies (signed by the parties in the presence of the registrar),
parents' passports (originals and copies of all pages with marks),
marriage certificate (original and photocopy),
birth certificates of all children (originals and their photocopies),
a document certifying state registration of ownership of housing (original and its photocopy),
agreement on the purchase and sale of an apartment (contract of shared construction, etc.),
receipts confirming the payment of the state fee in the total amount of 2000 rubles (this amount is divided equally between all participants in the transaction).

You can submit documents directly to the Registration Chamber, or through the Multifunctional Center. Their review takes about 10 working days. When contacting the Multifunctional Center, this period can be extended up to 12 days.

After the expiration of the above period, certificates of state registration will be issued to the applicants for each, indicating a specific share.

Allotment of shares in another apartment

When you provide a branch of the Pension Fund with an obligation to allocate a share to a child in an apartment due to the use of maternity capital funds when buying it, then their duties include transmitting information about this to the Regpalata. This is done so that the owners, having paid off the mortgage, could not make any deal with this apartment without first allocating shares in it to their children.

Let's open the secret that this is not always done. Meanwhile, in practice, there are often situations when such negligence of PF employees comes into play.

Example. A young couple immediately after the wedding buys a one-room apartment in a mortgage for 10-15 years. A year later, their first child is born, a couple of years later - the second. Having received a certificate for maternity capital, they direct all its funds to repay a mortgage loan. As a condition necessary for such use of materiel funds, an obligation is drawn up to allocate shares in this one-room apartment to children. The loan is repaid and there is an opportunity to sell this one-room apartment and buy more living space. But what about commitment?

You can contact the guardianship and guardianship authorities and ask for permission not to allocate shares in a one-room mortgage apartment, but to allocate them in another, larger one. In practice, this body does not give such permission - you already have this small housing, but who knows if there will be another.

They offer to draw up a sale and purchase transaction at your own peril and risk - perhaps the pension fund did not transfer information about your obligation to the Regpalata and the transaction will go off without a hitch and without a hitch.

If this is true, then no one will forbid you to sell the housing bought on a mortgage, purchase another one and allocate shares to the children already in it. Here everything is on your conscience. But you should not forget about responsibility either.

If the risk is not included in your plans, then you will need to allocate shares to children in mortgage housing - what is indicated in the obligation, then go through a long procedure for permission to sell it in the guardianship authorities. And they will certainly demand to allocate shares to children and in newly acquired housing, in no smaller amount. If at all they deem it necessary to give permission for its sale. And this is a double payment of by no means a small state duty, a double collection and re-issuance of documents.

To avoid such difficulties, at least two pieces of advice can be given.

If, when buying a home with a mortgage, you and your spouse, even in the distant future, are planning the birth of a second child, consider options with two-, three-room apartments, etc.
If one apartment was bought on a mortgage, and you want to allocate mandatory shares for children in another, try to make a deal so that both housing is yours at the same time and at that moment apply for permission to the guardianship department. In this case, you should not refuse to allocate shares to children in an apartment with a large footage, even if it is not indicated in the obligation.

How is the obligation fulfilled?

After the allocation of shares for children in the apartment passes the state registration in the Rosreestr, the obligation is considered fulfilled. You can dispose of the apartment as you please, but, however, already with the permission of the guardianship and guardianship authorities.

The fulfillment of the obligation to provide any reporting or notification to the pension fund is not required. Also, there is no need to withdraw the obligation itself (the document in the original) from the pension fund for its cancellation and so on. If you have any questions, to confirm the fulfillment of the obligation, it is enough to present documents on the right of shared ownership of the apartment with children.

If you have questions about the topic of the article, please feel free to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article, if a similar question has a detailed answer, then your question will not be published.

The current legislation has clarified the regulations for the protection of the rights of the child to a part of the living space, fully or partially financed from the federal budget. Consequently, an obligation is a guarantee that a child will be given a share of the mortgaged housing. How to properly legitimize the obligation will be discussed in the article.

Commitment to provide a share

Disposing of the resources of the MK allocated from the federal budget, parents are obliged, following the recommendations of the law, to transfer part of the purchased apartment to the ownership of the children. The official obligation to allocate a share should be issued within the time period provided for by the current law ( 6 months).

Compliance with the law in this approach guarantees the right not only of a child to a share in the ownership of a house or apartment, but also the right of each parent of a married couple to a part of a residential property if, for various reasons, the parents divorced and dissolved the marriage.

To allocate a share in residential real estate acquired with the help of mother capital, it is necessary to collect several documents (these documents are described in detail below). An application for the disposal of mother capital funds for, together with the “Obligation”, is submitted to the branch of the Pension Fund.

It is important to understand that this obligation does not need to be formalized when the purchased housing passes into fractional ownership. All owners are indicated in the document on ownership of a residential facility, and therefore, this issue can always be controlled.

Experts note that the Pension Fund will respond positively to the application for the transfer of maternity funds from the budget in two cases:

When applying for a mortgage with the subsequent refinement of the obligation to allocate a share of the house to the child upon completion of the calculations;
When buying a home with a share for each child.

In other cases, without registering the obligation, the branch of the Pension Fund of the Russian Federation will not give consent to the withdrawal of MC cash.

The form of obligation for all notaries is the same. It is presented below:

When is the obligation to allocate a share realized?

The procedure is carried out in several stages, after:

Repayment of debt on a mortgage loan;
Removal of encumbrance;
Completion of settlements with the seller of housing (if the apartment is purchased under the Act of Sale and Purchase);
Payment of the last payment (in the case of buying a home in installments);
Approval of the document on the transfer of premises (with participation in shared construction);
Putting the construction object into operation (if the contracting organization is engaged in this procedure);
Obtaining a cadastral passport (when the construction of the facility is carried out on its own);
Transfer of funds for the reconstructed house;
The final payment of the share in the housing cooperative.

Who initiates the execution of the obligation and in whose favor?

The initiator of registration of the obligation is the owner of housing burdened with a mortgage. Parents (or one of them) guarantees the provision of a share of the living space to the child. A person acquiring residential real estate on a mortgage can issue an obligation in favor of children to allocate a share in this object.

An obligation may be issued in relation to:

Each of the children (if the co-owners of the property are spouses);
Children and a second spouse (when the house belongs to one of the parents).

The obligation is drawn up only for children with whom there are parental ties, blood or official.

Does it always need to be drawn up?

When housing purchased on a mortgage is issued for all family members, then there is no need for an obligation as such. In order to confirm the guaranteed right of children to housing, in addition to the application for the disposal of capital, the local branch of the FIU is provided with documentation proving the rights of children to the relevant part of the property.

A notary should certify photocopies of property documents and a contract of sale.

The procedure for drawing up an obligation

The procedure for issuing an obligation is regulated by Law No. 256-FZ of December 29, 2006. Obligation not certified by a notary in the Pension Fund do not accept because such a document has no legal status. For making a commitment you will have to pay 1100 - 1500 rubles, while the original should be submitted to the PF department. Each of the spouses must be present at the time of registration of the document.

The obligation notes that the spouses undertake to divide into shares the apartment purchased at the expense of the mother's capital. Spouses and all children will act as co-owners.

The obligation specifies the terms during which parents are obliged to formalize the right to own property to co-owners (i.e., to children). The document is certified by handwritten signatures both parents, with a detailed transcript of the signature.

The federal law sets a time limit for 6 months. During this time, homeowners are required to provide shares to all children in the family at the time of termination of mortgage debt. Such an obligation must be fulfilled within the specified period, after receiving a mortgage from Rosreestr, confirming the fact of the liquidation of the encumbrance from the real estate.

Methods of property transfer

You can allocate shares in the following ways:

Donation agreement (notarized);
Drawing up an agreement for a share.

Share agreement can be drawn up in free form, but in order for all positions and important nuances to be taken into account, experts recommend using the services of a notary.

Separation of shares after divorce

According to the law, spouses, upon dissolution of marriage, can divide not only property (real and movable), but also money. At the same time, benefits and subsidies allocated from the federal budget are an exception. So maternity capital is not subject to division between spouses.

Therefore, the mother's certificate will remain for the person in whose name it was issued (more often, these are mothers,).

Law No. 256 on additional measures to support the population does not indicate that the rules for using MK can be somehow changed in the event of a divorce of parents.

When housing is purchased after a divorce with federal funds from the MC, then the owners in this case will be the mother and children.

When is the right to dispose of maternity capital lost by the mother and transferred to the father?

In the event of the death of the mother;
When she commits unlawful acts against a child;
When depriving the mother of parental rights;
If the court recognizes the mother as missing;
Upon termination of the unfinished process of adoption of a child.

In addition, if the father single-handedly raises his own or adopted children (one or more), then the right to receive a mother's certificate may be transferred to him.

When children receive a share of maternity capital

Often in practice, the division of housing between family members, as well as registration with government agencies, is carried out independently. If in this order the obligation not formalized, then there is a need for its compilation and registration in a notary.

When the maternity capital is directed to repay the mortgage, then before transferring the capital to the PFR bank declares the need to sign an obligation on the distribution of shares in a notary residential property between all family members, including children.

Experts note that there is still no single regulation of the described procedure, therefore, an individual approach to registration can be formed in the registration chambers.

Does the spouse always receive a share of maternity capital?

According to Art. 209 of the Civil Code of the Russian Federation, a share in an apartment purchased at the expense of federal funds of the MK may become the property of a spouse. In cases stipulated by law, the owner has the right to dispose of his part of the property at his own discretion. The content of Art. 42 of Federal Law No. 218 establishes a notarial procedure for registering rights to real estate.

Design sequence

The allocation of shares of an apartment is made in one of the following ways:

Registration of the distribution of maternity capital funds;
Making a donation of property from parents to children.

Parents can choose any of the above methods based on the gratuitous transfer of part of the property. Both of these methods are legal, but more often than not, parents choose to donate property. If all the formalities of the procedure are followed correctly, there should be no problems with registration in the registration centers.

If an agreement is reached on the allocation of shares, then this procedure requires legal correctness, and involves the participation of notaries. In the case of an independent drafting of an agreement, gross errors can be made that do not allow government agencies to approve the transaction.

If both spouses have the right to own residential property, the registration authorities may require that a bilateral agreement between the parents be formalized in advance for the subsequent distribution of shares among all family members, including children.

When dividing shares upon the fact of purchase and sale at the time of its preparation in the text of the document indicate all future owners. The same registration procedure is applicable in the construction of a residential facility at the expense of the MC, followed by the issuance of a cadastral passport and a second document on ownership.

The situation with the division of shares in a mortgage apartment requires detailed coverage. An apartment that is pledged is usually listed on the spouses (sometimes on one). How in this case to allocate shares using a certificate? Although there is no separate legislative act for this case, experts recommend the following procedure (this will be discussed below).

Elimination of encumbrance on housing

It's possible after full repayment of the loan. After the termination of settlements with the bank, you need to get a mortgage from them. Next, they write an application for the removal of the encumbrance to the registration chamber of Rosreestr with the attachment of documents:

Purchase and sale agreements;
Ownership document;
Mortgage.

The Registration Chamber issues an Extract from the Register of Rights to Real Estate. After receiving this document, the owners can officially divide the property or donate (in whole or in part) to children. Application for this procedure sent to the MFC and there is no state duty to pay.

Contacting a notary

Any procedure can be notarized at choice:

donation;
Agreement.

When the owner of the apartment is one person, or spouses who own joint property, then notarization is not required. The procedure for issuing a division agreement is the same. When the apartment belongs to several owners by the right of equity participation, then in this case the contract is certified by a notary.

It should be understood that there are differences between common and shared property. In the case of a mortgage, the property is most often registered in the name of both spouses. The registration center is forcing them to register shared ownership (after the division of the common property), and then proceed to the allocation of children's shares. A donation of a share is issued in an amount equal to the number of participants, plus one copy intended for transfer to Rosreestr. Experts advise to draw up a donation by a notary, to guarantee the legal correctness of the transaction.

Currently, the notary has a standard Agreement form used when registering property in common ownership, including children and parents. This form provides for the separation of parts of the apartment, which is very convenient for users. The cost of this agreement can be up to 0.5% of the total cadastral value of housing.

Sample Agreement

Registration of the transfer of ownership

To complete the procedure, reapply to Rosreestr and do the following:

In the organization, write a statement from each owner;
Hand over notarized copies (can be approved in writing in the presence of the registrar) documents - agreement or deed of gift;
Hand over passports of parents and birth certificates of children;
Property document;
Documents confirming the fact of purchase of housing;
Receipt confirming the payment of the fee.

A package of documents can be submitted in person, as well as transferred through the MFC. Within 10 days after receiving the documents, the registration center will prepare and will issue an updated extract from the USRR including all homeowners.

Agreement of donation of a share in housing

When transferring housing shares to minor children, authorized representatives (guardians or parents) must be present who will monitor the technical condition of the premises and guarantee payment of the appropriate share of utility bills.

Despite the registered property right, the child will not be able to dispose of his share of the housing until he reaches the age of majority. Control over the correctness of the transaction is assigned to the guardianship authorities.

The law does not exclude the possibility of making a donation with the possibility of returning the gift item to the original owner. This possibility must be agreed in writing before the end of the donation procedure.

In case of refusal, this fact will be registered with the state registration authorities of real estate. If the owner is more than one person, then it is necessary to attach the consent of each owner, certified by a notary.

A sample donation agreement for a share of an apartment is presented below:

What are the consequences of ignoring the obligation to allocate a share

Despite the fact that the text of the obligation to allocate a share contains a warning about bringing to responsibility for non-compliance with the laws of the Russian Federation, not a single regulatory act prescribes the types of responsibility for not allocating a share of housing to a child from maternity capital resources.

In more than 95% of cases, the prosecutor's office, after checking the spending of MK funds in relation to minor children, makes decisions binding parents to provide their children with appropriate shares of housing.

Usually, violators refer to the lack of time to re-register the property. In addition, families who plan to sell housing bought on a mortgage are reluctant to draw up documents, since real estate transactions in which minor children are registered must be agreed with the guardianship authorities.

As a result of prosecutorial checks, many facts of cashing out MK and spending them on non-target needs are revealed. By law, such a deviation from the rules is fraud, punishable a fine of 120 thousand rubles or imprisonment.

Is it possible to sell a house by allocating shares to children according to MK in another room?

The sale of a dwelling purchased with the funds of the MK must take place in full accordance with the law. Therefore, if housing is sold without allocation of a share, then the transaction is legally may be invalidated. The issue of allocating a share to children in another room is a voluntary procedure that parents can conclude at their own request.

Upon reaching the age of majority, children can sue the sellers or owners of the apartment with a request to allocate to them a share or compensate for the corresponding cost of the part of the housing that should belong to the plaintiff by law.

The conclusion is obvious: in order not to become a participant in an unpleasant trial or litigation, you should fulfill your obligations to allocate a share of residential real estate to children in a timely manner and in full, if federal funds from mother capital were used to purchase an apartment.

In doing so, it should be taken into account that the state does not regulate the exact parameters of these shares leaving the right to decide this issue to parents by reaching an intra-family agreement.