The right of ownership or real estate is alienated. Alienation of property: its essence and types. Voluntary and forced alienation

Submitting your good work to the knowledge base is easy. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Posted on http://www.allbest.ru/

FEDERAL STATE EDUCATIONAL

INSTITUTION OF HIGHER PROFESSIONAL EDUCATION

SIBERIAN ACADEMY OF PUBLIC SERVICE

COURSE WORK

On the topic: Agreements on the alienation of property: concept, features, classification

Completed:

Kovetskaya I.V.

Checked:

Help K.V.

Novosibirsk 2010

• Introduction
• Chapter 1. General provisions
• Chapter 2. Features of certain types of agreements on the alienation of property
• 2.1 Purchase and sale agreement
• 2.2 Donation agreement
• 2.3 Agreement of exchange
• Conclusion
• List of sources used

Introduction

Contracts of purchase and sale, exchange, donation, annuity and lifelong maintenance with dependents, designed to regulate such different and distant relationships, are united by one circumstance: their main focus is on the transfer of property. It is the transfer of property (albeit on very different conditions) that constitutes the main element of the subject of obligations arising from these contracts.

Relevance of this topic course work due to the great importance of contracts on the alienation of property in civil law, as one of the components of the development of a market economy and rule of law. Every day in our lives we become participants in relationships regulated by civil law, sometimes without even knowing it.

The object of the course work is social relations developing in the field of alienation of property in Russian Federation.

The subject of the course work is the theoretical provisions expressed by various scientists and legal scholars on the regulation of legal relations in the field of contracts for the alienation of property, as well as the legal framework governing relations between participants in these types of contracts.

The purpose of the course work is to consider contracts on the alienation of property, their classification, highlighting the features of such contracts, to find out why the legislator distinguishes certain types of contracts and for what, what is their practical scope of application.

To achieve my goal, I need to consider the following questions: the concept of alienation of property, legal regulation of contracts for the alienation of property, as well as consider the features of certain types of contracts (purchase and sale, donation, barter, rent).

In my work I use a theoretical research method (study and analysis of legal literature and documents, legal acts, monographs, sources and judicial practice), a comparative method (comparison of various criteria and grounds).

The course work consists of two chapters, the first examines the legal regulation and classification of contracts for the alienation of property. The second chapter contains the features of individual agreements on the alienation of property.

Chapter 1. General provisions

1.1 Legal regulation of contracts for the alienation of property

property contract alienation exchange

Alienation is the transfer of property into the ownership of another person; one of the ways the owner exercises the right to dispose of his property. There is a distinction between paid alienation (purchase and sale) and gratuitous alienation (donation). It is carried out mainly at the will of the owner on the basis of an agreement concluded by him with the purchaser of the property. Alienation of state Not movable property organization or, conversely, the alienation of the organization’s real estate into state ownership in cases established by law is based on a planning act. In cases provided for by law, alienation is carried out against the will of the owner (i.e., forcibly): for example, alienation of real estate belonging to a citizen into state ownership by confiscation (free of charge) or by requisition, i.e. for compensation, with payment of the value of the property (Civil Code of the Russian Federation, Art. 149); by gratuitously confiscating a mismanaged house (Civil Code of the Russian Federation, Art. 141); through the forced sale of the debtor's real estate for the purpose of collecting a debt awarded from him by court.

Contracts of purchase and sale, exchange, donation, lease, rent and lifelong maintenance with dependents, rental of residential premises, free use, designed to regulate such different and distant relations, are united by one circumstance: their main focus on the transfer of property. It is the transfer of property (albeit on very different conditions) that constitutes the main element of the subject of obligations arising from these contracts.

The transfer of property is one of the forms of property disposal. Therefore, the second common feature of these agreements is that the person transferring the property must have the necessary authority to dispose of it, i.e. is, as a rule, the owner of this property or the subject of another limited property right.

The person accepting the property becomes either its owner (purchase - sale, exchange, donation, rent), or the legal owner of the specified property (rent, housing lease, loan). In the latter case, the person, although not the owner, owns the property on the basis provided for in the relevant agreement, and receives, like the owner, in rem - legal protection. This circumstance can also be recognized common feature contracts for the transfer of property.

Main source legal regulation contracts on the alienation of property is the Civil Code.

Relations related to purchase and sale, primarily Ch. 30 (art. 454 - 566).

Along with the Civil Code, other federal laws are also sources of legal regulation of purchase and sale relations. In a number of cases, the Civil Code itself indicates which federal laws are subject to application to the relevant legal relations. For example, to relations under a retail purchase and sale agreement with the participation of a buyer - a citizen, not regulated by the Civil Code, laws on the protection of consumer rights and other legal acts adopted in accordance with them are applied (clause 3 of Article 492 of the Civil Code). First of all, this refers to the Law of the Russian Federation “On the Protection of Consumer Rights” (as amended on January 9, 1996). The laws on the supply of goods for state needs, including the Law of the Russian Federation “On the supply of products for federal state needs” (as amended on June 19, 1995), apply to relations for the supply of goods for state needs.

In some cases provided for by the Civil Code, it is allowed to regulate purchase and sale relations by decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation (legal acts)

Chapter 31 of the Civil Code is dedicated to me.

There are special rules governing the obligations arising from the barter agreement, which take into account one or another feature of this agreement and indicate, among other things, the independent nature of the barter agreement. These are the following special rules.

In cases where the barter agreement does not contain conditions on the price of the goods being exchanged, as well as on the distribution between the parties of costs associated with the fulfillment of obligations, one should proceed from the assumption that the subject of the agreement is the exchange of equal goods. The costs of transferring goods, their acceptance and other actions related to the execution of the contract must, in each specific case, be borne by the party that bears the corresponding obligations under the contract (clause 1 of Article 568 of the Civil Code).

At the same time, if it follows from the text of the contract that its subject is the exchange of unequal goods, the party obligated in accordance with the contract to transfer goods, the price of which is lower than the price of the goods offered in exchange, is assigned an additional obligation to pay the difference in prices for specified goods. Payment of the price difference must be made immediately before or after the transfer of the lower priced item.

A special rule, in comparison with the rules governing the purchase and sale agreement, and with the general provisions on civil law contracts, as already noted, is provided by the Civil Code in relation to the exchange agreement regarding the moment of transfer of ownership of the goods being exchanged. The essence of this rule is that unless otherwise provided by law or the exchange agreement, the ownership of the exchanged goods passes to the parties acting as buyers under the exchange agreement, simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties (Article 570 of the Civil Code).

The regulation of relations related to the application of liability for the seizure (eviction) of goods received under an exchange agreement (Article 571 of the Civil Code) also differs in some features. As is known, under a purchase and sale agreement, the seller is obliged to transfer the goods to the buyer free from any rights of third parties, unless the buyer himself has agreed to accept the goods encumbered by the rights of third parties. This provision fully applies to the barter agreement. At the same time, if this obligation is violated by a party under an exchange agreement, it must not only compensate its counterparty for losses, as is the case under a purchase and sale agreement, but also return to the counterparty the goods received from him in exchange. Consequently, if a product is a thing with individually defined characteristics, in such cases it can be claimed back from the other party.

Rent and lifelong maintenance with dependents are regulated by Chapter 33 of the Civil Code.

Taking into account the internal classification of the types of annuity agreement, the rules on its corresponding type (subtype) should be applied to each of them, and if they are insufficient, the “General provisions on annuity and lifelong maintenance with dependents” (§ 1, Chapter 33 of the Civil Code).

In addition, relations related to the transfer of property for payment of rent, taking into account the direct instructions contained in paragraph 2 of Art. 585 of the Civil Code are regulated by the rules on purchase and sale - in the case of a paid transfer of property into the ownership of the rent payer, or on donation - if the transfer of such property was made free of charge. Both these and other norms are guided when otherwise is not established by the rules on the annuity contract in general, its individual types (subtypes) in particular, and also does not contradict the essence of the annuity contract itself. Thus, from the rules on purchase and sale, those that provide for the moment of transfer of the risk of accidental destruction of the transferred property (Article 459 of the Civil Code), the obligation to transfer the thing free from the rights of third parties (Article 460 of the Civil Code), obligations parties when a third party brings a claim for the seizure of the thing transferred to him from the buyer (Article 462 of the Civil Code).

Chapter 32 of the Civil Code is devoted to the gift agreement, which contains a number of special rules intended to regulate the agreement of the promise of a gift and the donation agreement. The identification of these types of gift agreements is not the result of a strict scientific classification based on any single criterion, but rather is explained by the presence for each of them of a certain set of qualifying features that reflect the characteristics of these types of gift agreements, which require special regulation.

Among the subsidiaryly applied rules on donations, in particular, Art. 580 of the Civil Code (on the consequences of harm caused by the lack of a donated item) and paragraph 2 of Art. 576 (on the donation of property in common joint ownership).

The norms of Art. are devoted to the donation agreement. Art. 572 - 582 Chapter 32 of the Civil Code and Federal Law of August 11, 1995 N 135-FZ “On Charitable Activities and Charitable Organizations”. Row special norms the donation is enshrined in the Federal Laws “On Referendum” dated June 28, 2004 N 5-FKZ and “On Political Parties” dated July 11, 2001 N 95-FZ.

1.2 Classification of contracts for the alienation of property

The classification of contracts for the alienation of property allows us to solve a number of important problems. At the same time, the division of contracts has not only theoretical, but also important practical significance. It allows participants in civil transactions to quite easily identify and use in their activities the most essential properties of contracts, and to resort in practice to a contract that best suits their needs. An opportunity is being created to systematize the legislation on contracts on a scientific basis and increase the consistency of regulations.

The differentiation of contracts can be carried out on a variety of grounds, selected depending on the goals pursued.

Since contracts are a type of transactions, they are also subject to the division of transactions into various types. Thus, the doctrine common to all transactions about their division into consensual and real is equally applicable to contracts.

Let us first consider contracts that can be either real or concessional.

In the literature based on HA, three points of view have already emerged. Those who adhere to one of them consider the annuity contract to be real, while, according to others, it is a consensual contract, and still others - depending on the object, either real (in the case of alienation of movable property) or consensual (in case of alienation of real estate). During the period of the Civil Code of 1964, naturally, the circle of supporters of all these points of view in relation to the lifelong maintenance agreement with dependents was much wider, as well as the arguments that they gave.

It is known that ultimately the division of contracts into real and consensual is based on the difference in the role played by the transfer of a thing (property) associated with the contract. In a real contract, transfer is a necessary element of its conclusion, and therefore: no transfer - no contract. In contrast, a contract concluded before the transfer of the thing is considered consensual, as a result of which the transfer itself constitutes an element of the content (execution) of the contract.

Bearing in mind this criterion, in relation to lifelong maintenance with dependents (and now - to annuity), it should be recognized that the legal definition of a real contract in the part related to annuity payments should have contained the formula “transfers into ownership”, and the consensual one - “obliges transfer ownership."

A gift agreement can be either a real or a consensual agreement (promise of gift). A gift agreement concluded by the donor transferring property to the donee differs from a consensual agreement of promise of donation not only at the time of its conclusion, but also in that it does not give rise to obligations of the parties at all, and therefore cannot be classified as real contracts.

While contracts of sale and exchange are consensual,

under a consensual agreement, for an obligation to arise, it is sufficient for the parties to reach an agreement (consensus) regarding the terms.

The next basis is the division of transactions into paid and gratuitous.

One of the compensation agreements is the annuity agreement. This is manifested in the need for the payer of the rent to provide its recipient with rental payments (rent, rental income) in exchange for the property received into ownership. The purchase and sale agreement is for consideration, since the buyer is obliged to pay a certain price for the goods. A barter agreement implies a condition that each party must receive payment or other consideration for the performance of their duties.

A gratuitous gift agreement is one in which the donor does not receive any consideration from the recipient.

A rent agreement differs from a gift agreement in that the person who has alienated property into the ownership of another has the right to demand the provision of counter-satisfaction - rental income. A annuity contract differs from purchase and sale and barter contracts in the nature of the consideration provided to the annuity recipient for the property alienated by him. Under a sales contract, the buyer pays a certain price for goods (including those sold by installments). Similarly, under a barter agreement, the mutual alienation of goods by the parties is carried out for a certain, pre-assessed compensation. Under an annuity agreement, the amount of annuity payments due to the recipient is uncertain, since the obligation to pay annuity is valid either indefinitely (permanent annuity) or for the life of the recipient (lifetime annuity).

All agreements aimed at the alienation of property will be mutual, since they presuppose the existence of mutual rights and obligations on both sides.

Gifting is always a two-way transaction, i.e. To complete it, the agreed will of both parties involved in the transaction is necessary. This means that to conclude a gift agreement, the desire of one person to transfer a thing or property right to another person as a gift is not sufficient. The recipient must also clearly express his consent to accept the gift.

The definition of an exchange agreement contained in the law shows that it is mutual (bilateral). Under an exchange agreement, its participants mutually undertake to transfer ownership of certain things (goods) to each other, while one party, acquiring ownership of an item, instead of paying the purchase price (in money), transfers another item to the other party. Consequently, each of the parties to this agreement is simultaneously a seller in relation to the transferred goods and a buyer in relation to the received goods (the corresponding goods act as the price).

Rent agreements are bilateral agreements, the parties to which are the annuity payer and the annuity recipient. Rent is a transaction in which one party (rent recipient) transfers ownership of property to the other party (rent payer), and the rent payer undertakes, in exchange for the received property, to periodically pay rent to the recipient in the form of a certain amount of money or the provision of funds for its maintenance in another form.

From the definition of purchase and sale it follows that the contract is reciprocal. A purchase and sale is a bilateral transaction in which one party (the seller) undertakes to transfer the property (product) to the other party (the buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.

Chapter 2. Features of certain types of agreements on the alienation of property

2.1 Purchase and sale agreement

A purchase and sale agreement is one of the types of agreements governing obligations to transfer property. This explains the widespread use of purchase and sale agreements in property circulation. It is no coincidence that the provisions defining relations related to purchase and sale open Section. IV Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), dedicated to certain types of civil obligations (Chapter 30). Essentially the structure of Chap. 30 of the Civil Code, the range of issues resolved in it, the location of its norms and even their language largely determined the methodological approaches to the regulation of all other civil contracts (lease, loan, contract, transportation, etc.).

The agreement in question is complex in its structure, covering a wide range of different legal relations, which is expressed in the presence of numerous individual types of the specified agreement, in respect of which special regulation is provided with the help of special rules within the framework of the general regulation of the corresponding independent type of agreement.

So the purchase and sale agreement has seven different types, namely contracts: retail purchase - sale, supply, supply of goods for government needs, contracting, energy supply, sale of real estate, sale of an enterprise.

The purpose of a purchase and sale agreement is to transfer ownership of the thing serving as a commodity to the buyer. By general rule The ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. In cases where the alienation of property is subject to state registration, the acquirer's right of ownership arises from the moment of such registration, unless otherwise established by law (Article 223 of the Civil Code).

A purchase and sale agreement is a generic concept in relation to some other agreements (certain types of purchase and sale agreements), the essence of which is that one person undertakes to transfer any property into the ownership of another person, and the latter undertakes to accept this property and pay for it a certain amount of money (price).

The identification of these types of purchase and sale agreements serves primarily the purposes of the simplest and most optimal legal regulation of similar legal relations. The similarity of the relevant legal relations allowed the legislator to establish a rule according to which the general provisions of the Civil Code governing the purchase and sale agreement are subject to subsidiary application to these contracts (clause 5 of Article 454). This approach saved the legislator from the need to reproduce in the Civil Code each time the same rules governing most of the terms of these agreements, which would be inevitable if they, along with the purchase and sale agreement, were given an independent character. Considering the above-mentioned agreements as separate types of purchase and sale agreements, the Civil Code could limit itself to only pointing out their qualifying features and establishing in relation to these agreements some special rules subject to priority application, taking into account the specifics of the regulated legal relations.

There is no single criterion for distinguishing between individual types of purchase and sale agreements. Chapter 30 of the Civil Code, which regulates the purchase and sale agreement and its individual types, is built on a different principle: in relation to certain types of the purchase and sale agreement, a set of characteristic features(qualifying characteristics) that distinguish the corresponding agreement into a separate type of purchase and sale while maintaining relations of kind and type with the latter.

The main problem faced by the courts is related to the acquisition of property from an unauthorized alienator, which occurs quite often; in this regard, there is a DECISION of the plenum of the Supreme Court of the Russian Federation ON SOME ISSUES OF THE PRACTICE OF RESOLVING DISPUTES RELATED TO THE PROTECTION OF PROPERTY RIGHTS AND OTHER PROPERTY RIGHTS, paragraph 25 of which provides for the right of the owner file a claim to recover property from the illegal possession of the person who acquired this property.

The practice of resolving such cases causes a lot of controversy. O.Yu. Skvortsov directly speaks about the flaws in the construction of the rules on vindication, which “lead to the legitimation of the groundless acquisition of property rights or the acquisition of property rights on legally flawed facts, which are invalid transactions.” In the practice of resolving disputes between the owner and a bona fide purchaser, there are often cases of the use of restitution and the return of property to the owner, bypassing the restrictions established by Art. 302 of the Civil Code of the Russian Federation, and despite the fact that the owner was not a party to the transaction for the alienation of property, and this is not permissible.

In the analyzed situation, both parties defend their property rights. The second party had the right of ownership, but lost actual possession, the first party in good faith acquired the right of ownership under the transaction and quite logically and legally considered itself the owner until another owner showed up. And since there cannot be two owners of one thing, it is necessary to decide which party needs to be protected and which to refuse protection.

I will give an example from judicial practice.

The claim for reclaiming property from someone else's illegal possession (vindication claim) was satisfied by the court, due to the fact that the real estate purchase and sale agreement was drawn up in violation of the law.

OJSC "SF" appealed to arbitration court with a claim against individual entrepreneur Vovnenko I.F. for reclaiming real estate - non-residential premises.

The plaintiff motivated his claim by the fact that the purchase and sale agreement concluded with the defendant indicated only the address of non-residential premises without indicating the size and location of other property, and on the basis of this the agreement is considered not concluded. At the same time, state registration of ownership rights for IP Vovnenko I.F. was carried out.

The court, having considered all the materials of the case, agreed with the arguments of OJSC "SF", since the law establishes the rule that an agreement is considered concluded if its parties have agreed on its terms on all essential terms. In a real estate purchase and sale agreement, the condition about the real estate object is essential and an unclear indication of its characteristics and location means its insignificance.

Based on the above facts, the court, in accordance with Art. 302 of the Civil Code of the Russian Federation, satisfied the claim of OJSC "SF" to claim real estate from IP Vovnenko I.F.

The purchase and sale agreement is an independent institution of civil legal relations in the system of national economic activity. Today, purchase and sale is the most common civil contract. The movement of material goods in commodity form, which forms the basis of any obligation, appears in a sales contract in its purest form and is its immediate content. The special importance of this institution in modern law is due to its great flexibility and the breadth of its scope, because in essence, purchase and sale is the most universal form of commodity-money exchange.

Most of the problems that arise in judicial practice in cases of acquisition of property from an unauthorized alienator, caused by a broad interpretation of Art. 168 Civil Code of the Russian Federation. They are trying to “squeeze” into the content of this article all transactions with any defects in their elements. This interpretation is most likely due to the legal consciousness of our judicial and legal workers, who were brought up during the reign of the principle “only what is directly permitted by law is permitted.” It seems that in private law relations the opposite principle should unconditionally dominate: “everything is permitted that is not directly prohibited by law.” The effect of this principle should be manifested, of course, in the fact that talking about the nullity of a transaction under Art. 168 of the Civil Code of the Russian Federation will be possible only after a specific rule has been found that prohibits any of the terms of the transaction.

2.2 Donation agreement

Modern civil legislation contains the following legal definition of a gift agreement: a gift agreement is an agreement under which one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release her from property obligations to herself or to a third party (clause 1 of Article 572 of the Civil Code).

In the system civil contracts The gift agreement is distinguished as a separate type of contractual obligations, due to the presence of some characteristic features that allow it to be qualified in this capacity. Among these features are the following special features of the gift agreement:

1) gratuitous;

2) an increase in the donee’s property, an increase in the donee’s property should occur at the expense of a decrease in the donor’s property;

3) the donor, who transfers property to the donee or releases him from obligations, has an intention to gift the latter, i.e. increase the donee’s property at the expense of his own property;

4) consent of the donee to receive the gift.

It can be noted that among the named characteristic features of a gift agreement, the main feature is the sign of gratuitousness of this agreement. The remaining features are necessary and, in a certain sense, independent features of the gift agreement. This judgment is traditional for civil law, including the domestic civil law doctrine.

Civil legislation allows the conclusion of a gift agreement based on the model of both a real and a consensual agreement (promise of gift). A gift agreement, concluded by the donor transferring property to the donee, differs from a consensual agreement (promise of donation) not only at the time of its conclusion, but also in that it does not give rise to obligations of the parties at all, and therefore cannot be classified as real contracts. By its legal nature, such a gift agreement is a “transaction agreement,” i.e. a legal fact that serves as the basis for the termination of the donor’s ownership right and the emergence of the recipient’s ownership of the donated property. Perhaps the only reason why this legal fact is recognized not only as a basis (method) for the transfer of ownership, but also in an agreement, is the need for the donor to obtain the consent of the donee to transfer the corresponding gift to him. All other qualities of a civil contract (contract-legal relationship and contract-document) do not exist in this case.

A gift agreement has a complex subject, consisting of the actions of the donor: transfer of a gift, release from an obligation, which are called an object of the first kind or a legal object, as well as the property itself (things, rights, obligations), which is usually called an object of the second kind or material (in relation to to a thing) object.

Any persons recognized as subjects can act as a donor and donee under a gift agreement civil law: citizens (individuals), organizations (legal entities), as well as the state (Russian Federation, constituent entities of the Russian Federation) and municipalities. The peculiarity of the gift agreement in relation to its subject composition is that in relation to some subjects of civil law, the legislation establishes prohibitions and restrictions on participation in relations related to donation.

For example, the legislator prohibits donations between commercial organizations, which is completely justified. The prohibition of such donations was established on the basis that gratuitous property relations between organizations, the very existence of which is generated by the goal of making a profit, are, as a rule, abnormal and can be used to the detriment of the interests of their creditors and the state.

The requirements for the form of a gift agreement depend on the type of gift agreement and the object of the gift.

Regarding the content of the contract, we can say that the contract of promise of gift gives rise to a unilateral obligation of the donor to transfer the object of the gift to the donee and the right of the donee, corresponding to this obligation, to demand from the donor the transfer of the gift. A feature of the gift agreement is that, as an exception to the general provision on the inadmissibility of unilateral termination of a civil obligation, except for cases established by law (Article 310 of the Civil Code), the parties to the gift agreement are endowed with broad rights to unilaterally terminate the obligation arising from the gift agreement.

As for the gift agreement made by transferring the donated property to the donee, the contractual nature of such a gift is expressed only in the fact that the transfer of the donated property to the donee requires the latter’s consent to accept the gift.

Another specific feature of the gift agreement, which distinguishes it from all other civil law agreements, is the opportunity provided to the donor and his heirs to cancel the donation.

The key issue is the need (or lack thereof) to accept a donation or consent of the donee to the gratuitous acquisition of property. Moreover, this issue is of decisive importance in relation only to a donation made not on the basis of a preliminary agreement of the parties, but by direct transfer of the gift to the donee.

Donation in cases where it is made in the form of a gift obligation, i.e. the gratuitous issuance by the donor of a written obligation to alienate his property in favor of the donee cannot be valid without the acceptance or consent of the donee because the gift obligation, like contracts in general, are always based on the agreement of the parties. Acceptance of a gift or consent of the donee is prerequisite the validity of any donation agreement, since such a requirement follows from the essence of the donation itself.

At the same time, donation is an exception to the actions characteristic of a person, aimed primarily at the acquisition, and not at the gratuitous alienation of property, therefore, donation is not made without special motives, which may be completely disinterested (gratitude, love, etc.), or may be aimed at achieving various benefits and even immoral goals (a means of bribery, temptation, etc.).

But the main thing is that between the donor and the donee there must exist certain purely personal relations of a moral nature, which usually continue after the donation is made, regardless of the legal consequences arising from this transaction.

In some cases, giving is limited or prohibited by law. Article 575 of the Civil Code distinguishes between ordinary gifts, the cost of which does not exceed 5 minimum wages, and more expensive ones. Gifts whose value is more than 5 minimum wages are not allowed: 1) on behalf of minors and citizens recognized as incompetent by their legal representatives; 2) employees of medical, educational and other social institutions, citizens receiving treatment, support or education there, spouses and relatives of these citizens; 3) civil servants and employees of municipalities in connection with their official position or in connection with their performance official duties; 4) between commercial organizations.

The issue of prohibiting gifts to civil servants in connection with their official position or in connection with the performance of their official duties is resolved in the Federal Law of July 27, 2004 “On the State Civil Service of the Russian Federation”. According to Art. 17 of the Law, a civil servant does not have the right to receive remuneration from individuals and legal entities (gifts, monetary remuneration, loans, services, payment for entertainment, recreation, travel expenses and other remuneration) related to the performance of job responsibilities. Therefore, the ban also applies to ordinary gifts. Civil servants have the right to accept gifts not related to the performance of their official duties.

According to the current civil law in Russia, a gift agreement does not contain such a concept as termination of a gift agreement. Instead, there is the concept of “cancellation of donation”, when the donor has the right to cancel the donation in certain cases or to invalidate the donation agreement. However, the term “termination of a gift agreement” is quite often used in legal practice.

A distinctive feature of a gift agreement is its voluntariness; the law does not provide for the possibility of obliging a person to enter into such an agreement.

Let's consider an example from judicial practice.

The decision of the Alekseevsky District Court was approved settlement agreement, according to which N. abandons the claim, and M. undertakes to donate apartment No. 16 in building 94 on the street. Mayakovsky in the city of Alekseevka, which belongs to him by right of ownership.

In canceling the determination, the presidium indicated the following.

When approving the settlement agreement, the court proceeded from the fact and considered it established that the reached settlement agreement did not contradict the current legislation.

From the text of the settlement agreement it is clear that N. renounces his claims to M. and the administration of the Alekseevsky district, and M., in turn, undertakes to give the plaintiff the disputed apartment.

According to Art. 572 of the Civil Code of the Russian Federation, under a gift agreement, one party gratuitously transfers ownership or undertakes to transfer to the other party an item or property right to itself or to a third party.

From these provisions it can be seen that the distinctive feature of the gift agreement is its voluntariness, and therefore it is not possible to oblige M. to conclude such an agreement.

Article 39 of the Code of Civil Procedure of the Russian Federation provides that the court does not accept the plaintiff’s refusal of the claim, the recognition of the claim by the defendant and does not approve a settlement agreement between the parties if this is contrary to the law or violates the rights and legitimate interests of other persons.

Under such circumstances, the indication in the settlement agreement of M.’s obligation to conclude an apartment donation agreement contradicts the provisions of the Civil Code of the Russian Federation on donation.

The subject of the gift agreement is the only essential condition of this agreement. Current legislation does not distinguish different types of gift agreement depending on its subject. In particular, it did not receive special regulation at the level of the Civil Code of the Russian Federation within a separate paragraph or at least a separate article within the chapter regulating the gift of real estate.

According to clause 3 of Art. 575, donations to civil servants and municipal employees are prohibited in connection with their official position or in connection with the performance of their official duties. But these persons can receive ordinary gifts worth no more than five minimum wages. This civil law norm is not consistent with the law. If the donee is an official of the listed bodies, then receiving property or property benefits is qualified as receiving a bribe or commercial bribery, regardless of the size of the bribe (bribery), and the corresponding transaction is invalid. In order to avoid disagreements between civil and criminal legislation, changes should be made to paragraph 3 of Article 575, namely, gifts to officials and persons performing managerial functions in a commercial or other organization are prohibited, regardless of the type and value of the gift.

2.3 Agreement of exchange

In all the latest codifications of civil law that have taken place in the world (including in developed legal orders), in relation to the barter agreement, very clear trends are visible, aimed at: firstly, confirming the barter agreement along with the purchase and sale agreement; secondly, to expand the range of special rules intended to regulate the exchange agreement and thereby excluding the effect of the relevant rules governing the purchase and sale agreement.

The presence in the Civil Code of special rules relating exclusively to the barter agreement (albeit few in number) indicates that the legislator’s attitude to this agreement as an independent type of civil contractual obligations is not only a tribute to the centuries-old civil law tradition, but also the result of an understanding of the place of the agreement exchanges in the system of contractual regulation of civil legal relations, as well as the desire for detailed regulation of these legal relations, taking into account all their inherent features.

The independent nature of the barter agreement in the family of civil legal contracts presupposes the identification of certain characteristics inherent in this agreement that distinguish it from all other types of contractual obligations, including the purchase and sale agreement that is closest to the barter agreement. In this sense, the following main features of an exchange agreement can be named.

Firstly, an exchange agreement is one of the agreements aimed at the transfer of property (the same category also includes agreements of purchase and sale, donation, loan, rent, loan, lease and some others), and thus it differs from agreements for the execution works (for example, contracting and some others), for the provision of services (commission, assignment, agency, transport and forwarding services and some others) and from founding agreements (for example, a simple partnership).

Secondly, under an exchange agreement, the exchanged property is transferred to the ownership (and, in appropriate cases, to the economic management or operational management) of the counterparty. This feature makes it possible to distinguish an exchange agreement from those contracts for the transfer of property under which the property is transferred for possession and use or only for the use of the counterparty (lease, loan).

Thirdly, from others compensation contracts, under which, as under an exchange agreement, property is also transferred into the ownership of the counterparty (purchase - sale, loan), the exchange agreement differs in the nature of the consideration.

Under the loan agreement, the party who received a sum of money or a certain amount of property determined by generic characteristics must return to the lender the same amount of money or a corresponding amount of property. The consideration provided by the buyer under a contract for the purchase and sale of goods is the payment of its price (i.e., a certain amount of money constituting the cost of the goods).

As for the barter agreement, its parties exchange one product for another. Under an exchange agreement, in principle, both the return of property similar to that received and the payment of its value are excluded, as is the case, respectively, in a loan agreement and in a purchase and sale agreement. This feature (exchange of goods) is a feature of the subject of the exchange agreement and is an indisputable criterion for distinguishing it as an independent type of civil contractual obligations.

The practice of arbitration courts does not classify as an exchange agreement bilateral transactions involving the exchange of goods for services of equivalent value, as well as an agreement under which goods are transferred in exchange for the assignment of the right to claim property from a third party.

Therefore, the rules of Ch. 31 of the Civil Code are applicable to the exchange of residential premises owned by the parties. Exchange of residential premises provided under the contract social hiring, is a mutual transfer of obligatory rights and obligations, and not an exchange, has significant features and is determined by the norms of the Housing Code (Articles 72, 73).

Exchange commercial transactions also called barter (barter transactions). However, this term is usually used in relation to foreign trade exchange transactions, the subject of which can also be works, services and objects intellectual property.

Judicial practice shows that, despite the apparent simplicity of the design of an exchange agreement, intractable problems often arise when considering disputes arising from it. Answers to many questions related to this institution are provided by the Review of the practice of resolving disputes related to the barter agreement (information letter of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002 N 69).

The question remains open about the ability of the creditor, in the event of forced confiscation of a thing from the debtor, to demand compensation for losses caused by the delay in execution. Based on general rules Art. 393 and 15 of the Civil Code of the Russian Federation, the creditor, apparently, should not be deprived of such a right.

The LLC filed a claim with the arbitration court against the JSC to collect a penalty for failure to comply with the terms of the barter agreement, to recover losses caused by the short delivery of goods, and to oblige the latter to fulfill the obligation in kind.

According to the concluded exchange agreement, LLC supplied JSC diesel fuel, and the latter was obliged to supply wheat in the agreed quantity. JSC supplied wheat in a smaller volume within the period established by the exchange agreement. The arbitration court satisfied the claims in full, collecting penalties and losses from the defendant and obliging the JSC to supply the LLC with the undelivered amount of wheat. The defendant appealed the court's decision regarding the obligation to supply wheat, citing the fact that he had already suffered liability for violating the terms of the contract in the form of penalties and compensation for losses.

The court's decision was upheld on the basis that the defendant did not fulfill its contractual obligations, even though it had the opportunity to supply wheat to the plaintiff in full. Judgment to fulfill an obligation in kind as a method of protecting civil rights is used to force the debtor to perform actions that he must perform by virtue of the obligation binding the parties. According to Art. 396 of the Civil Code of the Russian Federation, payment of a penalty and compensation for losses in the event of improper fulfillment of an obligation does not relieve the debtor from fulfilling the obligation in kind. Since the defendant did not fulfill the obligation under the barter agreement in full, the plaintiff’s demand for fulfillment of the obligation in kind was reasonably satisfied by the arbitration court.

Clause 1 of Art. 396 of the Civil Code of the Russian Federation presupposes the continued need, in case of improper performance, to fulfill the obligation in kind, despite the payment of a penalty and compensation for losses. In contrast, in case of non-fulfillment, the opposite presumption applies: in favor of the fact that compensation for losses and payment of a penalty for violation release the debtor from the obligation in kind (clause 2 of Article 396 of the Civil Code of the Russian Federation).

An interesting question is about the relationship between the concepts of “failure to fulfill an obligation” and “improper fulfillment of an obligation,” which are not legally defined in law. An additional criterion, which is a necessary condition satisfaction of the demand for forced transfer, which was brought by the plaintiff, is evidence of the actual availability of the goods by the defendant.

The LLP filed a claim with the arbitration court against joint stock company on forcing the fulfillment of an obligation in kind - the transfer into the ownership of the plaintiff of mustard seeds in the amount of 548.1 tons. The court decision was upheld appellate authority, these claims were satisfied. The Presidium of the Supreme Arbitration Court of the Russian Federation canceled the proceedings in the case judicial acts and sent the case for a new consideration, pointing out, among other things, the following circumstances. The court of first instance made a decision to force the JSC to fulfill its obligation to transfer mustard seeds to the LLP in the amount of 548.1 tons based on incompletely examined case materials. The court did not examine the question of whether the seller had a real opportunity to fulfill this obligation. Meanwhile, this was essential for making an informed decision. When reconsidering the case, the court must eliminate these gaps.

The need to clarify the actual ability of the defendant to fulfill the obligation in kind is quite natural - if the defendant actually does not have this product in sufficient quantity, then the court decision will be unenforceable. The problem that arises in a particular process lies, in our opinion, in the evidentiary sphere, namely: on which party should the court place the burden of proving the existence of the goods to be transferred.

It is obvious that placing the burden of proof of this circumstance on the plaintiff would serve in many ways as an insurmountable obstacle to filing a claim. In this regard, it would be advisable to enshrine in law the defendant’s obligation to provide evidence of the absence of this product. Failure to provide such evidence should make it impossible for the defendant to refer to the actual absence of goods as a basis for not applying liability for failure to comply with a court decision. In the absence of these rules, the plaintiff may use the legal mechanism provided for in Art. 66 Arbitration Procedure Code of the Russian Federation.

2.4 Annuity and life support with dependents

Of all the features indicated in the legal definition of annuity given by the Civil Code, highest value undoubtedly has its purpose: the provision of ownership of property in exchange for a periodically paid sum of money intended to ensure maintenance.

S.A. Khokhlov saw the independence of the corresponding agreement in the fact that, unlike the purchase and sale, it assumed a different consideration. Developing this idea, V.S. He rightly emphasizes that “under a purchase and sale agreement, the buyer pays for the goods (including those sold by installments). Modern civil legislation contains the following legal definition of a gift agreement: a gift agreement is an agreement under which one party (the donor) transfers for free or undertakes to transfer to the other party (the donee) a thing into ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release her from a property obligation to himself or to a third party (clause 1 of Article 572 of the Civil Code).

Similarly, under a barter agreement, the mutual alienation of goods by the parties is carried out for a certain, pre-assessed compensation. Under an annuity agreement, the amount of payments due to the recipient is uncertain, since the obligation to pay the annuity is valid either indefinitely (permanent annuity) or for the life of the recipient (lifetime annuity). " M.I. Baru expressed the peculiarity of this agreement very accurately. He saw the difference between the contracts of purchase and sale and lifelong maintenance with dependency in what each of these contracts was aimed at. For one of them it was the receipt of property in ownership, and for the other it was financial assistance to the party by its counterparty precisely for the specified reason. Please note that the purchase and sale agreement ends with the transfer of ownership, and the lifelong maintenance agreement is just beginning.

The annuity agreement has a number of legal features that reflect the essence and purpose of this agreement, primarily the need for its legal stability and providing the annuity recipient - the citizen - with reliable legal protection.

Firstly, the annuity agreement must be concluded in notarial form (Article 584 of the Civil Code), which contributes to the clarity and clarity of its terms.

Secondly, it must contain a provision on interim measures. In relation to real estate transferred for rent payment, a legal pledge is provided in favor of the rent recipient, and when transferring movable property, the contract must include a provision for securing or insuring the liability of the rent payer (Article 587 of the Civil Code).

In addition to these rules, Art. 586 of the Civil Code introduces the encumbrance of rent on real estate transferred for payment of rent. In the event of alienation of such property, the payer’s obligations are transferred to the acquirer of the property. In this case, the person who transferred the rent-encumbered property into the ownership of another person does not leave the rental relationship, but bears subsidiary liability for the requirements of the rent recipient (clause 2 of Article 586 of the Civil Code).

Finally, thirdly, the recipient has the right to buy back the annuity (i.e. terminate the contract early) if it is in his interests or the annuity payer violates his obligations, and to buy back the annuity on conditions favorable for the recipient (Articles 593, 594 of the Civil Code) .

Legal publications note such a feature of an annuity agreement as its risky (aleatory) nature, since the volume of payments due to the annuity recipient is uncertain, as is the timing of their payment (indefiniteness or lifetime). However, the aleatory character of an annuity contract differs significantly from such typically risky contracts as games and bets (Chapter 58 of the Civil Code), when the result of transactions is only assumed and unlikely.

At first glance, the similar Annuity and Lifetime Maintenance with Dependency agreements have fundamental differences. The result of this difference is that the party often goes to court with demands for termination of the contract, the return of the apartment received into ownership, as well as claims for failure to fulfill obligations assumed under the contract.

Similar documents

Concept, elements of a sales contract. Classification of sales and purchase agreements. Characteristics of some types of sales contracts. Features of retail purchase and sale contracts, supply of goods for government needs, purchase and sale of enterprises.

thesis, added 12/01/2014


The concept of annuity agreements, lifelong maintenance agreement with dependents. Lease and rental agreements. Residential rental agreements. Features of lease and rental agreements involving public legal entities. Renting residential premises as a type of rental.

course work, added 11/16/2008


Features and differences of contracts of exchange, rent and gift. Legislative regulation of the contract. Subjects and subject of the contract. Exchange of goods under contract. Refusal of the recipient to accept the gift. Prohibition of donation. Cancellation of donation. Gift restrictions. Donations.

abstract, added 02/24/2009


Legal regulation of the purchase and sale agreement land plots. The concept and content of land purchase and sale agreements. Practices in considering disputes regarding invalidation of lease agreements, purchase and sale of land plots.

abstract, added 11/27/2014


Concept and general characteristics rent agreements, the possibility of alienation of property in exchange for providing the owner with cash support. Features of contracts of permanent and life annuity. Features of a lifelong maintenance agreement with dependents.

course work, added 05/24/2017


Legal essence and place of a lifelong maintenance agreement with dependents among annuity contracts. Rights, obligations, responsibilities of the parties to the contract. Problems and ways to improve the contractual structure of lifelong maintenance with dependents.

course work, added 11/23/2015


General provisions on purchase and sale. Subject and forms of the purchase and sale agreement. Content. Features of retail sales contracts. Elements of the contract. Types of retail sales contracts. Exercising protection under a purchase and sale agreement.

thesis, added 11/02/2003


International legal regulation of purchase and sale relations. The concept of the international purchase and sale of goods as the most common legal form of a foreign trade transaction. Features of the conditions and main types of sales contracts, their meaning.

test, added 02/14/2011


List of objects classified as real estate according to the law. Features of the legal regime of real estate transactions. Contents of the real estate purchase and sale agreement, exchange and gift agreement. Lease and agreement for free use of property.

thesis, added 08/10/2011


General concept real estate. Concept, essential conditions, form, subjects and content of the real estate purchase and sale agreement. State registration and its significance. Legal Features various types real estate purchase and sale agreements.

For the form of transactions for the alienation of real estate (purchase and sale, exchange), Article 550 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) establishes a special requirement - they are made in writing - simple or notarial, and are subject to state registration.

At the same time, transactions are mandatory in cases specified in the law, as well as in cases provided for by agreement of the parties, at least by law this form was not required for transactions of this type.

Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to and transactions with it” (Articles 24, 30) established a mandatory notarial form for transactions:

— on alienation of shares in the right of common ownership of real estate, including alienation by all participants shared ownership their shares in one transaction;

- for the alienation of real estate belonging to a minor citizen or a citizen recognized as having limited legal capacity, they are subject to notarization;

— as well as for transactions related to the disposal of real estate under the terms of guardianship.

Notarization of a transaction means checking the legality of the transaction, including whether each party has the right to complete it, which is carried out by a notary or official who have the right to do this, in the manner prescribed by the law on notaries and notarial activities.

When notarizing a transaction, in particular an agreement, he is guided by the rules provided for by the Fundamentals of the Legislation of the Russian Federation on Notaries (hereinafter referred to as the Fundamentals), in particular, he identifies the persons who have applied to him for certification of the transaction, explains to the parties the meaning and significance of the draft transaction presented by them, checks whether its content corresponds to the actual intentions of the parties and does not contradict the requirements of the law (Articles 43, 54-56 of the Fundamentals).

When certifying transactions aimed at alienating property, the rights to which are subject to state registration (Article 8.1 of the Civil Code of the Russian Federation), the notary verifies the ownership of this property by the person alienating it, unless, in accordance with the transaction, at the time of its completion this property is still does not belong to this person.

In this case, the information necessary to certify the transaction, contained in the Unified State Register of Rights to Real Estate and Transactions with It, or information entered into the State Real Estate Cadastre, is requested by notaries independently and received within the established time limits. Federal laws dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”, dated July 24, 2007 No. 221-FZ “On the state real estate cadastre” deadlines.

Certification of contracts for the alienation of a residential building, apartment, cottage, garden house, garage, as well as a land plot is carried out at the location of the specified property.

Within the meaning of Article 48 of the Fundamentals, a notary certifies a transaction if it complies with the requirements of the law, and the documents submitted for its completion comply with the requirements of the law.

When drawing up a real estate purchase and sale agreement, you should pay attention to it and the features of its conclusion.

The contract for the sale of real estate must contain data that makes it possible to definitely identify the real estate to be transferred to the buyer under the contract, including data that determines the location of the real estate on the relevant land plot or as part of other real estate. In the absence of this data in the contract, the condition on the real estate to be transferred is considered not agreed upon by the parties, and the corresponding one is not considered concluded.

The contract for the sale of real estate must stipulate the price of this property.

If the contract does not contain a condition agreed upon in writing by the parties regarding the price of the real estate, the contract for its sale is considered not concluded. In this case, the rules for determining the price provided for in paragraph 3 of Article 424 of the Civil Code of the Russian Federation do not apply.

Unless otherwise provided by law or a contract for the sale of real estate, the price of a building, structure or other real estate located on a land plot established therein includes the price of the corresponding part of the land plot or the right to it transferred with this real estate.

In cases where the price of real estate in the contract for the sale of real estate is set per unit of its area or other indicator of its size, the total price of such real estate to be paid is determined based on the actual size of the real estate transferred to the buyer.

The transfer of real estate by the seller and its acceptance by the buyer is carried out according to a transfer deed or other transfer document signed by the parties.

Unless otherwise provided by law or contract, the seller's transfer of real estate to the buyer is considered completed after the delivery of this property to the buyer and the signing of the relevant transfer document by the parties.

Failure of one of the parties to sign a document on the transfer of real estate on the terms stipulated by the contract is considered a refusal, respectively, of the seller’s obligation to transfer the property, and the buyer’s refusal of the obligation to accept the property.

Acceptance by the buyer of real estate that does not comply with the terms of the contract for the sale of real estate, including in cases where such non-compliance is specified in the document on the transfer of real estate, is not a basis for releasing the seller from liability for improper performance of the contract.

In the event that the seller transfers to the buyer real estate that does not comply with the terms of the contract for the sale of real estate regarding its quality, the rules of Article 475 of the Civil Code of the Russian Federation are applied, with the exception of the provisions on the buyer’s right to demand the replacement of goods of inadequate quality with goods that comply with the contract.

Under a contract for the sale of a building, structure or other real estate, the buyer, simultaneously with the transfer of ownership of such real estate, is transferred the rights to the land plot occupied by such real estate and necessary for its use.

In the case where the seller is the owner of the land plot on which the property being sold is located, the buyer is transferred the ownership of the land plot occupied by such real estate and necessary for its use, unless otherwise provided by law.

The sale of real estate located on a land plot that does not belong to the seller by right of ownership is permitted without the consent of the owner of this plot, unless this contradicts the conditions of use of such a plot established by law or agreement.

When selling such real estate, the buyer acquires the right to use the corresponding land plot under the same conditions as the seller of the real estate.

An essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which persons who, in accordance with the law, retain the right to use this residential premises after its acquisition by the buyer live, is a list of these persons indicating their rights to use the residential premises being sold.

Features of the purchase and sale of residential premises that meet the conditions for classification as economy class housing established by the authorized federal body executive power are determined by law.

The specifics of the purchase and sale of an enterprise are provided for in Articles 559-566 of the Civil Code of the Russian Federation.

It should also be taken into account that if a third party, a body of a legal entity or a government body or body is required to complete a transaction by force of law local government, the third party or the relevant body informs the person who requested consent or another person about his consent or refusal thereof. interested person within a reasonable time after receiving the application from the person requesting consent.

The preliminary consent to carry out a transaction must define the subject of the transaction to which consent is given. Upon subsequent consent (approval), the agreement to which consent has been given must be indicated.

Silence is not considered consent to complete a transaction, except in cases established by law (Article 157.1 of the Civil Code of the Russian Federation).

In order for one of the spouses to enter into a transaction for the alienation of real estate, which is the common property of the spouses, it is necessary to obtain the notarized consent of the other spouse (Article 35 of the Family Code of the Russian Federation).

When selling a share in the right of common ownership of real estate to an outsider, it is necessary to take into account that the seller of the share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share, indicating its price and other conditions under which he sells it.

A transaction for the sale of a share in the right of common ownership of real estate to an outsider can be notarized no earlier than one month from the date the seller notifies the remaining participants in the shared ownership of the share. If the notary establishes that the seller of the share has submitted documents confirming the refusal of the remaining participants in shared ownership to purchase his share, the transaction can be completed before the expiration of a month from the date the seller of the share notified the remaining participants in shared ownership.

The seller can notify about the sale of a share in the right of common shared ownership of real estate independently, as well as through a notary in the manner prescribed by Article 86 of the Fundamentals. When performing a notarial act of transmitting a seller’s notice within the framework of Article 86 of the Fundamentals, the notary does not verify the accuracy of the information provided by the applicant about the co-owner and the address to which the notice should be sent.

When certifying transactions for the alienation of real estate by a notary, a notary fee is charged, as well as a fee for the provision of legal and technical services. At the same time, the notarial fee for certifying transactions depends on whether certification of the transaction is mandatory by law or whether the notarial form of the transaction is optional.

For certification of a transaction for which the legislation of the Russian Federation does not provide for a mandatory notarial form, the notarial fee is charged by the notary in the amount established in accordance with the requirements of Article 22.1 of the Fundamentals. If the notarial form of the transaction is required, the notary charges a notarial fee in the amount and taking into account the specifics established by the Tax Code of the Russian Federation.

The notary fee established by the Fundamentals for certification of transactions the subject of which is the alienation of real estate is:

spouse, parents, children, grandchildren depending on the transaction amount:

up to 10,000,000 rubles inclusive - 3,000 rubles plus 0.2 percent of the valuation of real estate (transaction amount);

over 10,000,000 rubles - 23,000 rubles plus 0.1 percent of the transaction amount exceeding 10,000,000 rubles, but not more than 50,000 rubles;

to other persons depending on the transaction amount:

up to 1,000,000 rubles inclusive - 3,000 rubles plus 0.4 percent of the transaction amount;

over 1,000,000 rubles up to 10,000,000 rubles inclusive - 7,000 rubles plus 0.2 percent of the transaction amount exceeding 1,000,000 rubles;

over 10,000,000 rubles - 25,000 rubles plus 0.1 percent of the transaction amount exceeding 10,000,000 rubles, and in case of alienation of residential premises (apartments, rooms, residential buildings) and land plots occupied residential buildings, - no more than 100,000 rubles.

In the event that a transaction for the alienation of real estate is subject to mandatory notarization by force of law, the notary fee is charged by the notary in accordance with subparagraph 5 of paragraph 1 of Article 333.24 of the Tax Code of the Russian Federation, as for certification of other agreements, the subject of which is subject to assessment, if such certification is required in accordance with the legislation of the Russian Federation, and amounts to 0.5 percent of the contract amount, but not less than 300 rubles and not more than 20,000 rubles.

When certifying transactions the subject of which is the alienation of real estate or real estate having a cadastral value, if the assessment given to this real estate by the participants (parties) of the transaction is lower than its cadastral value, it is used to calculate the tariff cadastral value this real estate.

Alienation does not include the abandonment of ownership rights and the transfer of property for rent.Objects, things, cash, rights to securities may be alienated. Intellectual property objects and services do not fall into this category.

Methods of alienation of property:

• purchase and sale;
• donation;
• exchange;
• rent;
• court decision.

Items of intellectual property (works of art, science, literature, etc.) receive the status of goods that can be sold or donated only if copyright is registered on them. Alienation of these items is carried out after drawing up a written agreement, indicating the amount of remuneration and the procedure for payments.

Exclusive rights should be distinguished from personal and intellectual rights, since they are not involved in alienation transactions.

Voluntary alienation of property

Voluntary alienation of property can be carried out in the form of:

• sales. The transfer of property is carried out in accordance with the purchase and sale agreement;
• donations. The transfer of property is carried out in accordance with the gift agreement;
• exchange. It is drawn up in two sales contracts, since each of the participants acts simultaneously as a seller and a buyer. Only equal property can be exchanged; if one of the parties makes an additional payment, this amount is subject to tax;
• annuities. It falls under the definition of “alienation of property” if a lifelong annuity agreement has been signed with the owner of the property. Upon the death of the owner, the property becomes the property of the rent payer. Only individuals or non-profit organizations can act as a seller.

Forced alienation of property

Forced transfer of ownership is permissible only by court decision and is possible if:

• collection of obligations;
• expiration of the rental or lease agreement;
• paid or gratuitous seizure of property;
• seizure of the land plot on which the property is located;
• use of real estate for other purposes;
• needs of the municipality or state.

State alienation is possible on the terms of equivalent and preliminary compensation for the value of the property.

Alienation of property of minors

Children under 14 years of age are not allowed to participate in the transaction; therefore, their presence and signature are not required. Their official representatives: parents, guardians, and adoptive parents act on behalf of minors.

Minors (from 14 to 18 years old) must participate in the transaction and certify the documents with their own signature. The presence and consent of their legal representatives is required.

Greetings! In my opinion, laws are deliberately written so that no one except lawyers and notaries can understand them. How do you like this phrase “alienation of movable and immovable property located in the Russian Federation for compensation”?

When I encounter any legal text, I first translate it into “human” language. Sometimes this can only be done with the help of familiar lawyers. And even after such a “translation,” the meaning of the document often remains vague.

Therefore, today I decided to look into this issue of alienation of property. What does this term mean and who does it concern? And most importantly, what property and when can be alienated without the consent of the owner?

The term “alienation” is simply deciphered. When property or the right to it passes from one owner to another, lawyers call it “alienation.” If you were once the owner of an apartment or house, and then this property was given or sold to someone, “alienation of property” has occurred. And if, God forbid, the same property is sued by the bank for non-payment of the mortgage, “alienation” has also occurred.

Once again: alienation is when property or (the rights to it) is transferred from one owner to another (voluntarily or forcibly). The “alienator” can be individuals and legal entities, as well as government agencies (municipal or territorial).

What is not considered alienation by law?

• Transfer of property for temporary use (for example, if you rent out your apartment).
• Relinquishment of property rights (for example, refusal of inheritance).
• Destruction or loss of property or rights to it.
• Termination of property rights by court decision.

What property can be alienated?

Only objects or things (including money) and rights to something (to own securities, for example) can be alienated. Objects of intellectual property, as well as services/works, are not alienated.

Three categories of alienation objects

Real estate

As soon as the owner of an apartment, house or land plot changes, the property is considered “alienated”. Methods of alienation: purchase, sale, gift, exchange or rent. In case of forced expropriation, real estate can be seized from the owner by decision of a court or government agency.

Securities

Technically, the alienation of securities occurs in one of the following ways:

• Placement of registered securities (receipt entries are made on the accounts of the first owners in the depository or registrar).
• Placement of documentary bonds (receipt entries are made on securities accounts or certificates are issued to the first owners).

In essence, securities are alienable in the same way as real estate: they can be sold, donated, exchanged, or lost (as a result of confiscation, for example).

Intellectual copyright

Intellectual property is works of science, art and literature, databases, inventions, computer programs, know-how, industrial designs and much more. The one who owns the result intellectual activity, has the exclusive right to it. He can allow or prohibit others from using the “something” he has invented.

To obtain the “exclusive right to the result of intellectual activity”, it must be officially registered in government agency. Only after this the exclusive right receives the status of a “good” that can be sold, donated and exchanged.

An agreement on the alienation of an exclusive right is concluded in writing. It must specify the amount and procedure for payment of remuneration (by the way, this can also be a percentage deduction from income, and not just a one-time payment). Except exclusive rights, there are also intellectual and personal non-property. Such rights are not included in alienation transactions!

Voluntary and forced alienation

Voluntary alienation of property

Sale. There are two parties involved in a transaction: the seller and the buyer. The transfer of property from one owner to another is formalized by a purchase and sale agreement. Alienation is possible only after state registration of property owners!

Giving. In this case, the property changes its “owner” free of charge under a gift agreement. If you alienate something in favor of a relative, the transaction is exempt from taxation. The “stranger” will have to pay 13% of the cost of the “gift” to the budget.

In legal practice, it happens that a gift is a forced alienation. The owner is forced to draw up documents against his will. And after he signs the contract, it is almost impossible to prove the fact of coercion in court.

Exchange. The exchange is formalized by two sales and purchase agreements. Each participant in the transaction acts as both a seller and a buyer. By law, only property of equal value can be exchanged. If the exchange involves an additional payment, then this amount is subject to personal income tax.

Rent. Oddly enough, rent also refers to alienation. You can sign a life annuity agreement with the seller of the property. Until the end of his life, you undertake to provide the maintenance of the current owner of the apartment. And only after his death the property will become your property.

In this case, the seller can only be individuals or non-profit organizations!

Forced alienation of property

Such alienation is usually applied by a court decision on confiscation or requisition of property. For example, when the owner cannot pay child support or debt. Or when the transfer of rights is dictated by state necessity (extraordinary circumstances: large-scale disasters, public danger). This, theoretically, also includes the confiscation of property of corrupt officials if the owner is unable to confirm that he acquired it legally.

The law provides for situations when a Russian can be forcibly deprived of ownership of real estate:

• Collection of real estate according to the owner’s obligations (by law, by court or by contract).
• In connection with the end of a rental or lease agreement.
• If the land plot on which the property stands is seized.
• Alienation for the needs of the municipality or the state.
• Alienation due to requisition or confiscation.
• Termination of rights if the property is used for other purposes.

Type of forced alienation: state. For example, when a land plot falls into a state development zone. This is possible only subject to equivalent and preliminary compensation for the value of the property.

Alienation of real estate in favor of the state is possible:

• By decision of executive bodies (municipal, regional or federal).
• With full reimbursement of the cost of the object.
• With the consent of the property owners.
• When “good news” is announced to the owner at least a year before the actual alienation.
• By a court decision, where the government agency will prove its case (in the case where the owner of the property does not agree to voluntarily part with it).

Alienation of leased property

SMEs have a pre-emptive right to purchase leased property, which is in the state ownership of the Russian Federation.

This is possible if two conditions are met:

1. Tenants have no rent arrears.
2. The property is rented for two or more years under a contract.

In Moscow, the redemption service can be ordered free of charge on the official website of the Moscow Mayor (https://www.mos.ru).

Alienation of a share in an apartment

The procedure for alienation of real estate is easy and quick when it has one and only owner. If you solely own a garage, a plot of land or an apartment in a new building, you can sell or donate all of this without consulting anyone.

But such an “ideal” situation rarely develops. Much more often, after moving into an apartment or house, the property has several owners. This form of ownership is called common share. The parties may be close relatives. And each of them will own their own share of the real estate (say, one third).

So, how to sell a share of an apartment, taking into account the features of such transactions:

1. Determine the market price of your share.
2. You offer the other owners of the apartment to buy it. Owners of shared real estate have a priority right to redemption!
3. You draw up a notice (the form of the document can be any) about the sale of your share. There is no need to have the notice certified by a notary. The document can be given to other participants in person, sent by mail (registered mail) or transferred through a notary. The last option is used when the owners of other shares avoid receiving notification.
4. Participants are given one month to make a decision. If, after the expiration of the period, they refused to purchase (or simply did not give any response), the share can be sold to third parties.

It is advisable to certify in writing the refusal of all owners to purchase an apartment from a notary. The best insurance against future troubles is their refusal to purchase.
The fact is that within three months after the purchase and sale transaction, the co-owners can challenge it. And if all the rules of civil law are not followed, the court may well declare the sale of the share invalid. And if the refusal is received, it means that you can sell your share earlier than in a month.

Since 2017, all transactions with real estate shares must go through a notary (not only sales, but also donations, exchanges, inheritances)!

What documents are needed to alienate property?

Most foreclosure transactions involve the sale or transfer of real estate. Other options for alienation (donation or confiscation) are much less common in practice.

List of seller documents for drawing up an alienation agreement (sale of an apartment):

• Title document (which confirms his right to own real estate). Purchase options:
  • bought (purchase and sale agreement);
  • received as a gift or exchanged (contract of gift or exchange);
  • privatized (privatization document);
  • received as an inheritance (certificate of right to inheritance).

• Title documents (prove that the property belongs to this particular seller). From January 1, 2017 state registration real estate is confirmed by an extract from the Unified State Register of Real Estate. Another important point is included there: that there are no encumbrances or liens on the apartment.
• Seller's ID (passport).
• A copy of the financial personal account and a certificate of absence of debt on utility bills.
• A signed purchase and sale agreement (it is this that, from a legal point of view, fixes the process of alienation of property).
• The fact of transfer of rights is confirmed only by official state registration of rights in the register. Where do you get permission? After the purchase and sale of real estate, you need to order a new extract from the Unified State Register of Real Estate. You will have to pay a state duty and tax on the sale of real estate (if the apartment was owned for less than three or five years, it depends on the date of purchase).
• Consent of the spouse to the sale of the apartment or share in it (if the apartment was purchased during marriage). All property owners must agree to the sale! You will also need the consent of the guardianship authorities if minors are registered in the apartment.

Alienation of property of a minor

If the child is under 14 years old, then legal representatives (parents, guardians, adoptive parents, representatives of guardianship authorities) act on his behalf. The minor owner does not participate in the transaction itself (his presence and personal signature are not required).

If the child is between 14 and 18 years old, he participates in the transaction and puts his signature on the documents. But only in the presence and with the consent of legal representatives. It is not possible to alienate the property of a minor in all cases (even with his consent). For example, if an apartment is for sale, then in return you can buy either better or equivalent housing.

Conclusion

Alienation of property is the same purchase and sale, gift or, God forbid, confiscation. The definition of the term is simple and logical: alienation is when property or the right to it passes from the old owner to the new owner (voluntarily or forcibly, for money or free of charge).

154. This section contains information about real estate, vehicles and securities (including shares in the authorized capital of the company) alienated during the reporting period as a result of a gratuitous transaction, as well as, for example, information about the disposal of a car.

155. A gratuitous transaction is recognized as a transaction in which one party (an employee, his spouse, a minor child) undertakes to provide something to the other party without receiving payment or other counter-provision from her.

156. A gift agreement can be classified as a gratuitous transaction.

157. Each object of a gratuitous transaction is indicated separately.

158. In the lines " Land plots" and "Other real estate" it is recommended to indicate the type of real estate (in relation to land plots, you should be guided by paragraph 76 of these Methodological recommendations), location (address) in accordance with paragraphs 85-86 of these Methodological Recommendations, area (sq. m) in accordance with paragraph 87 of these Methodological Recommendations.

160. In the line “Securities” it is recommended to indicate the type of security, the person who issued the security, the total number of securities alienated as a result of a gratuitous transaction, as well as the nominal value in rubles, and if the value is expressed in foreign currency, then in rubles according to exchange rate of the Bank of Russia on the date of the gratuitous transaction.

For participation interests in authorized capital commercial organizations and funds, it is recommended to indicate the name and legal form of the organization in accordance with paragraph 128 of these Guidelines, the location of the organization (address), authorized capital in accordance with paragraph 129 of these Methodological Recommendations, participation shares in accordance with paragraph 130 of these Methodological Recommendations.

161. In the column “Acquirer of property in a transaction” in the case of a gratuitous transaction with an individual, his surname, name and patronymic (in the nominative case) are indicated in full, without abbreviations in accordance with the identity document, as well as the series and number of the passport. If information is submitted in relation to a minor child under 14 years of age, instead of a passport, the child’s last name, first name, patronymic (in the nominative case), as well as the series, number of the birth certificate, date of issue and the authority that issued this certificate are indicated. The current address of the place of registration is also indicated individual or the address specified in the contract.

In the case of a free transaction with legal entity This column indicates the name, individual taxpayer number and main state registration number legal entity.

162. In the column “Grounds for alienation of property” the grounds for termination of ownership rights (name and details (date, number) of the relevant agreement or act).