More than 90% of families use maternity capital to improve their living conditions. But this is also housing for many participants programs they want to exchange for a more comfortable one - larger in size or located in a more convenient area. We answer the questions:how to sell an apartment purchased with maternity capital, is this possible, how to avoid risks and difficulties and complete the transaction as quickly as possible.

You can sell an apartment purchased with maternity capital

The legislation of the Russian Federation does not prohibit the sale of real estate purchased with maternity capital. Such real estate transactions are regulated by:

▪ Federal Law “On Additional Measures of State Support for Families with Children” - reveals the intricacies of handling maternity capital;

▪ Articles of the Civil Code of the Russian Federation No. 28, 36, 37, 454, 455, 456 - talk about the responsibilities of parents to their children, the rules of transactions with the child’s property and the general rules of purchase and sale.

According to these laws, parents or guardians must take care of providing minor children with everything they need, live with the children and give them a share in an apartment or house. The most important thing is not to violate the rights of the child, which are monitored by the guardianship authorities. Any procedure requires written permission from the guardianship authorities.

If children in the family have reached 18 years of age, only their written consent certified by a notary is required.

Conditions and featuressales of housing purchased with capital

🔹 The apartment you are selling must be in common ownership of the whole family.

🔹 If you bought an apartment using borrowed funds and registered it only in the name of the mother or father of the children, before selling it you need to register it as common property. This procedure is called a notarial duty, and you will have 6 months to complete it.

🔹 If the children are adults, their consent is needed, if not, the authority guardianship and guardianship.

🔹 Children should receive the same or larger shares from the new housing - smaller shares are allowed to receive only if living conditions significantly improve.

🔹 Approval from the guardianship and trusteeship authorities, the Pension Fund and, in the case of a mortgage, from the bank is required.

🔹 It is necessary to prepare a new living space in advance - with equal or better conditions, a deposit and registration in Rosreestr.

🔹 Prove to the guardianship council that you will not infringe on the rights of children - you will ensure the same shares, and living conditions will not worsen.

🔹 Ownership is divided among all members families , and parents act only in the interests of their children - the state strictly controls all processes of real estate purchase and sale transactions.

🔹 Parents' divorce will not affect the change in the share for children.

🔹 Anyone living and registered in an apartment has the right to a share in the new home after the sale.

🔹 If the apartment has been owned for less than 3 years or less than 5 years when purchased after January 1, 2016, you must pay tax for it.

🔹 It is important to maintain the level of housing conditions when replacing housing purchased with maternity capital, but it is possible to purchase new housing with a smaller area - for example, if one of the children needs special expensive treatment or the parents receive a smaller share in the new housing in favor of equal shares for the children.

Sales terms

The transaction itself can be completed at any time after purchasing an apartment using maternity capital. The main thing is to get permission . Without permission to sell the property of minors, the notary will not certify the transaction, and Rosreestr will not register the transfer of ownership. After receiving an extract from the Unified State Register of Real Estate for the purchased property, you must submit it to the guardianship authorities within 30 days after registration. If the transaction could not be completed, you will have to obtain a new permit.

Do I need to pay tax on the sale of an apartment?

When not needed.According to Article 217.1 of the Tax Code of the Russian Federation, if you have owned the property for more than 3–5 years, depending on the date of acquisition. The seller does not pay tax and does not submit a 3-NDFL declaration.

There are options when tax does not need to be paid when conducting a transaction in a single tax period or if the family did not use a tax deduction. However, each case is individual - here it is better to consult a tax consultant so as not to make a mistake.

When to pay.Sales tax must be paid if the apartment has been owned by the family for less than 3 years, or less than 5 years when registering ownership after January 1, 2016.

How to calculate the tenure of real estate.The countdown must be carried out from the date of ownership according to the USRN extract or from the certificate of state registration of rights. They count not in years, but in months: 3 years - 36 months, 5 years - 60 months.

How to calculate tax

You bought an apartment before January 1, 2016

If the ownership period does not reach 3 years, two methods of taxation when selling it will suit you.

💰 sale price under the alienation agreement minus 1,000,000 rubles of property tax deduction, if applicable;

💰 sale price under the alienation agreement minus the documented purchase price of the apartment.

In both cases, you need to submit a tax deduction return yourself, because the tax office does not provide such a procedure by default. This option does not take into account the cadastral value of housing.

You bought an apartment after January 1, 2016

If the sale agreement specifies an amount of more than 70% of the cadastral value, you can pay the tax in the same two ways. Here the cadastral value is taken into account as of January 1 of the year in which the transfer of ownership to the buyer is registered.

Example 1.You bought an apartment 3 years ago in 2016 for 3,000,000 rubles and are selling it in 2019 for 5,000,000 rubles. The cadastral price of the apartment is 3,500,000 rubles, and 70% of this amount is 2,450,000 rubles. The sale price of 5 million rubles is more than 70% of the cadastral value of 3.5 million. Select the tax base:

• You indicate that you are selling an apartment under a sales contract for 5 million rubles and this price is higher than 70% of the cadastral value. The tax will be 13% of (5,000,000 - 1,000,000 tax deduction). That is, 13% from 4,000,000 = 520,000 rubles.
• Instead of a tax deduction, you use the difference between the sale and purchase price: 5,000,000 - 3,000,000 = 2,000,000. The tax will be 13% of 2 million rubles = 260,000 rubles.

Example 2.Having bought an apartment 3 years ago in 2016 for 3 million rubles, you sell it in 2019 also for 3 million rubles. The cadastral value of real estate for 2019 is 3.5 million, and 70% of the amount is 2.45 million. The sale price of 3,000,000 exceeds 70% of the cadastral price. Choose how to pay tax:

• We indicate that, according to the contract, the apartment is sold for 3,000,000 rubles, which is higher than 70% of the cadastral value - a tax of 13% on the amount with a tax deduction of 1,000,000. This is 13% of 2,000,000 = 260,000 rubles.
• We do not use a tax deduction, but subtract the purchase amount from the sale price of the apartment: 3,000,000 - 3,000,000 = 0 tax rubles.

The sale agreement specifies an amount less than 70% of the cadastral value.The cadastral value is taken into account as of January 1 of the year in which the transfer of ownership to the buyer was registered. Calculate your tax using the most appropriate method of your choice:

▪ subtract from 70% of the cadastral value the property tax of 1,000,000 rubles, if applicable;

▪ subtract the documented purchase price of this apartment from 70% of the cadastral value.

For each option, you need to file a tax return yourself.

Example 1.You bought an apartment 4 years ago in 2016 for 2,000,000 rubles, and are selling it in 2020 for 3,000,000 rubles. Cadastral value - 3,500,000 rubles, 70% - 2,450,000 rubles. The sale price in the 2020 contract is less than 70% of the cadastral value. You choose a tax option:

• It is necessary to subtract 70% of the cadastral value of 2,450,000 rubles, a tax deduction of 1,000,000 tax deduction. The tax is 13% of 1,450,000 rubles = 188,500.
• Without using a tax deduction, we subtract the purchase price of an apartment of 2 million rubles from 70% of the cadastral price of 2.45 million rubles. The tax will be 13% of 450,000 rubles = 58,500 rubles.

Example 2.You inherited an apartment in 2016 from a close relative and sell it for 4,000,000 rubles in 2020. Since the minimum holding period to exempt real estate from tax is 3 years, you do not pay tax

Selling an apartment with maternity capital - step-by-step instructions

Step 1. Take care of replacing an equivalent share for children or financial compensation

Equal shares in new housing.To accomplish this condition , agree on a one-time transaction for the sale of your old home and the purchase of a new apartment or house. You can also give your children shares in the apartment of a close relative.

In case of purchase, make a deposit, indicate the children as the owners in the purchase agreement, specifying the shares that will belong to them. Sign preliminary agreements for sale and purchase, or a preliminary agreement for sale and draw up a template for the main purchase and sale agreement for the purchase for approval by the guardianship and trusteeship authorities.

In case of donation, sign a preliminary sales agreement and prepare a donation agreement template for approval by the guardianship and trusteeship authorities.

Agree on the transaction for the sale of old housing and the purchase of a new apartment or house with the guardianship and trusteeship authorities.

Financial compensation.With the preliminary approval of the guardianship authorities, instead of a share, children are allowed to receive monetary compensation in the amount of the value of the sold share at the time of the transaction. To do this, you need to provide the guardianship and trusteeship authorities with an application and a certificate about the value of the children's shares.

When the guardianship and trusteeship authority approves the application, open bank accounts in the name of the children and deposit money there. Keep facilities You can use a regular savings account or with interest accrual to:

❗ child disposed of them independently at the age of 18;

❗ parents disposed of them in the interests of the child at a time when he was not yet 18 years old - for example, they purchased a new home.

Remember that any disposal of property of minors must be approved by the guardianship authorities.

Shares for children in relatives' apartment.If you are not planning to buy a new apartment, the law allows you to allocate shares to children in the living space of your closest relatives - for example, from grandparents.

In some regions, it is allowed to allocate shares of smaller quadrature if:

✔ relatives’ apartment is more than sold;

✔ there is a big difference in the cost of housing - for example, depending on the area, infrastructure, and the condition of the house.

But such nuances should be discussed in advance with lawyers and take into account the practice of your particular region of residence.

Step 2. Prepare documents

To obtain permission from the guardianship authorities and register the transfer of rights in Rosreestr, you need to prepare and collect a package of documents.

List of documents.You need to take the documents to the representative office of the guardianship authorities or to the MFC. At the representative office, a specialist will be able to certify copies of documents based on the originals submitted:

📂 Application from both parents or legal representatives of the child to the guardianship authorities. If there is only one legal representative, you will need to attach evidence of this to the application. For example, a death certificate, a document declaring one of the parents missing. If one of the representatives simply cannot come to the guardianship department in person, you need to provide a notarized consent to sell the home.

📂 Passport of a citizen of the Russian Federation of the child, if he is already 14, and a birth certificate. If the child is under 14 years old, all you need is a birth certificate.

📂 Passports or other identification documents of legal
representatives of the minor - parents or guardians.

📂 Documents for real estate (sale and purchase) - cadastral and technical passports, certificate of ownership, extract from the Unified State Register of Real Estate and more.

📂 Document of title (basis document for a counter transaction): contract of purchase and sale, privatization, gift, exchange, certificate of right to inheritance by law or will, agreement of participation in shared construction, assignment of rights of claims under an agreement of participation in shared construction, court decision on recognition of property rights.

📂 Permission from the bank if the apartment has a mortgage.

📂 Permission from the Pension Fund and a certificate of family capital, if the buyer of your apartment also uses maternity capital funds.

📂 Your family capital certificate used when purchasing an apartment.

📂 Consent of the spouse to the transaction.

📂Consent of an adult child who has a share in the apartment.

📂 Insurance on the apartment, if available.

📂 Preliminary purchase and sale agreements.

📂 Certificate of construction readiness of the object by at least 70% with participation in shared construction.

The package of documents varies depending on the terms of sale and purchase. In order not to forget the necessary papers, consult with a lawyer - this will help reduce the processing time of the application and avoid refusal.

Mandatory clauses of the contract.Check that the purchase and sale agreement includes:

📌 parties to the transaction, rights and their obligations;

📌 legal grounds for the transaction and applications that confirm this;

📌 real estate characteristics, address, location;

📌 transaction amount; Step 3. Obtain permission from the guardianship authorities and the Pension Fund of Russia

All transactions with shared ownership are certified by a notary. Without permission from the guardianship authorities and the Pension Fund of the Russian Federation, the notary will not certify the agreement.

Guardianship and trusteeship authority.The sale of an apartment whose owners are minors must be approved by the guardianship authorities. Without approval, your actions will be considered illegal. Write an application and attach the required package of documents for your case. The transaction can only be completed with written permission from the guardianship authorities for the sale.

According to Part 3 of Art. 21 of the Federal Law “On Guardianship and Trusteeship” the application and documents are considered within 15 days from the date of filing the application. Until the end of this period, the guardianship authorities are required to issue a preliminary permit or refuse to issue it. A completed permit is a decision of the head of the municipality with his signature.

Pension Fund of the Russian Federation.By law, parents are obliged to fulfill the obligation given to the Pension Fund - to register real estate as the property of all family members. If you bought an apartment with a mortgage, the shares need to be allocated after you have fully paid off the loan and gotten rid of the bank encumbrance. Until this happens, the deal with the apartment, where the children did not receive a share, will be declared invalid. Therefore, for a legal sale, you need to register housing in accordance with the requirements of the Pension Fund.

Howsell a mortgaged apartment with maternal capital

You need to coordinate the deal with the guardianship authorities both if you have allocated shares to the children in the mortgaged apartment and if not. Then select the appropriate sales scheme:

💡 part of the money from the buyer will go to repay the loan;

💡 by agreement with the bank, credit obligations are transferred to the buyer;

💡 you pay off the mortgage yourself to remove the encumbrance from the property, and then re-register it to the buyer.

If you used matkapital to pay off your mortgage, you will have a notarial obligation in your hands. According to it, you must allocate a share to your children in an apartment that has not yet been sold after repaying the loan.

However, the law does not provide for a deadline for fulfilling this obligation - and it expires 6 months after the removal of encumbrances from the real estate.Sell ​​housing purchased with maternity capital, also possible at any time after purchase. To avoid being suspected of fraud, carefully monitor this moment, save all the necessary papers and secure support from guardianship authorities.

What should new housing be like?

The property you purchase in return must meet the conditions for comfortable living:

✅ infrastructure - developed and acceptable for children, with kindergartens, schools, hospitals, parks and so on;

✅ area of ​​new housing - children should have the same or larger area;

✅ year of construction - it is impossible for new housing to be dilapidated or in emergency condition;

✅ location - safe and comfortable area;

✅ the condition of the apartment is no worse than the previous one, purchased with maternity capital.

How to sell an apartment with maternity capitalto build a house

For example, the Zykin family purchased an apartment with maternal capital, but the shares have not yet been allocated to the children. Now the Zykins want to sell the apartment in order to use the proceeds to build a larger house. The difficulty is that they cannot allocate shares in a house under construction, and they cannot begin construction without selling the apartment - they do not have enough savings.

The Zykins can allocate shares in the apartment being sold, carry out the sale, and transfer the funds from the sale to the children’s savings accounts, or use the apartment of a close relative, such as a grandmother, as a counter option, allocating shares in the apartment to the children under a gift agreement.

Riskssale of an apartment purchased using maternity capital

For the buyerThe risk lies in non-compliance with the procedure for allocating shares to children. If parents sell an apartment purchased with maternity capital, but the shares have not yet been allocated to the children, the transaction can be challenged in court. If the court finds that the parents violated the order, the purchase and sale will be declared invalid. In this case, the property is returned to the original owners, and the owners get their money back.

For the sellerthe main risks are associated with disapproval of transactions from the Pension Fund, bank or guardianship authorities. Such a deal may be challenged in court and administrative liability may be imposed on the parents. To avoid such complications, first obtain all permissions from these authorities and proceed with the transaction only after approval.

The most popular way to manage maternity capital is to improve housing conditions, and above all, to buy an apartment. However, over time, the family may experience the need to sell the purchased home(for example, in connection with moving to another area, purchasing a new apartment or house, etc.). Since, according to the law, housing purchased using a certificate must be registered as the common property of spouses and children, its subsequent sale can be carried out only if it is observed, in particular - after receipt (O&P).

For such a transaction to be legal, after its completion, the children need to go to another residential premises or (in agreement with the guardianship authorities) (in the amount of the value of the children's share in the alienated housing) to a bank account opened in the name of the children.

Conditions for the sale of housing purchased with matkapital

Maternity capital funds received as a result of its sale are considered income of the taxpayer, who exempt from income tax according to paragraph 34 of Art. 217 Tax Code of the Russian Federation. And the direction of the certificate funds for the purchase of real estate is its expenses for the acquisition of property. Therefore, instead of using a property tax deduction, a taxpayer can reduce the amount of taxable income by the amount of documented expenses associated with obtaining this income.

Procedure for selling an apartment purchased using maternity capital

After permission from the OA&P for the sale of the apartment is received, the alienation of housing must be carried out according to one of two schemes:

If you are not planning to buy a new home, then you can allocate shares to your children in the housing, whose owners are relatives(for example, grandparents).

How to sell an apartment purchased with maternity capital and buy another?

If parents or guardians intend to register their children’s shares in the new home, equivalent to shares in the alienated apartment, the procedure can be carried out in two different ways:

1. Simultaneous purchase and disposal. In this case, two preliminary contracts for the purchase and sale of living space are signed, and in the latter the children are immediately indicated as the new owners.

   By agreement of the parties, the fulfillment of obligations to conclude the main contract in compliance with the conditions stipulated in the preliminary contract can be secured by a deposit (Part 4 of Article 380 of the Civil Code of the Russian Federation). However, this is not recommended, since the final decision depends on the guardianship and trusteeship authorities.

2. Buying an apartment using borrowed funds. In this case, it is allowed to first register the property as the property of the parents, provided that a notarized document is provided to the OOiP obligation to allocate shares to children after repayment of the loan. Then all the necessary documents and an application for permission to sell the home are provided to the guardianship department.

In some cases, children may be smaller shares are allocated. This is possible if:

• The cost per square meter in new housing is higher than in the old one. To do this, you need to obtain a certificate from the appraiser about the cost of 1 m 2 in the housing being sold and purchased. Then the child can be allocated a share, equivalent in cost to the old one(not by area).
• The area of ​​the new housing is larger than the old one, and the separation will occur according to the number of square meters(for example, if before the sale of an apartment with an area of ​​40 m2 the child was allocated a quarter of 10 m2, then in a new apartment with an area of ​​60 m2 the same 10 m2 in shared terms will be only one sixth, that is, the share decreases) .

How to sell a home purchased with maternal capital without allocating shares?

A mandatory condition when purchasing a home using maternity capital is the allocation of shares to each family member (spouses and children). In some cases, when at the time of transfer of maternity capital funds it is impossible to register shares in the property of children, a notarial undertaking is issued, which must be executed within the period established by law (no later than 6 months after the transfer of money from the Pension Fund or after the elimination of circumstances that do not allow the allocation of children's shares at the time of the transaction).

However, technically, the sale of an apartment purchased with maternity capital can be carried out any time- even before the expiration of these 6 months, when shares have not yet been allocated to children. In this case, the transaction may be declared invalid, and the parents may be held liable for cashing out maternity capital(fraud with state budget funds).

To avoid this, when selling an apartment you need to complete all formal procedures:

1. allocate shares to all family members (children and spouse, if any) in the purchased housing;
2. obtain permission from the guardianship authorities to sell it;
3. sell housing within the established period of validity of the permit;
4. fulfill the conditions of the guardianship authorities after the sale of the apartment:
   • allocate shares in new housing (newly acquired or existing);
   • deposit money into an account opened in the name of the children.

In fact, provided that the funds received from the sale of the apartment (in the amount of the value of the alienated children's share) are placed in the accounts of minor children, with the permission of the guardianship authorities, it is possible to sell the purchased housing without the need to re-allocate shares, however, the ability to use money in the children's bank account will also be limited by the O&P.

You can open either a regular bank account or a bank account in your child’s name. contribution(where interest will be accrued). You can use the funds received from the sale of your home in two ways:

1. money from such an account or deposit can be spent by parents in the interests of children(this also requires the consent of the guardianship authorities and the child himself, who is already 14 years old);
2. or they will do it the children themselves upon reaching adulthood(after 18 years).

How to sell an apartment with a mortgage with maternity capital?

To sell an apartment purchased with maternal capital, the mortgage on which has not yet been repaid, you must additionally receive bank's consent to carry out such a transaction.

It is important to understand that at the time of the sale of housing that is pledged to a credit institution, the shares of minors must still be allocated (in another housing). If this requirement is not met, the possibility of challenging the transaction will increase significantly. You need to take care of this before the preliminary contract is signed.

After allocating shares and obtaining permission from the OOiP, the sale can be carried out according to one of the following schemes:

• Part of the amount provided by the buyer will be used for repayment of the seller's credit obligations.
• Upon agreement with the bank, the rights and obligations under the mortgage agreement of the seller will be transferred to the buyer.
• The seller pays the remaining balance of the loan, all encumbrances are removed from the property, and it becomes the property of the buyer.

Lawyer. Legal consulting, experience in the tax office. Date of: August 22, 2017. Reading time 7 min.

Selling an apartment purchased with money from maternity capital is difficult, but possible. The main difficulty is organizing the transaction in such a way that the property interests of the children are respected. The new housing should be no worse than the previous one, and the children in it should have the same or larger shares. The transaction must be approved by the guardianship authorities. In some cases, it is necessary to obtain the bank's consent.

The most common way to manage maternity capital funds is to improve housing conditions. It should be noted that it is much easier than implementing it later. To sell an apartment purchased with maternity capital, you must comply with the conditions for the sale of the apartment.

The main obstacle is obtaining permission from the guardianship and trusteeship authorities, because until the child reaches adulthood, he is under the protection of the state.

However, problems may arise not only in this area. For example, if the apartment is pledged to the bank, you will have to additionally obtain permission from the credit institution. There may also be other features of transactions.

Deal Features

The sale of an apartment or house purchased with maternity capital is complicated by the method of registering ownership rights. According to the law, ownership of such real estate must be divided among all family members, including minor children.

Thus, in relation to an apartment purchased with a subsidy, it is complicated by the subject composition, namely children, whose property rights must be respected.

The sale of the apartment will directly affect the rights of children, in particular the right to housing. Parents, based on legal and moral standards, must act in the interests of their children. The state controls them in this, establishing the obligation to approve transactions for the purchase and sale of real estate, a share in the ownership of which belongs to persons under 18 years of age.

Separately, you should take into account other circumstances of purchasing an apartment, which will make adjustments to the sales procedure.

Firstly, if the apartment was paid for in full with your own funds and those that the family received for the birth of their second child. Secondly, the housing could have been purchased with a mortgage and is pledged to the bank. Thirdly, one of the parents signed an agreement for participation in shared construction. The method of acquisition, therefore, can significantly complicate the sale of the apartment.

This is the peculiarity of transactions related to the alienation of real estate purchased with family capital.

How to act

Compliance with children's rights is possible when they receive the same size shares in the ownership of a new apartment. Technically, this can be accomplished by conducting transactions for the sale and purchase of housing at the same time. In this case, the new housing must be the same or better than the previous one.

Having concluded preliminary purchase and sale agreements, you can contact the guardianship and trusteeship authority to obtain permission to sell the apartment.

Parents may not give their children shares in the apartment, but then they must compensate for their cost by opening bank accounts and transferring there an amount equal to the cost of the share. Such an operation is also carried out with the consent of the guardianship authorities, and a certificate of the value of the share is attached to the package of documents. The money must be credited to the account immediately after the permit is issued.

The third option is a sale with the allocation of shares in the residential premises of relatives. In this case, the share may be smaller due to the larger area of ​​another apartment in which the child is allocated a part, or due to the difference in cost.

The procedure for obtaining permission from the guardianship authorities

To obtain written permission, parents must attend an appointment with the guardianship and trusteeship authority. It is part of the municipality, and you should look for it in the administration. In large cities, a dedicated department is responsible for each district or municipality. For example, in the Frunzensky district of St. Petersburg there are 6 municipalities, each of which has its own site. They are also located in different places, so before contacting it is recommended to clarify the location of the desired department.

Parents fill out an application for permission to sell residential premises from specialists. It contains information about the apartment being sold and purchased with the distribution of shares. The application is signed by both parents and the necessary documents are attached to it.

Table 1. List of required documents.

Documentation
for parents	for children	for real estate (existing and planned for purchase)
passports	birth certificate for each child	technical plan
certificate of marriage or divorce	passport for children over 14 years of age
application from other adult owners for the sale of a house or apartment	application from a child if he is 14 years old	extracts from the personal account confirming the absence of debt
–	certificate from a child care institution (kindergarten or clinic)	notarized preliminary purchase and sale agreement or original and simple copy
–	–	certificate of cost of both objects
–	–	certificate of ownership
–	–	certificate on form F-9
–	–	certificate on form F-7
–	–	extract from the Unified State Register
–	–	statement of guarantee from the owner of the purchased premises

At the appointment, the specialist can certify the copies himself; to do this, you need to provide him with the originals.

The task of the guardianship authorities at the stage of selling the apartment is to make sure that the children receive shares in the property rights, and the living conditions will not deteriorate.

Important! The application is considered for one month, but can be issued earlier. It is drawn up in the form of a decision of the head of the municipality and signed by him. The permit is valid for 3 months. Within a month after registering the transaction, documents confirming the transfer of ownership must be submitted to the guardianship authorities.

Apartment with encumbrance

If the apartment was purchased with borrowed funds, that is, through mortgage lending, then it is pledged to the bank. The encumbrance is removed only if the debt is fully repaid. Until this moment, any transactions related to the disposal of collateral property without the permission of the bank are prohibited.

Moreover, maternal funds could be used on or on.

In addition to permission from the guardianship authorities, parents must obtain written consent from the bank to sell the encumbered apartment.

The main task is to find a buyer who is ready to purchase such an apartment and assume obligations to repay the debt.

After receiving the written permission of the mortgagee, the following occurs:

• the buyer transfers money sufficient for the down payment to the bank account;
• the loan agreement is renegotiated with the buyer, the latter assumes obligations to repay the debt;
• the buyer repays the debt to the bank, removes the encumbrance and registers the apartment in his own name.

The seller under such a transaction is released from financial obligations.

Note! When selling a mortgaged apartment, the family will lose value, since the cost of such real estate is lower than the market price.

Apartment without encumbrance

Selling an unencumbered apartment is much easier: you do not need to obtain additional permits; it is enough to agree on the transaction with the guardianship and trusteeship authorities.

You can confirm your intention to purchase residential premises to replace the one you are selling by providing a share in which the children are allocated. If an exchange is made, then an exchange agreement is provided.

Note! Parents need to remember to register their children at their new place of residence. It is recommended to register at the place of residence simultaneously with purchase and sale transactions.

Is it possible to sell an apartment before allocating shares to children?

As a general rule, it is impossible to sell an apartment without allocating shares to children. The guardianship and trusteeship authorities will not approve such a transaction, but, most likely, will offer to comply with the established procedure. However, the specifics of the situation should be taken into account.

If the apartment was purchased with a loan and is pledged to the bank, the parents draw up a notarized obligation to allocate shares within six months from the date of removal of the encumbrance. In this case, the sale of real estate before the distribution of shares is permitted.

Parents must allocate “children’s” shares in the ownership of the acquired property, which must be no worse than the alienated one. To do this, they provide the original of the preliminary purchase and sale agreement, in which the shares are distributed to all family members, including children.

When selling an apartment due to the treatment of a seriously ill child, it is also possible not to divide ownership into shares. But parents will be required to confirm the intended use of the funds received. For this purpose, a commission conclusion on the diagnosis and recommended treatment, an agreement with a medical organization for treatment or surgery, or other medical documents are suitable.

Taxation

According to the Tax Code, income received from the sale of real estate is subject to income tax. The exception is property owned for more than 5 years. This period has been increased; previously it was 3 years. Therefore, if the apartment was purchased before January 1, 2016, then a period of 3 years applies to it; for purchases made after this date, a five-year period applies.

The specified periods of ownership should be taken into account when selling real estate and, if necessary, submit declarations to the tax authority located at the place of registration.

Owners should remember that they can take advantage of deductions provided by law that are appropriate to the situation.

Risks for buyers

For the buyer of an apartment, the risk lies in non-compliance with the procedure for allocating shares for children. If the parents decide to sell the housing purchased with family capital before the allocation of shares, then such a transaction can be challenged in court.

If the court decides that the parents violated the established procedure, then the purchase and sale will be declared invalid: the property will be returned to the previous owners, and they, in turn, will return the money received.

It is possible to sell housing purchased with maternity capital funds. To do this, you will have to follow all approval procedures and obtain the necessary permits.

Additional information on the topic in the video:

Author: . Higher legal education: North-Western branch of the Russian Academy of Justice (St. Petersburg) Work experience since 2010. Contract law, consulting on taxation and accounting, representation of interests in government agencies, banks, and notaries.
August 22, 2017.

For the entire period while it is being implemented family support program with two or more children, over 90% of certificate holders chose to direct its funds to. However, participants in the state program may have a need over time (for example, for the purpose of subsequently purchasing more spacious housing, or due to the need to change their area of ​​residence or move to another area, etc.).

• If all family members by this moment have reached the age of majority, then with the consent of all owners the issue of sale can be resolved very easily.
• If among the participants in shared ownership there are persons under 18 years of age, then the alienation of residential premises is possible with certain restrictions and only if there is permission from the guardianship and trusteeship authority.

Conditions for the sale of residential premises purchased with capital

Because the prerequisite the use of the certificate is to register the purchased housing as property all family members, guardianship and trusteeship authorities closely monitor compliance with the rights of minor children.

The interest of Guardianship employees in the fate of residential premises, for the purchase of which funds from maternal capital were allocated, is due to the desire to avoid situations in which children could lose shares in property rights. That is why the sale of such apartments is impossible without the prior approval of the guardianship authority.

To obtain the consent of the guardianship authorities to carry out the transaction, parents must prove that the transaction will not infringe rights and interests of children, and what is its result:

• residential premises owned by the family without encumbrances are for sale;
• a mortgage has been imposed on the purchased property by force of law.

Let us consider these cases in more detail.

Selling an apartment without encumbrances

In this case, in order to approve the transaction, it is necessary to provide documents confirming fact of purchasing a new home. This evidence is:

• preliminary agreement purchase and sale, certified by the signature and seal of a notary;
• one can imagine barter agreement(“trade in”), the terms of which will provide buyer's surcharge when exchanging housing of a smaller area for a larger one.

Due to the fact that minors cannot be deregistered simply without registering them at their place of residence in another place, both transactions, after obtaining the consent of the POiP, must carry out in one day.

Share distribution agreement in a new residential building is also subject to state registration in Rosreestr.

Sale of an apartment encumbered with bank collateral (mortgage)

If it is necessary to sell an apartment until the mortgage loan is fully repaid- first you need to get bank's consent. However, if in residential premises pledged to a credit institution, At the time of sale, shares were not allocated to minors- This does not mean that there is no need to contact the OOiP!

• On the contrary, if a family sells an apartment without fulfilling its obligations, there is a very high chance challenging such a deal.
• In addition, the undertaken obligation to allocate shares to children contains information about specific living space, the owners of which should be minor family members.
  • This means that you cannot simply take and replace a property without agreeing with the guardianship.
  • It is better to take care of this in advance, for example, at the stage of signing the preliminary agreement.

After completing all the formalities and obtaining the necessary permits, you need to select a specific sales plan:

• part of the buyer's savings will be credited to pay off obligations for a home loan from the seller (usually a down payment);
• in agreement with the bank by concluding a new legal agreement and responsibilities of the seller under a mortgage loan agreement transferred to the buyer;
• seller pays off mortgage, encumbrances are removed from the property and it is re-registered to the buyer.

Conclusion

Thus, purchased using , Maybe, but subject to certain legal formalities, one of which is acquisition of real estate, superior in size and conditions to what is being sold.

Satisfaction of this condition will indicate compliance rights and interests all family members, including minors who do not have the opportunity to participate in such transactions on full grounds.