Pravozhil.com > Real estate registration > Contract > What contracts are subject to state registration and how is it carried out?
Which contracts are subject to state registration is a pressing question for many entrepreneurs and ordinary citizens. In their activities, legal entities and citizens often have to enter into various transactions in their lives.
In some cases, for an agreement to come into force, its signing by the parties is not enough. This requires the state to complete an act of confirmation of the transfer of rights between the parties to the transaction.
What is the meaning of state registration?
State registration of transactions
The legislation establishes the mandatory registration of all rights, including property, in real estate transactions.
Such a special procedure for a given object of law is determined by its status and special characteristics. Its value often leads to various frauds in the real estate market.
Through this action, the legislator wanted to protect the rights of participants in real estate transactions and increase their legality and transparency.
For transactions that must undergo this procedure, the registration act is the only confirmation of their completion. Registration authorities recognize the very fact of emergence, termination or transfer of rights, as well as its certification.
This is done by making a corresponding entry in the unified register. Rights under a registered transaction can only be challenged in court.
Persons who neglect this condition risk facing negative consequences of their inaction. In this case, the contract may be recognized as unconcluded or invalid and have no legal significance. Such a deal will not give rise to any real consequences for its parties.
When concluding transactions involving real estate, it is worth asking whether there is a need for their registration.
Otherwise, the consequences that the parties expected when signing the agreement will not be considered to have occurred. In fact, when buying an apartment, a citizen cannot be considered its full owner until this fact is registered.
Why register a contract?
The issue of transferring the right to use trademarks and patents to other persons is one of the most frequently arising issues in the area of disposal of exclusive rights.
According to the law, the copyright holder has the opportunity, for a certain period and under certain conditions, to transfer to another person for use an object of intellectual property belonging to him.
To register such relations, the signing of a license agreement is required, which is subject to mandatory registration with the Federal Service for Intellectual Property of the Russian Federation. Otherwise, the contract will be considered invalid and not concluded.
When preparing such documents, special attention should be paid to the preparation and registration of license agreements, paying attention to the moment of exclusivity of the license.
The need to register a license agreement granting the right to use a trademark or patent is determined mainly by the need to receive payments for granting the right to use trademarks or patents.
State registration is also required for contracts for the alienation of objects registered with the Federal Institute of Industrial Property. To register an alienation agreement, it is necessary to pay a state fee, the amount of which will depend on the type of object, as well as the number of objects being alienated.
A franchise (commercial concession) agreement is concluded in writing and is subject to state registration with the federal executive body for intellectual property (Article 1028 of the Civil Code of the Russian Federation). Such a body is the Federal Service for Intellectual Property (Rospatent). An unregistered commercial concession agreement is considered invalid.
The pledge agreement, regardless of whether the parties are legal entities or individuals, must be concluded in writing.
A pledge of real estate after notarization is subject to state registration, which ensures the establishment of all cases of pledge of the same real estate.
A number of regulations provide for the registration of pledge of certain types of movable property. Thus, paragraph 2 of Article 40 of the Pledge Law establishes the rule on mandatory registration of the pledge of all vehicles.
Transactions that do not require registration
Which agreement is not subject to state registration? Transactions need to be registered only when this is expressly required by law. Taking into account the above circumstances, this list is quite broad.
First of all, transactions with movable property do not require such a procedure. They have a completely different status and do not need increased regulation.
The next category includes those real estate transactions that have never required entry into a single register. These are lease agreements with a term of less than a year or for an indefinite period, commercial rental, trust management, loans.
Since a certain time, transactions of purchase and sale of housing, enterprises, donation of real estate, and its alienation on rental terms do not require registration.
It should be noted that this is not a complete list, taking into account the principle of freedom for the parties to conclude any agreements.
When deciding whether it is necessary to visit the registration authorities when concluding a transaction, you should be guided by the norms of civil law. If it contains a direct indication of the need for fixation, then the transaction will not be considered legitimate without its implementation.
STATE REGISTRATION OF CONTRACTS
S. DENISOV In accordance with paragraph 3 of Art. 433 of the Civil Code, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law. This procedure for the entry into force of agreements, as well as the entry into force of real agreements, is an exception to the general rule provided for in paragraph 1 of Art. 433 of the Civil Code, according to which an agreement is recognized as concluded from the moment the person who sent the offer (offer to conclude an agreement) receives its acceptance (acceptance of the offer) from the partner. The need for state registration of contracts is determined primarily by the economic importance of their subjects - land and other real estate. It is designed to ensure respect for the rights of property acquirers, third parties and the stability of all civil turnover. In this case, we should not be talking about technical, but about legal registration of contracts and rights to property by justice authorities in a unified state register, and information about the registration performed should be available to any person. The Civil Code of the Russian Federation (Article 164) provides for the adoption of a special law on the registration of rights to real estate and transactions with it, which should determine the cases and procedure for state registration. Until the adoption of this law, the registration procedure in force since the entry into force of Part 1 of the Civil Code of the Russian Federation will apply. Currently, registration and execution of documents on rights to land plots and real estate firmly associated with them is carried out by the Committee of the Russian Federation on Land Resources and Land Management and its territorial bodies (Decree of the President of the Russian Federation “On the State Land Cadastre and Registration of Documents on Rights to Real Estate” dated December 11. 93 No. 2130). The rules for submitting information on state registration of rights to real estate and transactions with it are established by Decree of the President of the Russian Federation dated August 27, 1996 No. 1270. Analysis of the Civil Code of the Russian Federation allows us to determine cases when state registration is a mandatory condition for concluding contracts. Such cases include: mortgage agreement (clause 3 of article 339); agreement on assignment of claims or transfer of debt under transactions requiring state registration (clause 2 of article 389, clause 2 of article 391); contract for the sale of a residential building, apartment, part of a residential building or apartment (clause 2 of Article 558); agreement for the sale of an enterprise (clause 3 of Article 574); a rent agreement providing for the alienation of real estate (Article 584); real estate lease agreement, unless otherwise provided by law (clause 2 of article 609); lease agreement for buildings and structures concluded for a period of more than one year (clause 2 of Article 651); lease agreement for enterprises (clause 2 of Article 658). In this regard, it seems important to distinguish the state registration of an agreement from the state registration of rights to real estate. Thus, an agreement for the sale of real estate (Article 549 of the Civil Code), with the exception of the above cases, does not require state registration. In this case, state registration requires the transfer of ownership of the relevant real estate (Article 551 of the Civil Code). This provision also applies to the property trust management agreement (clause 2 of Article 1017 of the Civil Code). Consequently, such agreements are recognized as concluded and come into force from the moment they are given the proper form. The value of state registration of rights serves as the basis for changing the relationship of the buyer and seller of real estate with third parties when the parties fulfilled their obligations under the contract earlier than the registration was made. The requirement for state registration can be established not only in relation to contracts the subject of which is real estate. The law may establish mandatory state registration of transactions with movable property of a certain type (clause 2 of Article 164 of the Civil Code), which represents increased social and economic interest and requires the establishment of a special legal regime. For example, in accordance with the Federal Law “On the Museum Fund of the Russian Federation and Museums in the Russian Federation” dated May 26, 1996, purchase and sale transactions of museum objects and museum collections are subject to state registration in the State Catalog of the Museum Fund of the Russian Federation. The need for registration in this case is determined by the high national significance of the subject of the agreement. Agreements on the complete assignment of all property rights to a registered computer program or database must be registered. The registration authority is the Russian Agency for the Legal Protection of Computer Programs, Databases and Integrated Circuit Technologies (Clause 5 of Article 13 of the Law of the Russian Federation “On the Legal Protection of Programs for Electronic Computers and Databases” dated 09.23.92). Constituent agreements on the creation of legal entities are also subject to state registration (Article 52 of the Civil Code). The legislator's requirement to carry out state registration of individual contracts is mandatory. Deviation from this rule almost always entails recognition of the contract as not concluded. However, there are special cases. Thus, a special rule has been established regarding the registration of a commercial concession agreement, Art. 1028 Civil Code. This rule establishes an exception from clause 3 of Art. 433 of the Civil Code, since the need for state registration of a commercial concession agreement does not affect its validity in the relationship between the copyright holder and the user, whom it binds from the moment of signing. However, for third parties it becomes valid only from the moment of state registration. For a commercial concession to use an object protected in accordance with patent law, additional registration is established with the federal executive body in the field of patents and patent marks. Another exception is clause 5 of Art. 13 of the above-mentioned Law of the Russian Federation “On the legal protection of programs for electronic computers and databases”, which determines that agreements on the transfer of property rights to a computer program or database can be registered with the Agency by agreement of the parties. Thus, the requirement for state registration is dispositive. State registration of an agreement will have legal significance only if the parties or at least one of the parties consider it necessary to register the agreement. Thus, we can conclude that according to the general rule of paragraph 3 of Art. 433 of the Civil Code, under an agreement requiring state registration, the parties have mutual rights and obligations from the moment of such registration. In this case, the parties have the right to establish that the terms of the agreement concluded between them apply to their relations that arose before the conclusion of the agreement (clause 2 of Article 425 of the Civil Code). However, it is necessary to take into account that by signing an agreement, the parties express to each other their desire to establish a certain legal relationship, to assume mutual rights and obligations, that is, they voluntarily, on their own initiative, bind themselves to the agreement reached. Therefore, in order to protect the rights of a bona fide party from possible dishonest actions of its counterparty, the Civil Code (clauses 3 and 4 of Article 165) provides that if a transaction is completed in the proper form, but one of the parties evades its state registration, then the bona fide party has the right go to court with a demand for forced registration of the transaction and compensation for losses caused by the delay in registration. In this case, the court has the right to decide to register the transaction and it is registered in accordance with the court decision. The transaction will be considered concluded from the moment of its registration by the relevant authority. Rules paragraphs. 3 and 4 tbsp. 165 of the Civil Code fully applies to contracts, since they deal with bilateral and multilateral transactions. At the same time, it must be emphasized that despite the agreed will of the parties to enter into an agreement requiring state registration, it may, despite their desire, not come into force if the registering authority refuses the parties to register. But such a refusal must be based on the law. Otherwise, the parties have the right to demand in court to oblige the relevant government body to carry out registration. LINKS TO LEGAL ACTS
RF LAW of September 23, 1992 N 3523-1 “On LEGAL PROTECTION OF PROGRAMS FOR ELECTRONIC COMPUTING MACHINES AND DATABASES” “CIVIL CODE OF THE RUSSIAN FEDERATION (PART ONE)” dated November 30, 1994 N 51-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation F 10/21/1994) “CIVIL CODE OF THE RUSSIAN FEDERATION (PART TWO)” dated January 26, 1996 N 14-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 22, 1995) FEDERAL LAW dated May 26, 1996 N 54-FZ “On the MUSEUM FOUNDATION OF THE RUSSIAN FEDERATION AND MUSES EYAH IN THE RUSSIAN FEDERATION" ( adopted by the State Duma of the Federal Assembly of the Russian Federation on April 24, 1996) Decree of the President of the Russian Federation dated December 11, 1993 N 2130 “On the STATE LAND CADASTRE AND REGISTRATION OF DOCUMENTS ON RIGHTS TO REAL ESTATE” DECREE of the President of the Russian Federation dated August 27, 1996 N 1270 “ON APPROVAL PROCEDURE FOR PROVIDING INFORMATION ABOUT STATE REGISTRATION OF RIGHTS TO REAL ESTATE AND TRANSACTIONS WITH IT" Business Lawyer, N 7, 1997
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Who is registering?
The main body that, according to the law, is vested with the right to carry out registration actions is the Federal Service for State Registration, Cadastre and Cartography (abbreviated as Rosreestr). In order to receive this service, you need to contact the relevant body of Rosreestr with an application and a list of required documents.
You can submit an application and documents for registration either in person or by post or electronically. In addition, in some cases, a home visit service or delivery to the registration authority may be provided at the client’s request. For WWII veterans or disabled people, for example, it is provided free of charge.
However, you can apply for registration of your rights or agreement not only to Rosreestr and its divisions. This service is also provided by multifunctional centers.
Documents required for registration
The registration authority can begin to carry out its work only after receiving applications from the parties to the transaction or persons representing them. In addition to the application itself, supporting documents must be submitted. Their list varies depending on the situation, but its approximate components can be found in the Rosreestr authorities or on their websites. Basically, you need to provide the following documents:
- statement (from one person or each party to the transaction);
- identification documents of the applicant;
- supporting documents (agreement, transfer and acceptance certificate, etc.);
- about payment of state duty.
If it is not the participants themselves, but their representatives, who apply for registration of rights (transactions), then powers of attorney must be attached. Services of representatives of this kind are quite popular. An experienced lawyer knows all the legal nuances of concluding, processing and recording transactions. He can suggest an algorithm of actions for completing a legal transaction, correctly assess the actions of the other party and the documents presented to it.
A qualified specialist can provide any assistance: from oral consultation to full transaction support. In addition, many simply do not want to deal with registration on their own and waste their time going to different authorities and authorities.
Additionally, the consent of the spouse may be required to carry out transactions with common property, permission from the guardianship authorities, and representatives of minors.
For organizations, it is also necessary to submit constituent documents, confirmation of the powers of the persons who signed the agreement and the application.
Carrying out state registration of rights
After receiving the application and the documents attached to it, an employee of the registration authority must analyze them. The completeness of the submitted documents, their legal side and legality are assessed. Only ten days are allotted for this inspection.
After their expiration, a decision is made to register the right (transaction), to refuse registration or to suspend it. You can suspend it if there are deficiencies that can be eliminated. To do this, such a decision is sent to the applicant with a proposal to correct them within a specified period. Depending on the actions taken by him, registration may be renewed or terminated.
Based on the results of registration, a corresponding entry is made in the unified register of rights. Previously, on the basis of the entry made, certificates were issued certifying the right (transaction) and confirming their registration. However, recently their issuance has ceased. Now the only confirmation will be the entry in the register itself and extracts from it issued on the basis of the application.
State register of rights
The Unified State Register of Rights (USRR) is a special information resource containing information about all registered real estate objects, rights to them, including terminated ones, and about rights holders. It consists of sections and subsections and is maintained on paper and (or) electronically. All entries have a specific number and are strictly accounted for.
Attached to it are books of records of papers received and accepted for registration, files of title documents. The information in the Unified State Register is open, but there are exceptions.
Restrictions relate to information about the rights of a specific person and the content of documents submitted by the parties. They can only be provided to a certain circle of people, for example, law enforcement agencies. The remaining information can be freely provided upon application by any person.
For more information about real estate transactions, state registration of rights to such property and transactions with it, watch the video:
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Discussion: 2 comments
- Ivan says:
02/11/2020 at 01:07If the parties, by mutual agreement, decided for some reason not to register the agreement concluded between them, can they initiate state implementation in a couple of years without consequences?
Answer
- Oleg says:
03.23.2020 at 13:18
I don’t see any particular problem in the state registration of certain contracts; sometimes there is simply no time for registration procedures. Is it possible to postpone registration for a while if there is a notarized sample agreement?
Answer
Why is registration of contracts necessary?
State registration agreement: sample
In any agreement or transaction, each party wants to be sure that the other party will fulfill its obligations as specified in the contract. To do this, the documentary agreement is certified by the signatures of responsible persons and the seals of organizations or individual entrepreneurs, if available.
But in most cases, signatures and seals alone will not be enough in the event of a violation of the contractual terms of one of the parties and a demand for compensation for the damage suffered by the other. In order to be as confident as possible in the protection of your interests, it is necessary to go through the procedure of state registration of the contract, having certified its details and the very right to exist in an organization that also deals with registration procedures.
Compensation for damage due to breach of contract or failure to fulfill stated obligations is often only possible to obtain through legal proceedings. But no authority will undertake to consider a claim in the absence of state registration of the agreement. It will simply be considered invalid.
When concluding a number of agreements, for example, lease or purchase and sale, and not registering them, you can attract the attention of tax inspectors and give the opportunity to suspect yourself as a tax evader.
During the process of state registration, the parties entering into an agreement are checked for the presence of various debt obligations and encumbrances. This allows you to protect an “honest” company from dealing with an unscrupulous supplier, tenant, etc.
There are other benefits that can be obtained as a result of the legal execution of the contract:
- When registering a lease agreement, the tenant is compensated for the costs of the procedure and partially for the payment of rent.
- When registering an agreement for shared participation in construction, the buyer of an apartment in a building under construction is insured against the fact that one more or even several buyers will claim it.
- When registering an annuity agreement, its recipient is insured against fraud on the part of the payer.
This list goes on and on.
Why state registration of a contract is needed, the video will tell you:
