Land exchange agreement: legal regulation of exchange, acceptable sample, accounting

Rules for the exchange of land plots

The possibility of using a land plot as an object of paid and gratuitous transactions is regulated by the Civil Code of the Russian Federation and the Land Code of the Russian Federation. Only the owner can dispose of land; temporary land users (for example, tenants) are deprived of this right. It must be taken into account that any transaction with land plots is subject to mandatory registration with the Rosreestr service, since the plots are classified as real estate.

The key characteristics of land exchange are as follows:

within the framework of this transaction, there is a mutual transfer of ownership of the object of exchange;
land plots can be exchanged for similar objects, or for other property assets (residential and non-residential premises, vehicles, etc.);
an exchange agreement may include a condition for the payment of monetary compensation by one of the parties if the exchanged objects are unequal in value.

For all objects of the exchange agreement, the parties must independently agree on cost characteristics. In relation to land plots, the price can be set based on the cadastral value or market prices for similar objects. As a rule, the value of the object or thing for which the land is exchanged is recognized as equivalent, which makes it possible to avoid additional payments under the contract.

Land can be the subject of exchange regardless of its intended purpose specified in the title documents. For the new owner, the legal regime of permitted land use is preserved, and its change is allowed only on the basis of a decision of the authority. You also need to take into account the following mandatory rules for the exchange of plots:

after registering the transfer of ownership rights in the Rosreestr service, the encumbrances and restrictions previously established for the site (for example, public or private easement) remain valid;
if a structure or building is located on the land, it is subject to simultaneous alienation;
if part of the land plot is subject to exchange (for example, with shared ownership), it will be necessary to first offer it to other owners.

Thus, the exchange of land plots is similar in form to a civil purchase and sale transaction, since the transfer of ownership occurs on paid terms.

The procedure for exchanging land plots

Since land is classified as real estate, the Civil Code of the Russian Federation imposes two requirements on the form of the contract - it must be drawn up in the form of a written contract, after which it is subject to registration with the Rosreestr service.
To exchange shares for a plot, the legislation provides an additional condition - in addition to the mandatory notification of other owners, such agreements must be certified through a notary office. After agreeing on the essential and additional terms of the transaction, the parties must draw up a bilateral agreement. Its text should contain the following points:

date and place of drawing up the contract;
detailed information about the parties to the transaction - passport data for individuals, official attributes of enterprises;
subject of the transaction - data about the land plot and object that are exchanged under the agreement;
information about whether the parties have ownership rights to the objects under the agreement;
cost characteristics of each transaction object;
the amount and procedure for transferring the additional payment, if it is a condition of the contract;
the procedure for the actual transfer of objects of exchange, as well as the registration of rights to them from new owners;
conditions for maintaining restrictions and encumbrances on objects under an exchange agreement.

land exchange agreements

In some cases, making an exchange will be impossible without the consent of the person in whose favor the encumbrance is registered. For example, if a pledge is registered on a plot of land in favor of a credit institution, in order to exchange it it is necessary to obtain the consent of the bank or to repay the obligations under the loan agreement.

The procedure for transferring rights to objects under a transaction may vary significantly . If the plot is exchanged for other real estate (apartment, non-residential premises, etc.), registration with the Rosreestr service will be carried out simultaneously for both objects. If land is exchanged for a vehicle, it is registered as part of an independent procedure through the traffic police. If movable property is transferred in exchange for a plot, registration actions are carried out only in relation to the land (to transfer rights to movable property, it is enough to conclude an acceptance deed).

An important rule is regulated by Article 568 of the Civil Code of the Russian Federation - if the counterparties have not agreed on the cost characteristics of the plots in the contract, they are recognized as equivalent in price. This condition will be essential for the calculation of tax liabilities that arise for each party after registration of the agreement. It must be taken into account that underestimation of cost indicators currently has no legal meaning. After submitting declaration forms to the Federal Tax Service, tax inspectors are required to conduct a desk audit of the documents. If the market price is lower than the cadastral value, the second indicator will be used to calculate tax liabilities (if necessary, the amount of tax will be additionally charged).

Algorithm of actions for registering an agreement

In order for the transfer of rights under a land exchange agreement to be officially registered, the parties need to contact the Rosreestr service or the Multifunctional Center. When registering, counterparties must submit the following set of documents:

application for registration actions;
general civil passports for the parties to the transaction, or documents for legal entities;
a notarized power of attorney for the representative, if the parties used this option for conducting the transaction;
exchange agreement and transfer deeds;
title documents for property assets - certificate of title, extract from the state register of the Unified State Register of Real Estate, vehicle registration certificate, etc.;
boundary plan for the land, if the site has not previously undergone the cadastral registration procedure;
payment order confirming payment of the state duty (in 2017, for citizens the state duty is 2,000 rubles, for enterprises - 22,000 rubles).

Depending on the type of application, registration actions will be completed within 7 to 12 days (if applying through the Multifunctional Center, registration will take two days longer). After completing the registration stage, the new owner of the land plot will receive an extract from the state register of the Unified State Register of Real Estate.

Registration of exchange agreements for a share of a plot is possible only after notarization of the transaction. To do this, the owner of the site must follow the following algorithm of actions:

obtain a boundary plan for the share through a cadastral engineer;
send other owners a notice of the conclusion of an exchange agreement with an offer to buy out the share with a preemptive right;
If within a month there is no consent to the specified proposal, or a refusal is received, the agreement is submitted to the notary’s office for certification.

After the notary’s certification mark, further registration actions in Rosreestr will take place according to the general rules.

Decor

In order for all the terms of the agreement to come into force for all persons, it must be registered with the Rosreestr service. This procedure takes up to 12 days, as a result the beneficiary receives an extract from the state register of the Unified State Register of Real Estate.

To carry out such actions, the parties to the transaction must provide the registry official with a completed registration application form, supplemented by the following package of documents:

Passports of citizens of the Russian Federation or statutory documents of legal entities, powers of attorney of representatives, if necessary;
Exchange agreement with transfer deeds;
Documents confirming ownership of the exchanged items;
Receipt for payment of state duty.

Registration of an agreement in the register is possible only after its notarization. In order to obtain such a notarial act, you must have a cadastral plan of the site and obtain a waiver from the purchase of a share of the site by other co-owners.

Tax obligations under an exchange agreement

Each of the parties to the exchange agreement simultaneously acts as a seller and a buyer in the transaction. Therefore, they are subject to general taxation requirements. If the subject of the exchange was a land plot and other real estate, tax obligations will have the following nuances:

income received during the exchange will be taxed at a rate of 13%;
to calculate tax liabilities, it takes into account the value of the site specified in the contract or the cadastral value;
if the period of ownership of the plot exceeds three years, the obligation to pay tax does not arise;
If the tenure period is less than three years, you can take advantage of a property deduction in the amount of one million rubles, or deduct the cost of land acquisition expenses from the tax base.

The purchaser of a land plot can also take advantage of tax preferences. The tax base can be reduced by two million rubles; the specified tax deduction must be calculated by the acquirer independently by submitting a declaration form to the Federal Tax Service Inspectorate in form 3-NDFL. This deduction is carried out at the expense of the amount of personal income tax withheld from the acquirer for previous reporting periods.

The specified tax benefits apply to participants in the exchange agreement, regardless of the legal status of the objects. In particular, if the owner of a car exchanged it for a plot of land, he will be able to receive a tax deduction based on the value of the plot determined in the terms of the agreement.

From the moment the rights are transferred to the new owner, he has an obligation to pay land tax. Land tax rates are approved by local authorities and are calculated based on the cadastral value of the site.

Drawing up a land exchange agreement

According to Article 550 of the Russian Civil Code, an agreement for the sale of real estate is drawn up in writing by drawing up one document signed by the parties. Consequently, an agreement for the exchange of plots of land must be concluded only in writing .

Failure to comply with the mandatory requirements of the legislator regarding the form of the agreement entails its invalidity.

The standard format for an agreement for the exchange of plots of land is established by the Letter of Roskomzem dated October 19, 1994 N 2-16/1629.

An agreement for the exchange of plots of land as real estate requires state registration of the rights of the new owners in the branch of Rosreestr at the location of the corresponding plots of land that are the subject of the exchange agreement.

An agreement for the exchange of plots of land must describe the characteristics that individualize the plots being exchanged, which are the subject of this agreement:

Cadastral numbers of the land plots being exchanged;
Area of alienated plots;
The intended purpose of the relevant lands, which include the exchanged plots;
The purpose of exploitation of land plots;
Real estate objects located on the exchanged plots of land with the designation of their ownership.

The land exchange agreement is accompanied by graphic plans (drawings) of the land plots that are the object of the exchange. The parties to the agreement should also take care of the assessment of the exchanged plots of land in accordance with the established cadastral value, as well as the assessment of various structures and other real estate located on the land.

The assessment is formalized in the form of acts of determining the cadastral value of the alienated land and summary statements of assessment of buildings and structures attached to the exchange agreement. When drawing up an agreement for the exchange of plots of land, the parties are obliged to inform their counterparties:

about the existence and legal nature of existing land disputes and conflicts regarding the exchanged plots or their absence;
about the presence of existing easements;
on the transfer of the exchanged plot of land to a third party;
on the transfer of alienated land as collateral.

The territorial boundaries of all lands encumbered with the rights of third parties and the general content of these rights-encumbrances are indicated on the drawing (graphic plan) of the corresponding plot of land. The agreement itself also reflects restrictions on the rights of owners associated with sanitary protection, technological and other zones established on the land or the classification of lands of the exchanged plot (or part thereof) as land for recreational, environmental or historical and cultural purposes.

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