Exchange of shares between relatives: methods, samples and taxes

Exchange methods

General data for three legally correct options for exchanging relatives' shares are shown in the table. For each item there are certain rules established by the current legislation. When studying practical issues in detail, one should not violate the rights of other owners, and also not forget about fulfilling obligations to the state in the field of taxation.

Significant savings in money when donating is a strong argument in favor of donation. Another advantage is that there is no requirement to obtain the consent of other residents. However, it should be taken into account that only close relatives do not pay the tax: spouses, children, parents, grandparents, grandchildren, brothers and sisters. But these benefits do not apply to similar property registration, for example, between an uncle and a nephew. The general parameters of the other options are equivalent. Important details are provided in the following sections.

List of documents

Registration of the exchange of shares by relatives is completed by changing the entries in the Rosreestr database. To complete this procedure, the following documents are submitted through the Multifunctional Center:

How the procedure works

The share exchange procedure provides for the following procedure:

collect a set of documents;
enter into a barter agreement;
register the transaction in Rosreestr.

In some cases, citizens have the obligation to submit a declaration to the Federal Tax Service and pay tax on the income received as a result of the transaction.

List of required documents

To conclude an agreement on the exchange of shares in a residential premises, owners must prepare the following documentation:

passport;
title and title documents for housing;
cadastral passport of the object;
notarized consent of the spouse if the share was acquired during marriage;
consent of other co-owners to the exchange;
Social security permit if one of the owners is a young child.

The package of documents will be identical for both parties.

Conclusion of an agreement

The parties can draw up an exchange agreement themselves or engage a notary for this.
But, when alienating part of the living space, the contract is subject to mandatory notarization. Participants in the agreement can save only on technical services, that is, on drawing up the document. When drawing up a contract yourself, it is necessary to include the following points:

information about the parties to the transaction;
data on shares in apartments;
description of the apartments themselves;
procedure and timing of the exchange;
liability of the parties for failure to fulfill the terms of the contract.

If there is an unequal exchange, the parties have the right to indicate a clause on additional payment. In this case, it is necessary to specify the amount, period and method of transfer of funds.

To confirm the actual transfer of part of the real estate to relatives, it is necessary to draw up a transfer deed. Such a document is drawn up in relation to both apartments and signed by the parties to the agreement.

The form of the transfer deed is not regulated by law, but it should indicate:

details of the exchange agreement;
information about the parties to the transaction;
description of living space;
information about the absence of claims to the technical condition of the property.

At the end of the document there is a date and a handwritten signature of both parties. The deed of transfer is an integral part of the contract and is submitted along with other documents to Rosreestr for state registration.

Registration in Rosreestr

For state registration of the transfer of ownership rights to Rosreestr, you must submit the following package of documents:

exchange agreement in 3 copies;
passports of the parties to the transaction;
confirmation of the relationship of the parties to the transaction;
an extract from the Unified State Register confirming ownership;
notarized consent of the spouse, if one of the parties is married;
consent of other owners to the exchange;
technical certificates for objects.

A state fee of 2,000 rubles is charged for registering the transfer of rights. State registration is carried out within 5 days, after which citizens can receive new USRN extracts confirming ownership rights.

Preemptive right of owners

To avoid challenging a real estate transaction in court, qualified preliminary preparation is needed. When exchanging and buying and selling from other owners, they obtain written consent to carry out the transaction, which is certified in a notary office according to the standard procedure. When contacting them, they are given detailed terms of sale (exchange of relatives' shares). The law provides for a month to receive a response. If it is not there, you can attract third-party buyers.

you can here.

When making a gift, there is no need to observe the pre-emptive right - you can immediately draw up an agreement.

For your information ! The rights of minors are protected by guardianship and trusteeship authorities. Without their consent, it is impossible to reduce the child’s share or dispose of maternity capital funds. The appropriate permission must be obtained to complete the transaction with the entry of new entries into the Rosreestr database.

In accordance with paragraph 2 of Article 567 of the Civil Code of the Russian Federation, the rules on purchase and sale (Chapter 30) are applied to the exchange agreement accordingly, if this does not contradict the rules of this chapter and the essence of the exchange. In this case, each party is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.

According to paragraphs 1, 2 of Article 250 of the Civil Code of the Russian Federation, when selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the sold share at the price for which it is sold, and on other equal conditions, except in the case of sale at public auction . The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.

In accordance with paragraph 1 of Article 24 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it,” when selling a share in the right of common ownership to an outsider, documents confirming that the seller of the share notified in writing the other participants in the shared ownership of his intention to sell his share, indicating the price and other conditions under which he is selling it.

The application for state registration may be accompanied by documents confirming the refusal of the remaining participants in shared ownership to purchase a share and drawn up by the body carrying out state registration of rights or notarized. In this case, state registration of the right to a share in common property is carried out regardless of the period that has passed since the seller notified the share to the remaining participants in shared ownership.

If the application for state registration is not accompanied by documents confirming the refusal of the remaining participants in shared ownership to purchase the share, the state registrar is obliged to suspend state registration until the expiration of a month from the date the seller of the share notifies the remaining participants in shared ownership, if on the day of filing the application for state registration such period has not expired.

Thus, for state registration of an agreement for the exchange of shares in the right of common shared ownership of a real estate object, it is necessary to submit, in the manner prescribed by law, documents confirming that the owner of the share has notified in writing the other participants in shared ownership of the intention to exchange his share, indicating the price and other conditions , on which it is changed or the co-owners’ refusal of the right of preferential exchange of shares in the right of common shared ownership of a real estate object, notarized or registered in the Office of the Federal Service for State Registration, Cadastre and Cartography in the Krasnodar Territory.

Chief specialist-expert

State Registrar Kochesok E.A.

Purchase and sale

Two sets of documents in this category are drawn up and signed in triplicate for each property, certified by a notary office. Two - for the buyer and the seller. The third is transferred to Rosreestr. The main points for exchanging shares between relatives are as in a standard purchase and sale agreement. Correct descriptions required:

parties;
real estate object along with cost and technical parameters;
transaction procedures;
penalties and force majeure.

PrEP is available at this link.

Mena

A sample document is presented below. It is used to check the text during the process of formalizing the exchange of shares between relatives. To complete the standard procedure, one copy is sufficient, which is submitted to Rosreestr.

With the help of this agreement, it is possible to clarify the special procedure when both objects are not privatized. In this case, it is necessary to prepare the following documents for subsequent transfer to the local administration of municipal authorities:

civil passports of the parties;
existing social rental agreements with official permissions for the right to occupy a certain living space (orders);
certificates about the actual composition of families;
consent of other relatives (owners) to the corresponding exchange of shares;
standard consents of guardianship authorities (for minors and incapacitated family members, registered owners);
written confirmation of the absence of debt for utility services.

This method is convenient because the administration does not in any way check the equivalence of the objects of exchange of shares between relatives. Responsible employees check the correctness of completion and composition of the submitted documents, but do not pay attention to the financial component of the transaction. Valid calculations can be made without notifying government authorities. The fact of payment is confirmed by a receipt. For secure transactions with wire transfers and paper bills, you should use banking services - escrow account and safe deposit box, respectively.

The legal refusal of municipal authorities is permissible in the following cases:

the building (part of the premises) is unsuitable for habitation according to current building codes;
during the period of the transaction, major repairs or demolition of the house are planned (performed);
the property is registered under the “official” category, and therefore cannot be transferred to private ownership;
one of the participants in the exchange of shares suffers from a dangerous disease, sanitary standards prohibit (limit) contacts with others.

You can download the exchange agreement using this link.

Exchange of shares in non-privatized housing

The procedure for exchanging shares in apartments between relatives, when it comes to housing occupied by the parties under social tenancy agreements, occurs in accordance with Art. 72 Housing Code of the Russian Federation. It does not matter, in this case, in which specific settlements both objects of the transaction are located. It could be the same city, or two different ones. Most often, there is an exchange of shares in different apartments , but nothing prevents an exchange between residents in the same apartment, especially when the shares are not equal.

An exchange of the relevant contract (agreement) is drawn up. The document is prepared in advance in three copies, after which the parties sign each of them. It is very important to correctly follow the form of the contract and provide all the necessary information. To do this, the wording of the document should be entrusted to a qualified lawyer.

After signing, the parties keep one copy each, and the third is submitted to the local administration for registration. The consequence of such a transaction is the cancellation of previous social rent agreements. Based on the exchange agreement, the administration enters into a new agreement on the transfer of this housing to new tenants. Accordingly, the application is submitted on behalf of all participants, not only the exchanging parties, but also those who own the remaining shares in the apartments. This procedure takes no more than 10 days from the date of application.

What documents will be required?

Along with the application, the following package of documents is submitted to the administration:

Copies of passports of all participants.
Previous social lease agreements.
Orders for the right to move into apartments.
Permission from the administration to move in.
Certificate of family composition for each apartment.
Written consent of all tenants of this housing.
If minors or incompetent citizens live in any of the apartments, then the written consent of the guardianship and trusteeship authority will be required.
Receipts confirming the absence of arrears in payment of utility services.

Reasons for refusing to issue an exchange permit

It is extremely unpleasant to encounter, after careful preparation of documents, a refusal to carry it out. The administration has the right to refuse to issue permission to the parties to carry out an exchange (Article 73 of the Housing Code of the Russian Federation). The reasons may be:

Any of the premises is not suitable for further residence (it is in disrepair).
There is a court decision establishing the right to use housing.
The house specified in the agreement of the parties is included in the plan for demolition.
The participant in the transaction suffers from a chronic disease that poses a danger to others.
Any of the houses needs major repairs.
Housing is for official use and cannot be the subject of any real estate transactions.

If none of the reasons correspond to your specific case, then the refusal can be challenged in court.

If the shares are not equal

The administration will issue permission for the exchange, without regard to the equality of the shares being exchanged. However, the parties often make an exchange with an additional payment. In this case, the additional payment is a matter of agreement between the parties, which is not recorded in the process of legal registration of the transaction. For example, the parties can enter into any agreement between themselves, according to which one party transfers money to the other party within a specified period. In this case, it does not need to be submitted to the administration. The fact of transfer of money must be recorded with a receipt.

Gift deed

Two documents are notarized. In this case, there is no tax base and corresponding obligations to the state. Calculations are made during the exchange of shares according to a scheme convenient for relatives. Registration is completed according to the standard procedure by registering with Rosreestr.

You can download the deed of gift here.

Notary, USRN, tax office

When choosing any of the options, the transfer of shared ownership is formalized through a notary office. Additional authentication of documents and confirmation of the legal capacity of the participants will prevent unnecessary problems during the consideration of the legality of the transaction in court.

After signing the certified agreement, they begin to register new rights independently (through the regional MFC), or entrust the procedure to a notary. Rosreestr will not complete the registration procedure if errors are found when registering the exchange of shares between relatives. Refusal will be received if there are prohibitions and encumbrances. To ensure that there are no limiting factors, you can receive a detailed certificate upon a standard request. Only after creating a new entry in the Unified State Register of Real Estate database, a real estate transaction is considered fully completed.

Tax on income received during the transaction is paid if relatives wish to exchange shares in apartments even with a slight difference in value. This obligation is absent if the property has been owned for less than three (five) years with registration of ownership rights before (after) 01/01/2016, respectively. The completed declaration in standard form is submitted no later than April 30. next spring after one year of completion of this operation. Tax payments can be made until July 15 inclusive.

For your information! When submitting documents for state registration to the Unified State Register of Taxes, a check is carried out to ensure that there are no tax arrears. The obligations noted above should be fulfilled before the deadlines expire so as not to delay the full completion of the transaction.

Taxation of a share exchange transaction between relatives

In fact, an exchange transaction is the combination of two sales contracts into one. The party receiving income as a result of the exchange transaction is required to pay tax on it. If the obligation to pay tax arises, then the right to receive a tax deduction arises.

When is tax paid?

It is important to understand exactly when parties are required to pay tax, and when they may not do so. Citizens are required to pay income tax in two cases:

The share in the apartment received by the taxpayer under the exchange agreement belonged to the owner for less than 5 years (if the right of ownership arose before 2021, then the period is shorter - 3 years).
The share in the apartment is transferred to the new owner with an additional payment.

Accordingly, if the shares are equal, when their market values (cadastral) are equal, the obligation to pay tax on the income received does not arise, just as you will not have to pay tax on the exchange of shares that belonged to their owners for less than 3 years.

How is tax calculated?

There are a number of features when calculating the amount of tax:

The basis for the calculation is only the difference between the values of the shares.
The additional payment received for the share must be properly declared (by April 30 of the following year after the transaction).
The income received should be declared even in the absence of additional payment when the share was owned for less than 5 years (3 years).

Income tax must be paid by July 15 of the following year after registration of the exchange agreement. However, Rosreestr will not accept documents for registration if the tax is not paid. Therefore, you need to pay it immediately after concluding the transaction and attach a payment receipt to the package of documents submitted to the Registration Chamber.