What is a barter agreement with the city?

Chapter 32. DONATION

Article 567. Barter agreement
1. Under an barter agreement, each party undertakes to transfer one commodity into the ownership of the other party in exchange for another.

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2. The rules on purchase and sale (Chapter 30) are applied to the exchange agreement, 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.

Article 568. Prices and expenses under an exchange agreement

1. Unless otherwise follows from the exchange agreement, the goods to be exchanged are assumed to be of equal value, and the costs of their transfer and acceptance are borne in each case by the party that bears the corresponding obligations.

2. In the event that, in accordance with an exchange agreement, the goods exchanged are recognized as unequal, the party obligated to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices immediately before or after fulfilling its obligation to transfer the goods, unless the procedure is different payment is not provided for in the contract.

Article 569. Counter-fulfillment of the obligation to transfer goods under an exchange agreement

In the event that, in accordance with the barter agreement, the terms for the transfer of the exchanged goods do not coincide, the rules on counter-fulfillment of obligations are applied to the fulfillment of the obligation to transfer the goods by the party who must transfer the goods after the transfer of the goods by the other party (Article 328).

Article 570. Transfer of ownership of goods exchanged

Unless otherwise provided by law or the exchange agreement, the ownership of the exchanged goods passes to the parties acting as buyers under the exchange agreement, simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties.

Article 571. Liability for the seizure of goods acquired under an exchange agreement

The party from whom the goods acquired under an exchange agreement are seized by a third party has the right, if there are grounds provided for in Article 461 of this Code, to demand from the other party the return of the goods received by the latter in exchange and (or) compensation for losses.

Article 572. Donation agreement

1. Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party .

If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. The rules provided for in paragraph 2 of Article 170 of this Code apply to such an agreement.

2. A promise to transfer a thing or property right to someone free of charge or to release someone from a property obligation (promise of donation) is recognized as a gift agreement and binds the promisee if the promise is made in the proper form (clause 2 of Article 574) and contains a clearly expressed intention to commit future gratuitous transfer of a thing or right to a specific person or release him from property obligations.

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A promise to donate all of one’s property or part of one’s entire property without indicating a specific object of donation in the form of a thing, right or release from an obligation is void.

3. An agreement providing for the transfer of a gift to the donee after the death of the donor is void. The rules of civil inheritance law apply to this type of gift.

Transfer of ownership of goods exchanged under an exchange agreement

The transfer of ownership of the exchanged goods occurs simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties, unless otherwise provided by law or contract.
At the same time, the legislator gives the parties the opportunity to establish other conditions for determining the moment of transition and emergence of this right.

Can't reduce the price

In a barter transaction that contains the terms of the purchase and sale agreement, you can demand that the counterparty who supplied the goods of inadequate quality reduce the price (clause 1 of Article 475 of the Civil Code of the Russian Federation). This cannot be done within the framework of an exchange agreement. You can only demand that the counterparty correct the defects free of charge or compensate for the costs of correcting them (clause 9 of Review No. 69).

The parties have the right to refuse to fulfill the barter agreement. This can be done by the customer of services or the contractor without going to court (Article 782 of the Civil Code of the Russian Federation). Moreover, this is possible even if the contract contains a ban on unilateral refusal. This condition does not comply with the law, and the courts do not take it into account.

It is possible to unilaterally refuse to execute a barter agreement only if such a right is directly established in the contract, since by default the law does not give such a right to the parties.

The moment of transfer of ownership of the transferred goods depends on the type of contract. Both in the purchase and sale agreement and in the exchange agreement, this issue can be resolved so as not to apply the general rule on the transfer of ownership, which will operate by default. Thus, as a general rule, under an exchange agreement (goods for goods), ownership passes to both parties only after they both have transferred their goods to each other (Article 570 of the Civil Code of the Russian Federation). Under a purchase and sale agreement (goods for services or work), ownership rights are transferred at the moment of transfer of the thing (clause 1 of Article 223 of the Civil Code of the Russian Federation).

The possibility of canceling a gift is a big disadvantage for the recipient.
When the deed of gift is terminated or the transaction is declared invalid, the donee is obliged to return the object of the donation (clause 5 of Article 578 of the Civil Code of the Russian Federation, clause 2 of Article 167 of the Civil Code of the Russian Federation).
Such agreements can be easily challenged in court in some cases.
Lack of opportunity for the donor to establish encumbrances on the object of donation.
In the absence of close family ties between the parties to the transaction, the donee pays personal income tax (NDFL).
Pros and cons of the exchange agreement Ch. 31 of the Civil Code of the Russian Federation regulates such a transaction as barter. This agreement implies the transfer of ownership of goods in exchange for another from one party to another. In this case, each of the parties is a seller (Article 567 of the Civil Code of the Russian Federation).

Transfer of property Transfer deed is not required Mandatory under the transfer and acceptance act Availability of taxation For the donor - no.

For the donee - yes (except for cases of exemption from payment). For both sides - yes. But there are a number of features under which this tax may not be paid. Exchange or donation of residential premises As a rule, when speaking about transactions for the alienation of real estate, interested parties mean a room, apartment, house, i.e. living space.

Based on the above analysis of contracts for the exchange and gift of real estate, as well as taking into account the peculiarities of the alienation of residential premises, it is necessary to highlight the following:

the object of the transaction will be the residential premises itself, the individual characteristics of which must be reflected in the contract.

Giving and barter

Attention

Within three years after its conclusion, any of the parties can change their mind and make claims against the counterparty, seeking not only its cancellation, but also reimbursement of their expenses. After weighing all the pros and cons, make a decision. Requirements for the form The agreement for the exchange of housing is drawn up in writing. Notarization is carried out at the request of the participants.

What is included in the contract? Participants indicate the individual characteristics of the exchanged apartments, things, the amount of additional payment, the procedure for making it, the timing of relocation, and other details important for the parties. Essential conditions:

subject: which particular apartment (indicating the address, technical characteristics) is changed to another (also indicating individual characteristics) or things (with individualization);
amount of surcharge.

Without specifying these conditions, the agreement is considered not concluded.

When a person sells an apartment to another person and intends to buy from a third person, this is also associated with risk. Money is subject to inflation, and in recent decades we have encountered cases where it was sudden and rapid.

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In the nineties, in 2008, 2014, we had situations where, shortly after the sale, it was impossible to buy housing of the required quality with the proceeds from a previously sold apartment. On the other hand, apartments during a crisis are difficult to sell for an acceptable amount, since buyers do not have enough cash for this.

When moving, a person is faced with the problem of adequately assessing the housing he is purchasing: he does not know enough about the features of life in another city. If you rely on prices published in newspapers, you may get a different situation on the spot.

Petrov in court managed to declare this deal invalid, as a result of which Ivanov and Petrov returned to their previous living quarters. The negative aspects of using such a transaction include the following:

In cases where the goods are not of equal value, the party providing the property of lesser value will have to pay the difference in prices.
The transfer of ownership of the exchanged goods occurs simultaneously after the parties fulfill their obligations to transfer the goods (with the exception of real estate).
Since the rules on purchase and sale apply to exchange, the beneficiaries of the transaction are payers of personal income tax.
The goods transferred to the other party are the common joint property of the spouses.

Exchange or donation of real estate The most common transactions in civil circulation are transactions with real estate (i.e.

It turns out that in exchange for a real apartment, the owner can only receive a transfer of ownership rights to virtual housing. The danger is too great. Power of attorney.

If you are faced with a situation in which it is not the owner of the apartment who is ready to exchange living space with you, but a person acting by proxy, for example, the only heir of a grandmother who is ill and cannot handle the exchange herself, then it is possible that you are dealing with a fraudulent scheme .

The risk is that the principal could have already died by the time of the transaction.

Having a power of attorney in hand, the attorney, on completely legal grounds, before the end of the 6-month period for the heirs to take over their rights, receives from the BTI a certificate of characteristics for the alienation of this apartment and can conclude an exchange transaction. Although, in accordance with Art. 248 of the Civil Code, after the death of the principal, he did not have the right to dispose of his property.

Exchange agreement (equivalent, without additional payment) Execution of a document for the exchange of apartments is carried out in free written form and must contain the following data:

identification data of each participant in the transaction (passport data);
detailed descriptions of residential properties included in the transaction (according to BTI data);
the cost of residential properties determined by the two parties to the transaction based on a personal agreement;
provided necessary data on the package of documents, serving as evidence of the existence of rights to own residential property subject to exchange;
providing written confirmation from both parties that the apartments inspected are suitable in terms of their quality;
conditions for transferring additional payment to the party.

Further, the apartment exchange agreement contains the procedure for the transfer of residential real estate and other data. Options for agreements When the homeowners include minors, the permission of the guardianship authority is required to conclude an agreement (Article 292 of the Civil Code of the Russian Federation).

in the event of a claim being brought against the tenant for termination (or modification) of a social tenancy agreement for residential real estate;
the apartment is the subject of collateral;
the apartment is under arrest;
the apartment is the property of a special fund and is not subject to an exchange procedure;
the right to own housing is disputed in court;
the apartment is located in a residential building intended for demolition or its comprehensive refurbishment for other purposes.

DEADLINES. LIMITATION OF ACTIONS

The main features of the barter agreement are:

consensuality, that is, an agreement is concluded by the parties only on the basis of consent;
reciprocity;
retribution.

The subject of the exchange agreement is goods free from encumbrance. It is the subject of the contract that is the most important essential condition of the contract.

In the case where it follows from the contract that goods of unequal value are exchanged, the party transferring the goods whose price is lower is obliged to pay the difference in prices for these goods. Payment of the difference in prices is made before or immediately after the transfer of the goods that have a lower price. The contract may also provide for a different compensation procedure.

The transfer of ownership to the parties to the exchanged goods occurs simultaneously, after both parties have fulfilled their obligations to transfer the goods. The term of the contract is always determined by the parties themselves. In cases where the exchange of goods was not simultaneous and the terms of transfer do not coincide, fulfillment of the obligation within a different time period is considered a counter obligation.

An oral exchange agreement is possible only in two cases:

if the agreement is concluded between citizens for an amount less than 10 minimum wages;
between any subjects, if the contract is executed immediately upon its conclusion.

All other cases of concluding a contract require written form.

Preparation of contract

For the convenience of our users, we have developed and made available for download a standard sample exchange agreement.

When drawing up a contract yourself (if you wish), you should be guided by the following approximate layout of the structural elements of the contract:

date and place of drawing up the contract;
names of counterparties. For individuals, you must provide your full name, address and passport details. In relation to legal entities, the name, legal status, full name of the person signing the agreement and notifications regarding his powers are indicated;
an introductory phrase regarding the agreement reached by the parties on the exchange of goods;
description of the item of exchange, that is, the product being exchanged. The description must be detailed, therefore, if a large volume of heterogeneous goods is transferred, it is advisable to document its list and main characteristics in an annex to the contract;
information about the counterparties’ ownership of the goods they offer for exchange;
the price of the goods being exchanged and notifications of additional payment if the goods are not of equal value;
deadline for fulfilling obligations to transfer goods;
methods and terms of payment in case of unequal value of goods;
liability for failure to fulfill obligations and penalties;
signatures of counterparties (or signatures and details of legal entities).

The agreement is drawn up in two copies - one for each of the counterparties. The same rule applies to appendices to the contract.

Parties to the exchange agreement

The legislation does not indicate any special requirements for the subjects of the exchange agreement. But since the transfer of a thing by one person to another in exchange for another thing is a form of disposal of property, then each of the parties must be the owner of the things being exchanged. Or have another property right, including the right to dispose of the relevant property.

Subjects can be both individuals and legal entities: for example, state or municipal enterprises. In such cases, the legal entity also transfers its rights, namely, the right to manage and the right to conduct business. It should be noted that legal entities can enter into an exchange agreement not only with other legal entities, but also with individuals.

How to draw up an exchange agreement with additional payment for an apartment

Minor children;
Those who are in a socially dangerous situation or require state guardianship, former family members of the owner of the property;
Current or former family members who are incompetent or recognized by the court as partially incompetent;
Or assigning real estate to orphans or children left without parental care.

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State registration in Rosreestr of an exchange transaction with additional payment for housing is mandatory for its completion. After registering the apartment, the rights to the new property are transferred to the other party to the transaction, which is entered into the Rosreestr. Without registration, exchange is considered illegal.

GENERAL PROVISIONS ABOUT THE AGREEMENT

The number and name of sections of the agreement entirely depend on the subject of the agreement. Thus, in a land exchange agreement the following sections are required:

subject of the contract;
encumbrances of the exchanged plots;
restrictions on the use of exchanged plots;
rights and obligations of the parties;
liability of the parties;
final provisions;
addresses and bank details of the parties.

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To ensure that the contract is drawn up correctly and competently, it is best to use a template to fill out. As with any other agreement, the time and place of conclusion and the passport details of the parties are indicated. To complete the agreement, both parties must sign. Also, the documents necessary in each individual case must be attached to the contract.

Contents and essential conditions

An essential condition of an exchange agreement is the subject of the agreement, i.e., the type of goods that will be exchanged. Without indicating the name of the exchanged items in the document, the contract cannot be recognized as officially concluded.

It should be noted that the exchange agreement provides for the equality of both parties - the seller and the buyer. At the same time, the parties also have equal responsibilities before the law. Persons entering into an agreement transfer goods to each other that have equal value. They must also spend the same amount of money on transferring and receiving ownership of the goods.

If one of the parties receives a product with a defect or other defects, then the other party to the contract becomes liable, similar to that provided for in the sale and purchase.

If the goods received under an exchange agreement are withdrawn by a third party, the injured party has the right to demand that the other party return the goods received during the exchange and compensate for losses (Article 571 of the Civil Code of the Russian Federation).

Equivalence and inequality

We said above that goods under an exchange agreement are the equivalent of money. In the literal sense, this will only be correct when exchanging goods of equal value. In this regard, the similarity of the barter agreement with the purchase and sale agreement is once again confirmed.

Thus, in accordance with the provisions of the Civil Code of the Russian Federation (Article 568 of the Civil Code of the Russian Federation), the party that offers goods of lesser value for exchange must (if there is mutual consent of the counterparties) pay extra, that is, in fact, buy that part of the offered goods, the cost of which is not covered by the counter item.

Price formation

It is not at all necessary to indicate the price in the exchange agreement, but it may be necessary in order to correctly carry out accounting and thus avoid problems with the tax service. The value of goods for exchange is usually assessed in two ways. An internal assessment can be used, without the involvement of third parties and made on the basis of accounting data, the cost of acquisition, as well as the cost of identical items.

An independent assessment is also used, which is carried out by appraisers, guided by the data of the contract or other executive and judicial acts.

Is it worth buying an apartment obtained under an exchange agreement with the city with ownership less than 3 years old?

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution. In this case, the limitation period for a person who is not a party to the transaction, in any case, cannot exceed ten years from the date of commencement of execution of the transaction.

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Marina, good afternoon! I will add to what my colleagues have said regarding the taxation of income from the sale of an apartment, which is paid by sellers. In this case, since the price of the apartment was indicated in the exchange agreement and the exchange was recognized as equivalent, they have the right to reduce the tax base from the sale of the apartment not by 1 million tax deductions, but by 7 million of the value of the apartment given up under the exchange agreement, previously acquired during the privatization process, for example . cm.

Barter agreement: taxation

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In accordance with Article 658 of the Civil Code of the Russian Federation, if goods of equal value are exchanged, the exchange agreement is not subject to taxation. If the parties agree to exchange unequal goods and one of the parties pays monetary compensation, this amount is considered income and tax must be paid on it. It is 5% of the difference in the cost of the goods.

In order not to pay taxes legally, the amount of compensation must be included in the deduction (Article 220 of the Tax Code of the Russian Federation). In addition, when preparing documents, the parties need to pay a state fee. Its value directly depends on the type and subject of the contract.

The price of the goods exchanged under the barter agreement

In fact, replacing one apartment with another can be called differently - exchange and barter. Although these words have the same root, they have completely different meanings in housing transactions.

What is what

Exchange of housing is a transaction in which two parties transfer to each other objects of equal value in their opinion, the owners of which they are. In this case, the rights to the property are transferred to each party, similar to a purchase and sale transaction.

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Housing exchange is a transaction under which tenants of state-owned housing exchange apartments and renew rental contracts.

In this case, the consent of the lessor must be obtained, and certain mandatory conditions must be met.

If you want to find out how to solve your particular problem, call: Moscow, St. Petersburg 7 (812) 313-26-64.

The most basic difference is that in my case the housing must be owned. That is, one owner transfers his apartment to another under an agreement, then the transaction is registered in Rosreestr, and the certificates of ownership are redone for the new owners.
During the exchange, housing is municipal; people live in it under a rental agreement. The exchange of social housing is formalized differently - after registering the transaction in Rosreestr, landlords re-issue tenancy agreements for new residents. In this case, only the right to use the apartment passes to the new owners, as was the case with the previous housing.
You cannot exchange municipal housing for your own and vice versa.
Exchange and barter are governed by different laws. The exchange of housing refers to transactions that are controlled by the Civil Code (Chapter 31), and the exchange is carried out in accordance with the Housing Code (Article 72).

The exchange agreement is drawn up in writing, and it must contain the following information:

data of both parties (full name, passport details, registration);
information about the exchanged housing (name, address, area, cost);
on what basis the apartments belong to the parties (most often the number of the certificate of ownership and the agreement under which the apartment was received);
Additionally, you can indicate the features of both apartments - on what floor it is located, the type of house (panel, brick and others),
the presence of a balcony or basement, how many rooms, what kind of heating, what kind of built-in appliances and furniture remain, and others;
It is worth mentioning as a separate point that the apartment is not under arrest or pledged, there are no encumbrances;
a mandatory point - the contract must contain a list of people who had the right to the old apartment (in the new apartment they must have exactly the same rights);
the period during which the parties must vacate the apartments and transfer them to each other.

These clauses are included in every barter agreement. But deals are different, so there are some additional conditions

If additional payment is needed

It is not always possible to find apartments of equal value. In this case, the party whose housing costs less must pay the other party the difference. Moreover, the additional payment can be not only money. You can also transfer securities or some other property.

All this must be indicated in the contract. Sometimes people do not want to pay tax, and they ask not to indicate the amount of the surcharge in the contract. They write that the apartments are of equal value. This is dangerous because after registering the transaction, you may no longer receive the additional payment.

In addition, if the difference in the cost of housing is too obvious, this issue will definitely be of interest - first to the authorities registering the transaction, and then to the tax authorities.

For example, the parties exchange a one-room apartment in an old building for a two-room apartment in a new building, and even in good repair. The contract states that the apartments are of equal value. Obviously, such a transaction may raise suspicions, which will entail various delays and troubles.

It is better to indicate exactly the amount of additional payment in the contract

Additionally, sanctions can be provided in case the additional payment is not paid on time. For example, a certain percentage of the total amount for each day of delay.

In this case, the contract is drawn up as usual. Instead of information about the apartment, information about the share in the apartment is indicated. In this case, the size of the share should be clarified.

An important nuance is that barter is equivalent to purchase and sale, so a share in the apartment must first be offered to the other owners of this apartment. A document confirming this must be attached to the contract. For example, notarized consent of other owners for sale or exchange.

If it is difficult to obtain such consent, you can go another way. By law, the owner must notify the other owners in writing that the share is being sold.

If after a month there is no response, a copy of the letter with a mark on the date of receipt will be proof that all the requirements of the law have been met.

In this case, the consent of the guardianship authorities will be additionally required. To obtain such consent, you will have to prove that the children are moving to better conditions. Also, according to the exchange agreement, children must receive the same number of meters as they owned in the old apartment, or more.

It is better to indicate in a separate clause in the contract that the consent of the guardianship authorities has been received. The details of this consent are also indicated.

In this case, the contract must necessarily indicate information about the site:

cadastral number;
land area;
the purpose of the land on which it is located;
If there are any buildings on the site, indicate them.

Also attached to the contract is a drawing on which the required area is indicated.

In conclusion, it is worth noting that in terms of taxes, an exchange agreement is equivalent to a purchase and sale agreement. This means that the parties will have to account for their “sold” apartments.

If the old apartment belonged to a person for more than 3 years, there is no need to submit a declaration. If it is less, you will have to report.

Dear readers, the information in the article may be out of date, please take advantage of a free consultation by calling: Moscow, St. Petersburg or using the feedback form below.

3 Comments

A meeting with the seller’s wife (husband) is necessary, since in any case they will be required to agree to the transaction. When concluding a transaction, require the consent of your spouse in any case (an apartment was purchased during or before marriage), including from your ex, since the absence of such consent may be a reason for legal disputes.

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution.

Marina, good afternoon! I will add to what my colleagues have said regarding the taxation of income from the sale of an apartment, which is paid by sellers. In this case, since the price of the apartment was indicated in the exchange agreement and the exchange was recognized as equivalent, they have the right to reduce the tax base from the sale of the apartment not by 1 million tax deductions, but by 7 million of the value of the apartment given up under the exchange agreement, previously acquired during the privatization process, for example . cm.

The question was answered over the phone. Raisa Gerasimova. I filed a complaint with the developer, he told me that he was not against changing the apartment, only if the justice would allow it. Can justice prohibit the exchange of apartments? The question was answered over the phone. Ekaterina Alexandrova.

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Moscow, as recorded in the Unified State Register of Rights to Real Estate and Transactions with It dated February 21, 2011 No. 342/4.1.4. The total area of Apartment 2 is 70 (Seventy) square meters. m, including living area – 67 (Sixty-seven) sq. m. m. Apartment 2 consists of three rooms, located on the thirteenth floor of an apartment building, at the address: 104055, Moscow, st.

Zheleznodorozhnaya, 63, apt. 2.1.5. Apartment 2 belongs to Party 2 on the basis of the purchase and sale agreement No. 1 dated July 10, 2014, which is confirmed by the certificate of state registration of rights dated July 11, 2014, series 75 AM No. 476904, issued by the Office of the Federal State Registration Service, cadastre and cartography of Moscow, which was recorded in the Unified State Register of Rights to Real Estate and Transactions with It dated July 11, 2014 No. 154/4.1.6.

Thus, when selling an apartment received under an exchange agreement within the framework of a program for the resettlement of housing subject to demolition, a tax is paid in the amount of 13% of the amount exceeding 1 million rubles, or of the difference between the income from the sale of the specified apartment and the amount of actual costs for its acquisition.

At the same time, there is no provision for determining the period of ownership of the apartment, taking into account the period of ownership of the previous housing (Clause 17.1, Article 217 of the Tax Code of the Russian Federation). Thus, in the case of resettlement of dilapidated (subject to demolition) housing owned by the taxpayer, only the period of ownership of the new apartment is taken into account.

Search for the second exchange participant.
Drawing up an exchange agreement.
Preparation of a package of documents for registration.
Payment of state duty.
Obtaining an extract from the Unified State Register of Real Estate confirming ownership.

Often such transactions are concluded between relatives. But if you need to exchange housing, but there is no suitable one for the transaction, specialized real estate agencies can help.

When drawing up an exchange agreement, it is necessary to clearly state the terms of the transaction. If the objects are of equal value, then it will be important to indicate the period for entering into new rights. When the exchange is unequal, the text of the document indicates the cost of the compensation payment.

When items have different values and one party pays compensation, this amount is recognized as income and is taxed. Its size will be 13% of the difference between the cost of objects. You can avoid payments by filing a tax deduction with the Federal Tax Service or at your place of work.