...

Minors – Children’s Rights in the Sale and Exchange of Apartments

This WordPress post discusses the rights of minors in the sale and exchange of apartments. It explains that while an adult may own a property, the sale or exchange of an apartment by a minor is subject to different standards and regulations. The post outlines that, in most cases, the permission of a court must be sought for the sale or exchange of an apartment by a minor, and there are specific restrictions that must be fulfilled before any transaction can be made. Furthermore, the post mentions that even if the court does grant approval, the minor must still be compensated fairly for the sale or exchange. In conclusion, the post stresses that the rights of minors must always be taken into consideration before any sale or exchange of an apartment can be made.

Recommendation points



The sale or exchange of an apartment, as well as other real estate transactions in general, is one of the topics that cause the greatest number of questions. Moreover, both sellers themselves and, of course, buyers can worry about the correct execution of all documents accompanying the transaction. And the higher the transaction amount, the more the parties fear to become victims of fraudsters or simply face the need to properly reissue papers, collect additional certificates and permits.

In this article, we will not talk in detail about each stage of concluding a transaction for the sale and purchase of real estate, but will only touch on one important point – the rights of children registered in this living space or who own a share in an apartment or house.

The topic of the participation of minors in various real estate transactions in our country became acute in the early 90s and has not lost its relevance since then, which is not surprising – according to statistics, in almost 60% of transactions in the real estate market, one of the participants is a child – either side of the buyer or seller.

“Horror story” for the buyer

A loud and already hackneyed phrase – “Children are our everything!” – when registering the purchase or exchange of an apartment, it acquires special significance and meaning. Minors are the most unprotected category, therefore, it is precisely for the observance of their rights that state authorities are especially vigilant. Note that Russian legislation is extremely tough on the protection of the rights of minors. Their interests and rights are practically elevated to the level of absolute priority and are regulated by numerous legislative acts: the Family Code of the Russian Federation, the Civil Code, the law “On privatization of the housing stock”, the Constitution, the Housing Code and other documents.

However, the same situation has developed in neighboring Ukraine – there the rights of children are protected by the Family Code, the laws “On the Basics of Social Protection of Homeless Citizens and Street Children” and “On Child Protection”, which strictly regulate the process of sale and other transactions with real estate, on which minors.

According to the law, a child, on an equal basis with adults, has all rights, both housing and property – he can inherit or donate real estate or part of it, participate in the privatization of housing, and so on. At the same time, in accordance with Russian legislation, even parents, as well as other legal representatives of a minor child – guardians or adoptive parents, cannot dispose of his property without obtaining the prior consent of the official guardianship and guardianship authorities.

In light of this attitude of the legislation to the protection of the rights of children, potential buyers of real estate where minors are registered are most frightened by the following moment: if the court considers that as a result of the transaction, the rights of the young residents officially registered on the sold or exchanged area were violated , he may declare the transaction invalid.

Minors - Children's Rights in the Sale and Exchange of Apartments Kuzma Petrov-Vodkin. In the nursery. 1925

Moreover, this rule applies not only to those apartments where minors are the owners, but also to those real estate objects where the children are simply registered. The most important point is that when concluding transactions with real estate objects in which children are registered, permission from the guardianship and guardianship authorities is not required under the current legislation.

At the same time, the Decree of the Constitutional Court of Russia dated June 08, 2010 No. 13-P “On the case of checking the constitutionality of paragraph 4 of Article 292 of the Civil Code of the Russian Federation” recognizes that if the terms of the transaction violate the housing rights of a child under parental care, this is included in direct contradiction with the Constitution of the Russian Federation. Such a contradiction – if the child is homeless or received housing that does not meet sanitary or other standards – may become the reason for the invalidation of the transaction.

To avoid such an unpleasant situation in all respects, it is possible only by obtaining the preliminary written consent of the guardianship and guardianship authorities at their place of residence for the discharge of a minor, as well as the sale or exchange of housing. The seller, that is, the owner of the house or apartment at the moment, will deal with this issue during the preparation of documents for implementation. And the buyer needs to remember that when studying the documents for the apartment they like, it is worthwhile to immediately clarify whether minors are registered in this living space, who exactly is the owner of each share of the housing, and also require permission from the board of trustees. Otherwise, that is, in the absence of this document, the transaction becomes too risky..

“Headache” for the seller

Imagine that you are not a buyer who just needs to check the availability of all the necessary papers, namely a seller who wants to sell an apartment that belongs to you personally or to your family.

What steps do you need to take to get money profitably and, preferably, quickly? You will say – to evaluate the apartment, that is, to monitor the market for such real estate objects, collect certificates from the BTI, the passport office, the management company, pay utility bills, and so on. However, if a part of the apartment belongs to the child by inheritance, donation or participation in privatization, the first step towards selling the apartment should be a visit to the guardianship and surety authorities..

The seller will have to convince the officials that the sale of the apartment will not affect the child’s interests, that is, he will not remain on the street, but will receive an equivalent living space in return. In addition, parents (guardians, adoptive parents) will have to prove that after the sale of this housing, the value of the property of a minor who owns a share in an apartment or house will not decrease..

Minors - Children's Rights in the Sale and Exchange of Apartments Boris Kustodiev. The artist’s children. 1913

In this regard, problems may arise, for example, in the case of selling an apartment in Moscow for the subsequent purchase of a country house in the suburbs or in another region. The cost of an ordinary apartment in the center of the capital is incommensurate with the prices of real estate in cities near Moscow, and even more so in other regions. So, even if the sale of a cramped two-room apartment will allow you to purchase a spacious house where the child will have his own room, the guardianship and surety authorities may not issue a permit due to the fact that the price of new real estate is much lower. In this case, parents may try to give other arguments – the ecological situation in the center of the metropolis, proximity to relatives, a suitable climate, improved living conditions, the presence of a better paid job for parents, a school and a kindergarten in a new place, a large area of ​​new real estate, and so on. However, government agencies rarely take their word for it, and the best argument would be to open a current account in the name of a minor, on which a part of the cost of the sold apartment will be deposited due to the child, as one of the parties to the transaction. Such an argument can convince officials better than any unfounded assurances.

An important point – in the light of the above requirements, it may seem that parents will have to buy new housing, and no worse than the old one even before the sale of the apartment. In practice, such a turn of events is often simply unrealistic – it is with the proceeds from the sale that a new house or apartment is usually purchased. Therefore, guardianship authorities most often require the simultaneous acquisition of new housing with the same or larger area..

If the child was not the owner of the home, but was simply registered in the area being sold and subject to exchange, then the guardianship authorities will immediately require him to register in a new living space, either acquired or already owned by one of the parents (guardians, adoptive parents). Actually, in this case, the passport office will not simply write the minor out of the apartment without the permission of the guardianship and surety authorities.

A few more nuances

An important point concerns the privatization of housing where the child is registered – parents cannot write a refusal to participate in privatization for a minor, so in any case, the corresponding share in an apartment or house should become the property of a child registered in the privatized residential area.

Guardianship authorities usually require both parents to appear for permission to discharge or sell “home with a child”. If one of them is located abroad or in another region, it is necessary to provide his written permission to carry out a real estate transaction, certified by a notary or at the consulate. The same applies to a parent who cannot personally come to the guardianship authorities due to a serious illness. If the whereabouts of the “prodigal” parent is unknown at the time of obtaining permission, you will have to declare a wanted list and wait until the “loss” is found. The permission of the second parent is not required only in case of deprivation of his parental rights, recognition by the court as missing, death, or if the father was recorded only from the words of the mother.

If one of the parents deliberately ignores the invitation to appear at the guardianship authorities to obtain permission to sell the apartment and discharge the child, requires money for his signature, the second can prove the malicious intent of his actions by providing witnesses and honestly informing representatives of the board of trustees about all the circumstances of his family life. The decision in this case will be made individually – if the guardianship authorities recognize that the transaction is in the interests of the child and, as a result, his living conditions will be improved or the value of the property will be increased, then the permit can be issued without the consent of the second parent, who obstructs for personal reasons.

Minors - Children's Rights in the Sale and Exchange of Apartments Nikolay Bogdanov-Belsky. Children in the window

Obtaining permission from the guardianship authorities for the sale or exchange of housing, the share in which belongs to the child, is necessary even if at the moment the minor does not live in this apartment, but is registered in a different area and even in another region or state.

Registration of a child under the age of 10 is possible only at the place of registration of one of the parents, so it will not work to register the baby with friends and acquaintances in order to obtain permission to remove him from the apartment being sold..

If the financial capabilities of the parents allow them to first purchase new housing and then sell the old apartment, it is more expedient to immediately register the property only for themselves and after that allocate the corresponding share to the minor. Otherwise, a situation arises when the child owns two shares in different apartments, and it will be difficult to obtain permission from the guardianship authorities to deprive a minor of one of them – there will be nothing to provide in return.

To register a child in an apartment where one of the shares belongs to his mother or father, the consent of the other shareholders is not required.

An apartment or house that belongs by inheritance or as a result of privatization to orphans or children left without parental care and sent to boarding schools and orphanages for full state support, is assigned to minor owners and its safety is monitored by the guardianship and surety authorities. Any transactions with such housing are carried out exclusively with their consent. The corresponding order is signed by the local authorities and sent to the HOA at the location of the housing, the management company, the BTI and the Federal Registration Service.

Documents

To obtain permission from the guardianship and trusteeship authorities for the sale or exchange of housing, the share in which belongs to a minor, the following documents must be submitted to the commission:

  • a statement signed by both parents;
  • the child’s consent (if he is already 14 years old);
  • an extract from the house book and personal account – must be originals;
  • copy of birth certificates of the minor owner. It is also necessary to demonstrate the original of this document;
  • documents that confirm ownership of all residential premises involved in the transaction. They can be a certificate of ownership of a dwelling, a contract of sale or exchange, a certificate of the right to inheritance, and so on;
  • BTI certificates, where the cost of living space will be indicated;
  • cadastral (floor) housing plan;
  • if one of the parents cannot be present in person, documents are required confirming his consent – a notarized permission or a certificate of his death, declaration of missing persons, and so on;
  • a certificate from the tax office about the absence of housing tax arrears.

Often, the guardianship authorities may require additional documents, for example, a certificate from the EIRTS about the debt for an apartment, a certificate of the technical condition of housing and documents for the purchased house or apartment..

All of the above documents must be correctly executed and have not expired at the place of demand.

The commission of the guardianship authorities considers each case on an individual basis and can often make concessions if it considers that the transaction is in the interests of the child (for example, instead of a city apartment, a house is purchased in a rural area, since the child has asthma and needs fresh air). Or, on the contrary, to present additional requirements in case of doubts about the honesty and adequacy of the parents.

Minors - Children's Rights in the Sale and Exchange of Apartments Balthus. Children. 1937

As you can see, the presence of a minor owner in an apartment or house, as well as his registration, significantly complicate the process of concluding purchase and sale transactions. On the one hand, it may seem that such strict requirements are unnecessary – there are so many problems because of one baby! However, if you remember how many quite responsible parents fell victim to fraudsters when concluding real estate transactions, how many parents simply tried to solve their financial problems by selling an apartment, without thinking about what the child would be left with in the future, if we count the number of dysfunctional families where one of the parents suffers from addiction and may decide to sell housing to meet his needs – the participation of the guardianship and surety authorities does not at all look like an unnecessary measure to protect the rights and interests of children.

Rate the article
( No ratings yet )
Recommender Great
Tips on any topic from experts
Comments: 2
  1. Avery Simmons

    As a concerned reader, I would like to know what measures are in place to protect the rights of minors in the sale and exchange of apartments. Are there specific laws or regulations ensuring their best interests are taken into account? How are their rights to a safe and stable living environment protected during such transactions?

    Reply
    1. Joseph Parker

      In many countries, there are laws and regulations in place to protect the rights of minors in the sale and exchange of apartments. These laws typically require that a legal guardian or trustee be appointed to act on behalf of the minor in any transactions involving real estate. Additionally, there are usually provisions that ensure the best interests of the minor are taken into account, such as requiring court approval for the sale of a minor’s property.

      The rights of minors to a safe and stable living environment are also protected through these laws and regulations. In some cases, there may be specific requirements for the condition of the property or for certain disclosures to be made to potential buyers regarding any hazards or issues that could affect the safety of the property.

      Overall, the goal of these measures is to ensure that minors are not taken advantage of in real estate transactions and that their rights to a safe and stable living environment are upheld. It is important for all parties involved in such transactions to be aware of and comply with these laws to protect the rights of minors.

      Reply
Add comments