What is real estate exchange and how is it beneficial for the persons who have concluded the contract? How to conclude an exchange agreement under the Civil Code of the Russian Federation - conditions, sample Agreement for the exchange of real estate between legal entities

Housing exchange is not the most common option for changing an apartment or house. However, in some cases it is the best option. More often such transactions are made by close relatives, friends, acquaintances.

Do not confuse the exchange agreement with the exchange of an apartment. The latter simply provides for a change of residence without taking ownership (social rental housing, for example).

If, as a result of the exchange, the payment is not money, but property rights to real estate, then this is an exchange.

In Art. 567 of the Civil Code of the Russian Federation sets out the concept of an exchange agreement - this is a kind of real estate transaction, as a result of which the owners exchange housing.

A priori, this exchange should be equivalent, although the text may indicate otherwise.

The nuance of such an agreement is the legal status of the parties - each of them simultaneously acts as both a buyer and a seller.

The fact of the exchange of housing is confirmed by the conclusion of a written agreement between the parties. The document is drawn up as a civil law agreement.

At its core, it is the same with its inherent moments:

• payment for housing is not money, but property rights, into which each of the apartment owners enters upon the entry into force of the contract;
• the exchange agreement is considered executed after the registration of ownership of the premises, accompanied by the receipt of new, and other documentation.

In cases where the exchange is unequal, the transaction can no longer be considered a true "barter", since one of the parties receives some profit. All these nuances are also prescribed in the contract.

Such transactions, as well as, are regulated by the norms of the Civil Code of the Russian Federation.

In what cases is it beneficial to conclude a contract?

The main reasons that prompt homeowners to conclude can be considered:

• desire to improve their living conditions with minimal cost time;
• trying to save money on taxes.

The latter is often the root cause of bartering. The fact is that in an equivalent exchange, when the property of the owners suits both parties and their value is equal, state tax is not paid.

Even if the property is not of equal value, the deductions will be significantly lower. Since it involves a deduction from the profit received, it will not be charged from the total estimated value, but only from the difference.

Necessity payment of personal income tax occurs only for those owners who own housing less than 3 years. And it does not matter how the owner entered into the rights: inheritance.

During the tenure less than 3 years you can use, prescribed in Art. 220 of the Tax Code of the Russian Federation.

Transactions between close people of unequal apartments often occur with an additional payment “in an envelope”, when the amount of profit from the sale does not appear anywhere at all.

In practice, the conclusion of such agreements is carried out most often between relatives or friends.

It is very difficult to find an outsider who owns a home who is satisfied with your apartment, and whose property you like.

Nuances in the execution of the contract

Such a document is concluded exclusively by the owners of real estate. Its main points are spelled out in Art. 567 of the Civil Code of the Russian Federation.

Video: Substitution of a sale and purchase agreement with an exchange agreement

The video tells about a common method of fraud in concluding real estate transactions, when a real estate exchange agreement is formally replaced by a sale and purchase agreement. What is the deception and what legal consequences can come for the parties to such a transaction?

Real estate exchange agreement _________________________ _________________________ _____________________________, represented by _____________________________, acting on the basis of _________________________, hereinafter referred to as "Party 1", on the one hand, and _________________________, represented by _________________________, acting on the basis of _________________________, hereinafter referred to as "Party 2", on the other The parties, collectively referred to as the "Parties", have entered into this agreement as follows: 1. Subject of the agreement 1.1. Party 1 undertakes to transfer to Party 2 the ownership of the real estate object, named in this agreement as Object 1, and Party 2 undertakes to transfer to Party 1 in exchange the real estate object, named in this agreement as Object 2, and collectively referred to as - Objects. 1.2. Object 1 means an apartment located on the _________________________ floor _____________________________ -storey building , consisting of _________________________ rooms, having a total area of ​​_________________________ sq. m, including residential - _________________________ sq. m. The specified apartment belongs to Party 1 on the basis of ownership on the basis of _________________________ from _________________________ N _____________________________, which is confirmed by an extract from the Unified State Register of Real Estate No. _________________________, issued by _________________________. The ownership of the apartment is registered in the Unified State Register of Real Estate _________________________, registration record number _____________________________. The cost of the apartment is _____________________ rubles. 1.3. Party 1 brings to the attention of Party 2, and Party 2 takes note that at the time of the conclusion of this agreement, the persons provided for in Art. 558 of the Civil Code of the Russian Federation, retaining the right to use and live in the apartment, is not available. 1.4. Party 1 informs Party 2, and Party 2 takes note that at the time of the conclusion of this agreement in relation to Object 1 there are the following encumbrances (restrictions on use): _________________________ in accordance with _________________________ for a period of _________________________. 1.5. Object 2 means an apartment located on the _________________________ floor of a _________________________-storey building, consisting of _________________________ rooms, having a total area of ​​_________________________ sq. m, including residential - _________________________ sq. m. The apartment belongs to Party 2 on the basis of ownership on the basis of _________________________ from _________________________ N _____________________________, which is confirmed by an extract from the Unified State Register of Real Estate No. _________________________, issued by _________________________. The ownership of the said apartment is registered in the Unified State Register of Real Estate _________________________, registration record number _________________________. The cost of the apartment is _____________________ rubles. 1.6. Party 2 brings to the attention of Party 1, and Party 1 takes note that at the time of the conclusion of this agreement, the persons provided for in Art. 558 of the Civil Code of the Russian Federation, retaining the right to use and reside in Object 2, is not available. 1.7. Party 2 informs Party 1, and Party 1 takes note that at the time of the conclusion of this agreement in relation to Object 2 there are the following encumbrances (restrictions on use): _________________________ in accordance with _________________________ for a period of _________________________. 2. Contract price and payment procedure 2.1. The cost of the exchanged Objects is equivalent. 3. Conditions for the transfer of objects 3.1. Objects must be transferred at the same time _________________________. 3.2. The transfer of the Objects is carried out on the basis of transfer acts signed by the Parties, simultaneously with the signing of this agreement. 3.3. The risk of accidental loss or accidental damage to the Objects is borne by each Party, depending on which of them had the ownership of the Object at the time of its accidental destruction or damage. 3.4. The transfer of ownership of the Objects is subject to state registration, and the ownership of the Objects arises from the Parties from the moment of such registration. 3.5. The costs associated with the registration of the transfer of ownership, transfer and acceptance of the Objects shall be borne by Party 1. 3.6. The Parties are satisfied with the quality condition of the exchanged Real Estate Objects, examined them before signing this agreement, did not find any defects or shortcomings that were not reported. 3.7. The Parties are obliged to release the Objects belonging to them from the objects and other property located in them in _____________________________. The new owner has the right to dispose of the abandoned items and other property at his own discretion. 4. Liability of the parties 4.1. The Party from which the Real Estate Object acquired under this Agreement has been seized by a third party shall have the right to demand from the other Party the return of the Real Estate Object received by the latter in exchange and (or) compensation for losses, if the Party recognized as the seller of the goods does not prove that the Party , acknowledging the buyer, knew or should have known about the existence of these grounds. 4.2. For non-fulfillment or improper fulfillment of obligations under this agreement, the Parties shall be liable in accordance with applicable law Russian Federation . 4.3. The Party that has violated the deadline for the transfer of the real estate object established by this Agreement shall pay the other Party a penalty for each day of delay in the amount of _________________________% of the value of the property. 4.4. The Party that unreasonably evades the state registration of the transfer of ownership must compensate the other Party for losses caused by the delay in registration. 4.5. In the event of termination of this agreement or its recognition as invalid, as well as in the event of a refusal to state registration of the transfer of ownership, the Parties are obliged to return to each other everything they received under the transaction. 4.6. In the event that the termination of the contract or its invalidation, the refusal to state registration of the transfer of ownership occurred as a result of actions or inaction of one of the Parties, then the guilty Party must compensate the other Party for the losses incurred, as well as all costs associated with the preparation, execution of this contract , and registration of the transfer of ownership, unless otherwise provided by applicable law. 5. Dispute Resolution Procedure 5.1. All disputes and disagreements arising in connection with the execution of this agreement, the Parties will seek to resolve through negotiations. 5.2. In case of failure to reach an agreement between the Parties, the dispute is referred to _____________________________ for consideration. 5.3. When the Parties conduct claim work, the period for considering the claim and providing a response to it is _________________________ days from the date of receipt of the claim. 6. Final provisions 6.1. This agreement is made in triplicate, having the same legal force, one of which is kept in the files of the rights registration authority, and the rest are issued to the Parties. 6.2. This agreement comes into force from the moment of its signing by the Parties and is valid until they fully fulfill their obligations. 6.3. All changes and additions to this agreement are made out by additional agreements of the Parties in writing, which are an integral part of this agreement. 6.4. This Agreement may be terminated before its expiration by agreement of the Parties or by a court decision on the grounds established by the current civil legislation of the Russian Federation. 6.5. Statements, notices, notices, demands or other legally significant messages, with which the contract associates civil law consequences for the Parties to this contract, entail such consequences for this person from the moment the corresponding message is delivered to the Party or its representative. Legally significant messages are to be transmitted by _________________________. The message is also considered delivered in cases where it was received by the Party to which it was sent, but due to circumstances within its control, was not delivered to it or the Party did not familiarize itself with it. 6.6. In all other respects that are not provided for by this agreement, the Parties are guided by the current legislation of the Russian Federation. 7. Details and signatures of the parties

The civil law defines that the exchange allows voluntary transfer of property rights to any thing in exchange for the right to own some other thing.

According to Article 567 of the Civil Code of the Russian Federation, the persons participating in the exchange are recognized as the seller and the buyer, and the exchange agreement between these persons is regulated as a purchase and sale transaction. Initially it is assumed that the objects to be exchanged are equivalent.

Article 567 of the Civil Code of the Russian Federation. barter agreement

1. Under an exchange agreement, each of the parties undertakes to transfer one commodity to the ownership of the other party in exchange for another.
2. The rules on purchase and sale (Chapter 30) shall apply to the barter agreement, respectively, unless this contradicts the rules of this Chapter and the essence of the barter. In this case, each of the parties 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.

In the event of a discrepancy in the value of the exchange items, an additional payment is provided for the item, the value of which is higher, solely by agreement of the exchanging parties. A document on exchange is drawn up for the legal regulation of the relationship between the exchanging parties and to avoid any misunderstandings between the parties.

The exchange agreement has the following distinctive features:

• The main focus is the transfer of any property in the ownership of another person.
• It has the nature of a counter-provision.
• Has the moment of transfer of ownership.

Legislation

Reference! The exchange process is regulated mainly by chapter 31 of the Russian Civil Code. It is this chapter that defines the basic rules for the implementation of the exchange, as well as the procedure for compiling and processing the relevant documentation.

Thus, this legislative act is fundamental in regulating issues of this kind. It also helps to understand the peculiarities of drawing up contracts for the exchange of real estate objects for premises and movable property.

Exchange of premises

Since the form of the contract for the exchange of real estate for real estate is not strictly defined by law (with the exception of the above-mentioned 31st chapter of the Civil Code of the Russian Federation), the rules on the form of purchase and sale of real estate are applicable to such an agreement. The latter is regulated by paragraph 2 of Article 567 of the Civil Code of the Russian Federation.

For the exchange of residential premises, the regulator acts, and when exchanging property belonging to an enterprise, one should be guided by Article 560 of the Civil Code of the Russian Federation.

Article 560 of the Civil Code of the Russian Federation. Form and state registration of the enterprise sale agreement

1. The contract for the sale of an enterprise is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article ), with the obligatory attachment to it of the documents specified in paragraph 2 of Article 561 of this Code.
2. Failure to comply with the form of the contract for the sale of an enterprise shall entail its invalidity.
3. The contract for the sale of an enterprise is subject to state registration and is considered concluded from the moment of such registration.

As for the registration of the fact of the transfer of ownership of immovable objects: such registration is carried out only when both parties to the exchange agreement have complied with the obligations specified in Article 570 of the Civil Code of the Russian Federation. All this indicates that the registration of the transfer of ownership implies the indispensable provision of transfer deeds that confirm the transfer of real estate.

Exchange of movable property

With this type of exchange, first of all, should take into account the frequent inequivalence of objects of exchange. And here one should be guided by paragraph 2 of Article 568 of the Civil Code of the Russian Federation, according to which, when exchanging unequal objects, an additional payment is provided for by a person whose object is less valuable.

Otherwise, the legislative norms remain similar to those that apply when exchanging real estate for real estate.

How is it compiled for the exchange of real estate for similar property?

Differences in registration between individuals and legal entities

Real estate exchange agreements can be concluded both between individuals and between legal entities. There are minimal differences between such documents, but they still exist.

In the case of legal entities, the contractual documents must contain information about the legal entity:

• date and place of registration;
• legal addresses;
• settlement accounts in banks through which an additional payment will be made (in the case of an unequal exchange), etc.

Account information is also required for the payment of taxes and duties stipulated in these cases.

Such contracts and filling differ. So, if the introductory part of the document for individuals contains only passport data of individuals, then in the case of legal entities. persons, in addition to their names, it is necessary to indicate the data of the person (or persons) authorized to sign all the necessary papers and all related documents.

If for some reason, after drawing up the contract, the authority to sign it is transferred to another person, a notarized power of attorney issued to this person is attached to the contract.

Attention! Contractual documentation must necessarily include information about the duration of the contract, about the rights, obligations and liability (in case of violation) of the parties.

Do I need to notarize?

Both in the case of individuals and legal entities All documentation must be notarized without fail.

Notarization of the exchange agreement, as well as all the documentation accompanying it, allows the parties to the agreement to be confident in the legality of all ongoing operations, since in this case the notary acts as a guarantor of the fulfillment by the parties of all the points prescribed in the exchange agreement.

taxes

If the objects that are the subjects of exchange are recognized as equivalent, then none of the parties is the recipient of an economic benefit that has a natural form, and in this case, the payment of any taxes is not provided.

In the case of unequal value of the exchanged objects, the person receiving the surcharge is obliged to pay tax on the amount that he receives, since, according to Article 567 of the Civil Code of the Russian Federation, such a person is equated to the seller of property. The amount of tax paid should be clarified with the state tax office at the time of the transaction.

Instructions for state registration

Where to apply?

If the parties wish to exchange, the parties must contact the territorial bodies of the Service of those registration districts in whose territories the objects to be exchanged are located.

When such a request is received by the territorial bodies of the Service, these bodies make a corresponding entry in the USRN on the receipt of such a request, indicating the existence of a claim in relation to the real estate objects specified in the exchange agreement.

Note! In the event that real estate is exchanged for movable property, in addition to the territorial bodies of the Service, it is also necessary to apply to the state body in which the movable property is registered.

For example, if the movable property is a car, you need to contact the MREO of the territorial district where the car was registered.

Required Documentation

To perform state registration of a real estate-real estate exchange agreement The parties to the agreement must provide the following documents:

Article 157 of the Civil Code of the Russian Federation. Conditional transactions

1. A transaction is considered to be concluded under a suspensive condition if the parties have made the emergence of rights and obligations dependent on a circumstance, regarding which it is not known whether it will occur or not.
2. The transaction is considered to be concluded under a resolutive condition if the parties have made the termination of rights and obligations dependent on a circumstance, regarding which it is not known whether it will occur or not.
3. If the occurrence of the condition was unfairly prevented by the party to whom the occurrence of the condition is unfavorable, then the condition is deemed to have occurred.

   If the occurrence of the condition was promoted in bad faith by the party to whom the occurrence of the condition is beneficial, then the condition is recognized as not having occurred.

In order to perform state registration of an exchange agreement of the real estate-movable property type, it is necessary to provide the above authorities with practically the same list of documents as indicated above, with the only difference that the party that owns the movable property that is the subject of exchange must provide the relevant documents, confirming the ownership of this property, certified by the relevant authorities.

In case of state registration of an exchange agreement between individuals, documents relating exclusively to legal entities should be excluded from the above list. If the registration of an agreement between legal entities is carried out, it is necessary to provide all the above documentation with the exception of those documents that are not required in any particular case.

Attention! All of the above documents must be provided both in original and in copies in the amount of one copy for each party to the contract plus one copy for filing in the file. All documentation (and copies) without exception must be notarized.

Cost and terms

From January 1, 2017 the cost of state registration of barter agreements is set at 2,000 rubles. Other actions related to state registration may be paid additionally. The cost of such actions is individual in each individual case.

The maximum registration deadline is 7 working days immediately from the moment of applying and submitting the relevant application.

Conditions and grounds for termination

Termination of the exchange agreement can be performed under the following conditions:

Despite all the apparent confusion and complexity, the presence of costs and other nuances, exchange transactions are the most accessible and allow citizens to realize their own property interests at minimal cost.

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If the two parties to the transaction decide to exchange their apartments, they draw up an exchange agreement. Sample of this document detailed instructions on its compilation, as well as the procedure for registration with state bodies - all this is discussed in detail in the material presented below.

This type of transaction, such as the exchange of one property for another, is provided for by civil law. Moreover, the Civil Code states that the same rules apply to the exchange as to the sale. Therefore, it is believed that in this transaction, each party simultaneously acts as both a buyer and a seller.

Within the meaning of the article, every citizen has the right to exchange his property for any other objects, i.e. the owner has the right to change the apartment to:

• another apartment;
• a private house, including a country one;
• dacha and other types of real estate.

You can also exchange an apartment for a car, other valuable property objects.

In practice, you can meet the concept of "exchange" and "exchange" of apartments. In the first case, it is assumed that the transaction takes place between the owners of real estate, who have the right to dispose of it by any means. If they talk about an exchange, they mean a deal with municipal apartments that belong to the state (the residents live as tenants under a social tenancy agreement). However, words are often used in both senses, which is not a gross mistake.

The exchange procedure is regulated not only by civil, but also by housing legislation. For such an operation, it is necessary to obtain consent from both the state body (usually the local Administration), and all other residents.

Thus, the exchange is private view real estate purchase and sale transactions. For its implementation, the same documents are required as in the usual case. But first of all, the parties should accurately determine the value of both properties:

• if the price is the same, the exchange is equivalent;
• if the prices differ, an exchange takes place with an additional payment in the form of cash (or credit money, subsidies from the state, etc.).

Sample and compilation instructions

There is no single sample of this document, so the parties can download any form, adapt the text to their case and print the document by signing it. In the name of the contract, you can immediately reflect the type of exchange - equivalent or with an additional payment. These documents will differ only in one point related to the procedure for transferring funds as a surcharge.

Full name of the parties, subject of the contract

The essential terms of such a transaction are the description of its parties (full name, passport data), as well as the characteristics of the object (address, documents confirming ownership).

Each of the apartment owners is referred to as a "Party" because he is both a seller and a buyer. The subject must specify in detail that each party undertakes to transfer the property to the other party. They also refer to documents according to which citizens own this property (certificates of ownership).

Description of the cost of apartments and payment procedure

The parties must necessarily reflect the cost of their apartments (even if an equivalent exchange is made). If the assessment is controversial, you can use the services of private companies. In case of an unequal exchange, the amount of the difference is prescribed, as well as the order of additional payment: who, to whom and how (cash, bank transfer, at what moment) pays extra. In the same paragraph, you can specify that the parties share between themselves in half all the costs that are associated with the execution of documents and registration of the transaction.

Obligations and responsibilities of the parties

In a separate paragraph, you can prescribe what exactly should be the result of the transaction, i.e. What are the obligations of the owner to each other:

• transfer real estate;
• guarantee that the objects are not encumbered with collateral, claims of third parties;
• there are no defects in the premises, they are suitable for living.

In the final part, they prescribe the need to draw up an apartment, the procedure for possible termination. At the end, the parties write down their full names, passport data, put signatures with transcripts (surname, initials).

Step-by-step instructions for apartment exchange

Any real estate transaction is fraught with potential risks (forged documents, defects in the apartment, evasion from fulfilling obligations under the contract, etc.). Therefore, the exchange is best done with familiar people or. If this is not possible, you need to be especially careful when making a transaction, if necessary, use the services of a notary or a professional lawyer.

Step 1. Collecting the necessary documents

Owners must bring the same set of documents (the minimum required list is indicated):

• passports;
• documents for an apartment;
• exchange agreement.

Step 2. Registration of the contract

Questions related to whether it is necessary to register an exchange agreement are common. At the same time, there is an opinion that only a contract of sale is subject to registration. This point of view is erroneous: any contract for the acquisition of real estate (for money, as a result of a donation, by will, etc.) is subject to mandatory state registration. On the day the transaction is registered, both parties, personally or through representatives acting under a notarized power of attorney, come along with the described documents to the Rosreestr branch or.

After submitting an application and paying the state duty (2000 rubles), you must expect within 5-10 business days. Then the documents will be ready: both owners will be issued with canceled certificates of ownership for the old objects and for new apartments (this document has now completely replaced the certificate of ownership, which is no longer issued).

Step 3. Paying personal income tax

Since the legislation perceives the exchange of apartments as a sale and purchase transaction, it is believed that along with the new property, the owner also receives income. This income is subject to personal income tax, which is 13% of the amount exceeding 1 million rubles. For example, new flat costs 4 million rubles, then the owner should pay 13% of 3 million, i.e. 390 thousand rubles.

The tax payment deadline is no later than July 15. In this case, it is necessary to submit a declaration, which is drawn up in the form of 3-NDFL (until April 30). In both cases, we are talking about the year that follows the year of the exchange. For example, the transaction occurred on December 27, 2017. Then the tax must be paid before July 30, 2018.