Any real estate transaction (every residential premises is real estate) begins with the question: which of the residents of the apartment is registered and what age they are.
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If at the time of taking legal actions minors are registered, then it is necessary to be extremely careful, since very often citizens, out of ignorance, do not take into account the fact of the child’s residence and already in the process of the transaction unforeseen circumstances suddenly arise.
This happens especially often when an apartment with a minor child is privatized.
Concept
The concept of “privatization” refers to a program for the free transfer of ownership of municipal housing to citizens, while the registration process is by no means free.
The principle of gratuitousness is as follows: residents living with children in residential premises under a social tenancy agreement receive housing for free, and not through purchase.
But, preparing the necessary documents will cost a certain amount; in each case, depending on the circumstances, this amount may vary; sometimes the privatization process is not so cheap.
Exclude from privatization
therefore, they must get an apartment with a mortgage in 2013.
I heard rumors that a bill is being considered that if you participated in privatization you will be excluded from the mortgage. Is it possible to somehow exclude children from privatization? So what should we do now? It turns out that the law has retroactive effect? And now there will be one apartment for 3 families? In accordance with Art. 11 of the Law on Privatization, minors who have become the owners of occupied residential premises in the manner of its privatization retain the right to a one-time free living space in houses of the state and municipal housing stock after they reach the age of majority.
Legislation
The transfer of ownership of residential premises in Russia is regulated by Law No. 1541-1 “On Privatization”; from the end of February 2020, in accordance with Federal Law No. 14, it became unlimited; the procedure for registering ownership of housing is described in Section 3 of the provisions of the Housing Code of the Russian Federation.
It is necessary to register ownership of an apartment in accordance with Federal Law No. 218-FZ, which describes the rules and procedure for registration.
Concept, changes
Privatization is a procedure for appropriating a real estate object (apartment, house) or land plot, carried out by acquiring ownership of it.
The law regulating the procedure for appropriating a real estate property came into force in 1991. According to it, the privatization of an apartment was possible only with the participation of adult citizens, while minors were deprived of the right to acquire ownership rights. The only thing available to them was living in privatized housing, as well as registration in it.
Information!
In 1994 the situation changed. Minor citizens received ownership rights in privatized housing. Moreover, the procedure has become mandatory.
Children's rights
Minors are divided by age into three categories:
- under 14 years of age, transactions on their behalf must be carried out by their legal representatives (parents or guardians);
- from 14 to 18 years old, they can already carry out some transactions on their own, but some can still be carried out only with the consent of adults;
- emancipated children from 16 to 18 years of age, recognized as fully capable, have the right to perform all actions without the participation of parents or guardians.
If parents or guardians are present
There are often cases when parents or guardians are married, each of them has an apartment used under a social tenancy agreement, a minor is registered in one residential building and lives in another.
In this case, it is possible for one of the parents to participate in the privatization of the apartment, most often in the one where they are registered.
If the parents are divorced, then, most often, the minor is registered with the one with whom he lives, when this housing is used under a social rental agreement, the child will participate in the program of this particular apartment.
Without care
A minor left without parental care is under no circumstances deprived of the right to privatization.
To register ownership of a child, it is necessary to obtain written consent from the guardianship authorities and write an application on his behalf, this is if he has not reached the age of fourteen.
Is it possible to privatize the attic above an apartment in an apartment building? How to recognize ownership rights through privatization through court? Find out here.
Legal representatives and guardians have the right to write a statement; if he reaches 14 years of age, the minor himself writes.
Up to fourteen years of age
Privatization of an apartment with a minor child who has not yet turned fourteen years old has some features, among which are the following:
- Participation in privatization for a minor child under 14 years of age is a mandatory procedure;
- In the privatization process, the child’s official guardian (parent or lawyer) must represent the child’s side. This applies not only to the collection of documents, but to affixing a personal signature;
- A child under the age of fourteen cannot become the sole owner of an apartment. According to the Law, he can only receive a share.
Privatization for a minor child
If children under the age of majority are registered in the residential premises, then privatization without their participation is unacceptable, while the process of obtaining ownership of the apartment takes place as usual.
With the participation of children
At the very beginning of the program, the participation of children registered in residential premises was not specified, then their legal status changed.
Today, the exclusion of a minor, if he has a permanent residence permit in an apartment, from the program is unacceptable.
Parents do not have the right to refuse participation on behalf of their child.
The only exception is the fact that the minor has already exercised his right at another address.
Up to 14 years old
Under the age of 14, all the interests of a minor are represented by his guardians or parents; naturally, only they can apply for privatization; all papers for the child are also signed by representatives of his interests instead of him.
Under 18 years old
There are some peculiarities when obtaining property rights for children from 14 to 18 years old.
They can write an application for privatization themselves, but in any case the consent of parents or guardians will be required, including in the case when they do not live and are not registered in the residential premises for which the minor is applying.
It is important to know that if only minors are registered in the apartment, then all expenses for collecting certificates and documents are borne by the state.
If registered
According to the law, minors participate in the privatization program for the apartment in which they are registered.
But there are exceptions: in the case where the child’s parents live married but are registered in different apartments, the minor can take part in the privatization of any of the parental apartments.
In the event of a divorce, the opportunity to obtain ownership of residential premises in which there is no registration is lost.
Possible difficulties
No problems or difficulties will arise if the child is registered in the residential premises and did not take part in obtaining ownership of it.
But in the case when the parents of a minor divorce, and he is registered in the apartment of one of them, and lives with the other, and both legal representatives live in residential premises under a social tenancy agreement, then problems may arise.
In accordance with the Federal Law, a child can participate in the privatization of the residential premises in which he is permanently registered, but this housing may be much smaller in area and less comfortable than the one in which his second parent lives.
In this case, it is better for them to agree and register the minor in a better apartment so that he will subsequently receive more comfortable living conditions.
How to privatize an apartment for a child
A child cannot voluntarily refuse privatization, but registered adults can do this. If they all refuse in favor of the minor, then he will become the sole owner.
However, those who refuse will have the right to live in the apartment for life. That is why many parents want to register an apartment only for their child.
An orphan child can also become the sole owner. In this case, his interests will be represented by the guardianship authorities.
Procedure and procedure
In fact, the procedure for turning public housing into the sole property of a child does not differ from a similar procedure in which a minor receives only part of the apartment. However, there is one peculiarity.
When collecting documents, all those refusing privatization must voluntarily appear before a notary and, in his presence, formalize the refusal.
There is also a less expensive way - to deregister the apartment. It is not necessary to have another place to live; an adult can simply check out to nowhere. We talked about how to do this here.
If the child is an orphan and no one else is registered in the apartment, then the procedure follows the standard algorithm.
Statement
The application must be supplemented with information about persons who refused the preferential right to receive an apartment.
Required documents
Notarized refusals of persons registered in the apartment must be attached to the usual package of documents. Otherwise, the list of required certificates does not change.
Expenses
Children, if they alone participate in privatization, do not have benefits in paying state fees. Their legal representatives will have to pay 2,000 rubles. The only exceptions are children left without parental care - the state covers their expenses for paying the tax fee when they take ownership of their home.
But it is impossible to say exactly the amount that will have to be spent on notary services to certify the refusal. It depends on the region, and on the rates of the notary’s office and on the number of people refusing.
Deadlines
The deadlines will also not be less than 45 days. Registration of a notarial refusal usually does not require much time - a maximum of one and a half to two hours.
The procedure for registering housing ownership
The first step in registering ownership of a residential property is the written consent of all registered persons, including the child.
If he has not yet reached 14 years of age, then his parents fill out the application instead; if he is already 14 years old, he writes and signs the document himself, but legal representatives in any case must express written consent.
If someone wants to refuse to participate in privatization, he must formalize the refusal and be sure to have the paper certified by a notary.
Next, an application is written to the local administration for the transfer of ownership.
The next step is collecting all the necessary documents: for the residential premises itself and from each applicant. If relatives who died were previously registered, you need to have a copy of the death certificate.
All collected documents are attached to the application and submitted to the local administration.
All that remains is to wait for a positive response, which is drawn up in writing and attached to other documents for Rosreestr. If the answer is negative, it must be submitted in writing with mandatory reasoning for the refusal in accordance with the law.
The final stage is to take all documents to Rosreestr and, after some time, receive a certificate of ownership.
In the case of registration of residential premises as shared ownership, a certificate is issued for everyone who received a share in the apartment, including a child.
Only after receiving the document, applicants, including children, become owners.
Children in a privatized apartment: where is the trap for the buyer?
An excursion into history As the Internet portal about real estate Metrinfo.Ru reminds, the start in the privatization of residential premises in the Russian Federation was given by federal law No. 1541-1 “On the privatization of housing stock in the Russian Federation” dated July 4, 1991.
But in the original version of this law there was no talk about the rights of minor children. Art. 2 of the law allowed citizens to register ownership of apartments with the consent of adult family members. That is, apartments were privatized into the ownership of adults only, and the rights of children were violated everywhere.
Only on August 11, 1994, changes were made to the law, according to which children were required to be included in privatization. Otherwise, it was necessary to obtain permission not to include the child among the owners from the guardianship and trusteeship authority. Also, minors who became owners of residential premises as a result of privatization began to retain the right to a one-time free privatization after they reached adulthood.
Thus, from 1991 to 1994, a huge number of insignificant transactions were made, which are still “surfacing” in the courts.
If you are a former minor whose rights were violated... In this case, you can try to restore your rights. If a dispute arises over the legality of privatization, this agreement, as well as the certificate of ownership, may be declared invalid by the court on the grounds established by civil law (Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 No. 8).
Invalid transactions are divided into voidable (invalid due to its recognition by the court) and void (regardless of such recognition).
If you intend to sue, the main thing is that the statute of limitations . That is, if you believe that your rights have been violated, then keep in mind that the law sets a certain period during which you have the right to rely on judicial protection.
For void transactions, the statute of limitations is three years. Moreover, as stated in the Civil Code of the Russian Federation, the limitation period begins from the day when the execution of this transaction began.
Let us remind you that previously the statute of limitations for void transactions was not 3 years, but 10 years! But in 2005, changes were made to the Civil Code of the Russian Federation, as a result of which the period was reduced to 3 years.
Let’s say the parents privatized the apartment in 1993, and the child was 6 years old at that time. But the child could not defend his rights at such a young age. But he can sue, having reached the age of majority, and demand, in legal language, “to apply the consequences of the invalidity of a void transaction.” He has 3 years for this. That is, until the age of 21, such a person has the right to count on judicial protection of his violated rights.
Although in judicial practice there are cases when the judge recognized that his legal representatives should have protected the rights of the child, and the statute of limitations in the above situation has expired for the child.
But even if the statute of limitations has expired, this does not mean that the person has lost the right to go to court . As stated in the Civil Code of the Russian Federation, a claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the statute of limitations. And no matter how many years have passed since privatization or since coming of age, a citizen has the right to file a claim in court.
But if the defendant compares the dates and finds out that the plaintiff missed the statute of limitations, then he has the right to demand that the judge reject the claim, since the corresponding period has been missed. The limitation period is applied by the court only upon the application of a party to the dispute, and in this case a decision is made to dismiss the claim. If neither the defendant nor the plaintiff declared the application of the limitation period, the case will be considered on its merits.
What advice can you give to a prospective plaintiff who has not met the statute of limitations?
First of all, don't despair. In some cases, if the court recognizes that the statute of limitations was missed for a good reason, then the violated right of the citizen must be protected. So you need to prove in court that you had such reasons.
The plaintiff, for example, may claim that he was a minor and could not independently defend his rights in court. Another argument of the plaintiff will be the absence of a document from the guardianship and trusteeship authority - permission not to include the child among the owners of the apartment.
You should also be aware of the following. According to the law, privatization without including minors falls under a void transaction , for which the statute of limitations begins to run from the moment the transaction is executed. But in court you can bring a claim to declare the transaction partially invalid , for example, in terms of not including a minor among the owners. In this case, the limitation period will be calculated from the day when the person learned or should have learned about the violation of his right. That is, 1 year from the day the citizen learned of a violation of his rights. And then you need to prove that you recently learned about the violation of your rights.
If you are a buyer from whom they are trying to reclaim an apartment that was privatized in violation of the rights of a minor... Claims from children who did not participate in the privatization (after they grew up) make up a significant part of the cases considered in the courts. Citizens demand that not only privatization agreements, but also subsequent apartment purchase and sale agreements be invalidated.
What advice can you give if you become a defendant in such a claim?
The buyer can indicate that the rights of a minor to participate in privatization have not been violated - he can participate in the privatization of another apartment.
A future buyer can be advised to use the title insurance service. It is offered by many insurance organizations. It guarantees receipt of monetary compensation in the event that the purchase and sale agreement is declared invalid and additional legal protection in court.
How to correct the situation What can be advised to those who privatized housing in violation of the rights of minors, but want to “correct”?
A citizen whose rights have been violated has the right to file a lawsuit and declare the privatization invalid. Then the apartment can be privatized again, but with the inclusion of all citizens among the owners. Only citizens living in a residential building, that is, officially registered in it, can privatize housing.
You can demand in court to recognize the privatization deal as partially invalid, and then include the former minor among the owners.
We remind you: - the deadline for free privatization ends on March 1, 2010 (and so far the state has no plans to extend this period again);
- for privatization, the consent of all living adult family members, as well as minors aged 14 to 18 years, is required; if at least one of the employers is against privatization, then it is almost impossible to register ownership of the apartment (only through the court);
- the opportunity to privatize residential premises is given to a citizen only once, with the exception of minors, who have the right to privatize an apartment once before the age of 18 and again once after turning 18 years old, that is, they have the right to privatize residential premises twice;
- residential premises are privatized into the common shared ownership of all living citizens - tenants, including minors;
- if any of the living tenants refuses privatization, then he receives the right to lifelong use of the specified apartment. It is impossible to discharge such a person from the apartment in the future without his consent, even if the apartment is sold to other persons !
Comments from specialists The Internet portal about real estate Metrinfo.Ru asked market practitioners to express their point of view on this topic.
Alexander Perepelkin, lawyer at Real Estate Agency: A person whose right to privatization was violated as a minor can go to court at any time. Until recently, such transactions were in most cases considered by the courts as partially void. The limitation period was first 10 years, and then 3 years, which were calculated from the moment of execution of the transfer agreement.
However, as follows from the Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the third quarter of 2008, the statute of limitations in this case should be calculated in accordance with paragraph 2 of Art. 181 of the Civil Code of the Russian Federation and clause 1 of Art. 200 Civil Code of the Russian Federation. This means that the agreement for the transfer of residential premises in the manner of privatization, in which a minor child was not included in the list of owners, is partly not void, but partly a voidable transaction, the statute of limitations for which is at least one year, but is not calculated from the moment execution of the transfer agreement, but from the day when the person learned or should have learned about the violation of his right to privatization.
This opens the door to many already seemingly hopeless legal prospects. After all, it is possible to say that “I didn’t know about the violation of my right to privatization before, I only found out now and I ask you to restore my rights” even after 20-30 years!
Therefore, it is necessary to purchase residential premises, during the privatization of which the rights of minors were violated, with extreme caution. If their rights were not restored by the guardianship and trusteeship authorities while still a minor during the alienation of residential premises, it is better to refuse such a transaction altogether .
Alla Lyagina, director of the legal department of IntermarkSavills: A unified judicial practice on the application of limitation periods has not been fully formed. Some courts determine the beginning of the limitation period by the date of the transaction, incl. privatization, however, such a position is hardly applicable when a claim is brought by a prosecutor.
According to clause 2. Article 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor who filed the application enjoys all procedural rights and bears almost all the procedural responsibilities of the plaintiff. This means that the statute of limitations when presenting claims in the interests of citizens who are unable to independently defend their rights, legitimate interests when concluding contracts regarding real estate and determine the moment of violation of these rights must be calculated from the moment when the prosecutor became aware of the violation of the rights of such citizens . That is, the statute of limitations is not considered missed. The Moscow City Court took a similar position when considering the relevant cassation submissions of prosecutors.
But this opinion is not the only one in this matter! Opponents of this approach argue that prosecutors cannot influence the statute of limitations. Then there is another way. For a citizen who could not protect his rights for reasons related to his personality (and the reasons for the inability of a minor to independently submit an appropriate application are often related to this), the statute of limitations can be restored (Article 205 of the Civil Code of the Russian Federation).
Courts also restore the statute of limitations when considering cases involving claims of guardians and trustees. Without denying the fact that the limitation period has expired (thereby indirectly confirming the start of the period from the moment the transaction was completed), the courts, in most cases, restore the missed period, recognizing the reasons for missing it as valid.
However, in any case, if a controversial situation arises, you should contact qualified lawyers, since much in such matters depends on the specific circumstances of the case.
Mikhail Razdolsky, head of the Oktyabrskoe Pole department: In order to establish that the rights of minor children were not violated during the privatization of an apartment, it is necessary to obtain an extended extract from the house register - it contains information about all the people who have ever lived in this apartment, including those who privatized the apartment.
When completing a transaction with a privatized apartment in which minor children live (or do not live, but at the time of privatization had equal rights to this apartment with the owners), our company’s lawyers check whether they are registered in this or another apartment. If the minor children of the owner or any person registered in this apartment are not registered anywhere, then you cannot buy such an apartment - this will be a violation of the rights of minor children. In this case, the buyer of the apartment has a chance, after a few years, to meet with the now adult child in court.
If minor children were not included in the privatization agreement, then the lawyer checks the availability of permission from the guardianship and trusteeship authorities for the refusal of the minor child to privatize, as well as the compliance of the form and content of the refusal with current legislation.
What documents are needed
To register privatization, you must collect the following documents:
- photocopies of passports (for minors - birth certificates) of all applicants;
- written consents or notarized waivers from each registrant;
- social rental agreement for residential premises;
- technical plan and technical passport for residential premises;
- a certificate from their management company listing all registered persons or an extract from the house register;
- information about the absence of utility debts is available in the personal account.
Exclusion of a minor from privatization.
I want to sell this apartment and buy another one.
Can mother and brother prevent this, if. — I am the owner of the apartment in which my mother and brother are registered. I want to sell this apartment and buy another one. can mother and brother prevent this if the brother refused privatization. further We recommend reading: Statement for clarification of the court decision 0 answers. Saratov Viewed 25 times. Asked 2015-01-31 06:25:17 +0400 in the topic “Housing Law” Please tell me - Please tell me.
Questions and answers
There are several questions that most program participants ask, for example: is it possible to privatize an apartment for a child if he is discharged, or how many apartments can a minor register as ownership.
How many times can children participate in the program?
If a child under 18 years of age has already participated in the privatization program, then he can privatize another apartment after he reaches legal age.
If discharged
A minor has the right to live with any of his parents or guardians; therefore, he has the right to participate in the privatization of the municipal apartment in which he lives.
In this case, it does not matter whether he has permanent or temporary registration in this living space.
Up to eighteen years of age
As for the procedure for privatization of children aged fourteen to eighteen years, it has the following nuances:
- Privatization of housing is carried out upon submission of an appropriate application from the child’s official representative;
- In addition to the application, the minor citizen must obtain the written consent of the guardianship authorities;
- Privatization of real estate for a child under 18 years of age is carried out free of charge;
- If a minor is already registered in the privatized housing, written consent from the first will be required to privatize a second minor;
- A child over fourteen years old can become the sole owner of an apartment.
Court decisions
Most often in judicial practice on privatization with the participation of minors, courts are faced with the illegal deregistration of a child in residential premises, which will be privatized shortly after the latter’s discharge.
Parents think that if their child is discharged, then he cannot claim a share in the living space. In such cases, guardianship authorities stand up to protect the rights of the child and take an active part in court hearings.
Is it permissible to formalize the privatization of emergency non-residential premises? Is it possible to privatize a garage through State Services? Find out here.
What documents are needed to privatize a room in a communal apartment? Read on.
In the vast majority of cases, if the minor was discharged immediately before submitting the documents, the court cancels the privatization and obliges a repeat procedure for registering ownership of the apartment with the participation of the minor.
Privatization for a minor child has many nuances; a family with children, before starting the procedure for registering residential property as property, must study all the pitfalls in order to avoid refusal of privatization or, in special cases, even legal proceedings.
Features of privatization of housing with minor children
The conditions for privatization of real estate with minors depend on the age of the child. Thus, children under fourteen years of age have the same rights, and persons under eighteen have completely different rights. However, there are rules that apply to everyone. So:
- Minor citizens are always included in the housing privatization agreement, regardless of where they live, provided that they are registered in it;
- To refuse the privatization of housing on the part of a minor, it is necessary to obtain written permission from the guardianship and trusteeship authorities;
- To draw up a privatization agreement with the participation of minors, written permission obtained from the guardianship and trusteeship authorities is required in all cases;
- If the privatization of housing was carried out when the citizen was a minor, then, after reaching the age of majority, he can re-privatize the real estate (free of charge).
Information!
The disadvantage of privatizing housing with a minor is that it complicates the conclusion of a purchase and sale transaction, which is impossible without the appropriate permission from the guardianship authorities. Obtaining such permission may take some time and significantly slow down the procedure for selling a real estate property.
What to do if a minor is discharged before privatization?
In 2006, a six-year-old child (the niece of the current tenant, Svetlana), was discharged from a non-privatized apartment at the same time as her father. This niece and her father registered in another privatized apartment. At the beginning of this year, Svetlana tried to privatize this non-privatized apartment. But she was given a certificate about family composition, which says that her niece was registered in this apartment until 2006 (she was 17 years old on the day the certificate was issued), but in 2006 she was deregistered at a different address. Although a month before the issuance of this certificate, Svetlana was given the same certificate there, but her niece was not listed in it, she was not mentioned. At the privatization hotel, having seen the certificate with her niece listed, Svetlana was told that her niece should also be included in the privatization, and given a share in the apartment, after which Svetlana abandoned the idea of privatizing the apartment. Is the privatization department right in that it should be included in privatization and allocate a share to this niece? She turned 18 in June 2020. Now they won’t include it in the certificate? It’s not in the order, it’s not in the social rent agreement (and it wasn’t at the beginning of the year, the year Svetlana tried to privatize the apartment). If Svetlana manages to privatize her apartment now without including her niece in the privatization, will the fact that her niece was privatized before the privatization cause problems when selling the apartment?
Have a question for a lawyer?
The fact that a minor is registered at his father’s address does not deprive him of the right to live in this apartment with his mother, so without him you will not be able to privatize the apartment.
Article 7 Privatization Law
The contract for the transfer of residential premises into ownership includes minors who have the right to use this residential premises and live together with persons to whom this residential premises is transferred into common ownership with the minors, or minors living separately from these persons, but who have not lost the right to use this residential premises .
Due to the fact that the minor was registered in your apartment, he acquired the right to use the residential premises, and regardless of the fact that you registered him at a different address, he did not lose this right.
Thus, the minor must participate in privatization. If privatization takes place without the participation of a minor, then such a transaction may subsequently be declared invalid by the court at the claim of a child who has reached the age of 18, or at the claim of a legal representative under the age of 18.
Sincerely, Alexander
How to avoid the participation of a minor in privatization?
According to Art. 2 of this Law, the privatization of state and municipal property is based on the recognition of the equality of buyers of state and municipal property and the openness of the activities of state authorities and local governments. State and municipal property is alienated into the ownership of individuals and (or) legal entities exclusively on a reimbursable basis (for payment or through the transfer into state or municipal ownership of shares of open joint-stock companies, into the authorized capital of which state or municipal property is contributed).
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Lawyers' answers (2)
The requirement of the privatization department is justified; if the certificate indicates that the niece is registered, then she should be included in the privatization. Another question is the reliability of information about registered citizens indicated in the certificate. You need to deal with the authorities that issued the certificates. There are still questions
If at the time of the conclusion of the agreement for the transfer of the disputed residential premises there were no minors who have the right to use the residential premises and live together with the persons to whom the disputed residential premises will be transferred into ownership, as confirmed by an extract from the house register, then the rights in relation to this residential premises The minor has no accommodation.
Accordingly, no problems will arise when selling a residential property.
