Federal Notary Chamber: top 5 mistakes when using maternity capital for housing

People either allocate shares themselves and make mistakes, or delegate this task to dubious specialists who do not have the necessary knowledge and qualifications. As a result, children’s rights are violated, families get involved in long legal battles, some have to return their capital, and others have to return their newly purchased housing. Problems may arise when dividing the property of spouses after a divorce or when entering into an inheritance after the death of one of the family members. Transactions that are made with such real estate may also be disputed, and then strangers who bought such housing also come under attack, — note specialists of the Federal Notary Chamber.

We talk about the most common mistakes associated with directing capital to housing, and how a notary helps to avoid them.

Mistake No. 1 — incorrectly calculated the size of the shares

There are often agreements in which the size of shares is calculated incorrectly. The ruling of the Supreme Court of the Russian Federation states that shares are calculated not from the entire apartment, but in proportion to the amount of capital allocated for its purchase. For example, if the real estate cost 5 million rubles, of which 500 thousand were closed with capital capital, then in the agreement it is necessary to distribute not the entire living space into shares, but only 1/10 of it (5 million/500 thousand).

If the cost of the apartment significantly exceeds the size of the capital, for example, a three-room apartment in the Moscow region for 13 million rubles, then the minimum required shares will be very small. If maternity capital covers most of the cost of housing, let’s say it’s an apartment for 2 million rubles in Arkhangelsk, then the shares will be quite large. If real estate is purchased only using maternity capital, the shares of all family members will be equal. In each specific case, their size will depend on the exact cost of housing, its area and the number of family members who appear in the agreement.

If children are given shares larger than the minimum required, there is no problem. Parents can increase children’s shares at their discretion. But under no circumstances should they be reduced, this is already an infringement of rights.

The notary will help you calculate everything correctly, and also tell you about the specifics of disposing of an apartment with shares owned by minors. In addition, through a notary, you can carry out correct and expedited registration of rights in the Unified State Register of Real Estate.

Mistake #2 — did not take into account the elements of the marriage contract

You can’t just change the size of adult lobes, even to a larger extent, but many people do this — and this is another common mistake. Very often, spouses, in one agreement, drawn up without the participation of a notary, determine shares for the children and divide the entire remaining apartment among themselves. Let’s explain in order.

In most cases, spouses, in addition to maternal capital, use a mortgage or their savings to purchase a home. Part of the real estate that was purchased with “other” money is their joint property. To allocate shares from it, you need to change the property regime, and this can only be done through a marriage contract or an agreement on the division of jointly acquired property. Both documents must be certified by a notary. If this requirement is ignored, the rights to real estate will be registered on the basis of a void transaction, and this is a possible reason for challenge.

Another similar mistake is when a man nobly renounces his share in real estate, both capital and the rest, in favor of his wife and fixes this in an agreement drawn up “on the knee.” The problem is that you cannot give an unallocated share, and in any case, a notary is needed to determine the ownership regime.

There are also such flaws: one of the partners takes out a mortgage before marriage. That is, the apartment is considered his personal property, even though he continues to repay the loan after the wedding. When a couple has children, they borrow capital and use it to pay off the premarital mortgage. Then they conclude an agreement on the allocation of shares according to the standard scheme, where part of the apartment is listed as joint ownership. However, in this case this will be a change in the ownership regime — from personal to joint. Here again you need a notary; without his seal the transaction will be void. And in the future, the couple “shines” in court, and given the recent increase in court fees, this light hurts their eyes.

A notary will help calculate shares in property, firstly, correctly from the point of view of the law. Secondly, in proportion to the funds invested by both spouses. The parents’ shares do not have to be equal. Situations can be different: a husband and wife take out a mortgage together, or someone invests personal pre-marital savings, or maybe the money was given by the parents of one of the spouses or he inherited it. The marriage contract does not need to be drawn up separately; the elements of such a document are included in the agreement on the allocation of shares in maternal capital, which is certified by a notary.

In the practice of notaries, there are also complex agreements. Real case: a family with three children contacted a notary’s office. Initially, the wife owned ⅔ of the apartment; the family bought the remaining ⅓ from a distant relative of the woman. Maternity capital funds were used for this purchase. The spouses wanted to draw up an agreement in which not only the minimum required shares of the capital were allocated, but the entire property was divided into equal shares between all five family members.

The agreement had several “steps”: distribution of the newly purchased ⅓ of the apartment according to the capital, then elements of a marriage contract for the parents and donation of the missing shares to the children. As a result, each person owned ⅕ of the apartment.

Mistake #3 — shares were not allocated to everyone or to the wrong ones

Another common mistake is that parents do not allocate shares to all children. For example, they believe that adult sons and daughters cannot claim anything in this case. It is important to remember: shares in an apartment or house that were purchased or built using maternal capital funds must be transferred to all children who were born on the day the certificate was received. Their age does not matter.

It happens that parents do not specifically allocate a share to an adult child. A case from practice: a couple wanted to sell an apartment on which they had previously spent capital. As the notary found out, the share was allocated for the youngest child, but not for the older child. The sellers tried to persuade the buyers and the notary to turn a blind eye to this. They said that the relationship with his adult son was They are not supported and he will never know that he was entitled to something. Of course, no deal happened.

Notaries are periodically approached by families who want to share housing among all their children, including stepchildren or stepchildren. For example, the family has a husband’s daughter from his first marriage, whom his current wife has not officially adopted. According to the law, a share of the maternity capital cannot be allocated to this girl. Although the couple bought an apartment for her too. The notary helped draw up an agreement according to which the father was allocated a larger share, and he gave a part to his child from his first marriage.

Moreover, if a woman’s child from her first marriage lives in the family, and after giving birth to a second marriage with a new husband, she receives a certificate, then shares in the maternity capital without any reservations are due to both children and the husband. If the spouses divorced before receiving maternity capital, then the shares should be allocated only to the woman and children, and the ex-husband no longer has anything to do with this distribution. Just like a man who lives with a woman and is the father of her children cannot claim a share in maternal capital if the marriage is not registered.

There are situations when a family using maternity capital has adult children, but they live separately, do not depend on their parents financially and do not claim a share in the new apartment. Or the spouse wants to give up the share. Currently, this possibility is not enshrined in the law and the issue is not clearly regulated. It is being considered in the State Duma and has already been adopted in the first reading. billwhich fixes this. It is proposed to secure the right of an adult child or spouse of the certificate owner to refuse to participate in the ownership of residential premises in terms of maternity capital funds even before concluding an agreement on determining the shares.

Mistake No. 4 — incorrect registration and lost shares

It also happens that the shares of maternal capital are calculated correctly. Everyone who is legally required to receive them is mentioned in the agreement. But the document makes a seemingly small mistake that destroys the entire structure.

A case from practice: a family with two children paid off the balance of their mortgage with maternity capital. They drew up an agreement on the distribution of shares with a lawyer. The “specialist” wrote that 24/100 of the apartment belongs to spouses, 12/100 to children. And he put an end to it. That is, the remaining 52/100, which were purchased with credit money, simply disappeared, the right to them was lost with a flick of the wrist.

This was not discovered at the registration stage; the loss was discovered several months later, when people tried to sell this apartment. Instead of going to a restaurant to celebrate a successful deal, they had to go to court. Unfortunately, unqualified lawyers, realtors and other “assistants” often produce documents with defects, which then take a long time and have to be difficult to correct.

The notary will draw up a competent document that meets the requirements of the law, takes into account all important factors and guarantees equal protection of the rights and legitimate interests of all parties to the agreement.

Mistake No. 5 — allocated shares in the wrong places

Another unpleasant mistake is when a family buys one piece of real estate using maternity capital, and allocates shares in another.

Situations can be different: for example, apartment A was bought with maternity capital money, shares were not allocated for children in it, housing is sold and apartment B is bought, where shares are allocated. It sounds good, but according to current laws, such decisions will have to be answered before the prosecutor’s office or in court.

In the above mentioned bill it is possible not to allocate shares in housing purchased with maternal capital money, but to transfer this responsibility to another residential property purchased later, if it is larger or more expensive.

This is relevant, for example, for families who bought an apartment with the help of capital and a mortgage, but even before the loan is fully repaid, they find more spacious housing and want to make an exchange. Now they need to first repay the loan on the first apartment, allocate shares to all family members, and only then sell it and buy a more suitable option. This delays transactions and forces people to sell real estate at a reduced price.

Another recent example from practice: a woman approached a notary who wanted to allocate shares of maternity capital to her children. Everything would be fine, but according to the documents, she was supposed to use her maternity capital to build a house, and she was going to allocate shares in the apartment. According to the applicant, she never got around to construction, and she spent the state support money on renovating the apartment. Coming to the notary as if nothing had happened and allocating shares “at least somewhere” will not work. Such misuse of state support funds may even result in criminal prosecution.

PS How not to buy an apartment with “mistakes”?

Currently, the Unified State Register does not contain a mark on the use of maternity capital for an apartment or house. If the property is resold and the transfer of ownership is registered based on a simple written transaction, problems may arise. Firstly, the interests of family members of the owner of maternal capital may suffer, for whom the shares are allocated incorrectly or not allocated at all. Secondly, new buyers will also be at risk, since a transaction with similar flaws may be declared invalid in the future.

Experts have long been discussing the need to provide a special mark in the Unified State Register of Real Estate, signaling that there is a trace of maternal capital in square meters. This would minimize the number of lawsuits challenging transactions for the sale of housing in which shares are not allocated for children.

What can you do now? Contact a notary for certification of the transaction. He carries out a wide range of checks. It may also reveal that the property was purchased by the seller using maternal capital funds.

For example, this may be obvious from the documents on the basis of which the apartment was purchased. Often the contract states that part of the price was paid from maternal capital. Or, if there was a loan, you can request a loan agreement, the text of which may also contain a reference to the capital that was used to repay the mortgage. If in doubt, you can also ask the seller for documents from the Social Fund of the Russian Federation stating that he did not use maternity capital funds to purchase the apartment that he is currently selling.

Source: FNP website