Notary control — real estate transactions

In the long list of all kinds of real estate transactions, there are those that require the mandatory participation of a notary: in these cases, without notarization, the transfer of ownership cannot be registered, and the transaction itself will be declared invalid. The seller partly doesn’t care in what form (simple written or notarial) everything is carried out; his legal risks are minimal, but the buyer, on the contrary, has a lot of them. And the more thoroughly the inspection of the future apartment and the seller himself is carried out, the more powerful the buyer’s line of defense in court will be built, if necessary.

The notary will “clean up” the transaction as much as possible: he will check the presence of all the necessary documents, if they are missing, he will request them, check the apartment for debts, pledges, establish the legal capacity of the parties to the transaction, and so on. And, as a result, the buyer will receive an apartment, the right to which is protected by law,” emphasizes Igor Maidanov, head of the Rosreestr department for Moscow.

At the same time, the notary not only examines the papers, but also verifies the legal capacity of individuals, pays attention to the behavior of the parties to the transaction: the person must look appropriate, conduct a logical dialogue, not be intoxicated or under the influence of drugs, and so on. An important point: if a contract certified by a notary was lost or damaged for some reason, a citizen can at any time apply for a duplicate at the notary office where it was originally drawn up.

As Rosreestr experts explain, the following transactions are subject to mandatory notarization:

• alienation of shares in the right of common shared ownership, with the exception of transactions where all participants alienate their shares under one transaction;
• alienation of shares in the right between co-owners, including when, as a result of such a transaction, one of the co-owners becomes the sole owner of the property;
• transactions related to the disposal of real estate under guardianship conditions, transactions for the alienation of real estate belonging to a minor or a citizen of limited legal capacity;
• annuity contracts;
• agreements on the division of common property acquired by spouses during marriage, prenuptial agreements.

The notary draws up a purchase and sale agreement and (with the consent of the parties) submits documents for state registration in electronic form using the notary’s electronic signature and in the format of electronic interaction with Rosreestr. The notary does not charge additional fees for sending documents to Rosreestr, and the reduced time frame for state registration of such agreements is an additional advantage of notarization of real estate transactions.

Also, the buyer and seller can use a notary’s deposit to settle the transaction — as an alternative to transferring money through a safe deposit box. After the transfer of ownership of the property occurs, the notary will transfer the funds to the seller.

I would like to add that it is now possible to conduct transactions through a notary remotely. As an example: a buyer, being in Khanty-Mansiysk, turns to a local notary, and a seller in Krasnodar turns to his notary at the location of the property. Next, the Krasnodar notary, after interacting with a notary in another region, sends a package of documents to Rosreestr for state registration of rights in electronic form,” notes the chairman of the Public Management Council of Rosreestr for Moscow, capital notary Anton Frolkin.

The most common basis for challenging real estate purchase and sale transactions is that the seller allegedly could not be aware of his actions during the transaction, although he was legally competent. Fortunately, notaries have video recording that can prove that the person was fully conscious, so challenging such a transaction becomes much more difficult.

Transactions with undervaluation (in the Civil Code of the Russian Federation there is a wording for this “sham transaction”) — an option that is very common in the field of real estate.

When the owner sells you an apartment for 1 million rubles, the market price of which is 9 million rubles, such a transaction is feigned and insignificant. It may be declared invalid due to the fact that the purchase and sale agreement is drawn up in a single form, which indicates all the essential conditions, including the price of the propertywarns Anton Frolkin.

So, a law-abiding notary will not conduct a transaction that understates the value of real estate. I would like to think that the majority of sellers and buyers of the real estate market are also law-abiding, so the positions of notaries will only please them.

author: Valeria Mozganova

source: Notary Chamber of Sevastopol