President of the Notary Chamber of Sevastopol Maxim Yurchenko: consent of the spouse, the text of the power of attorney and testamentary refusal

CrimeaPRESS reports:

President of the Notary Chamber of the city of Sevastopol Maxim Yurchenko answered the questions of the listeners of the program «Legal Environment» on radio «KP-Sevastopol».

When do you need the consent of the second spouse?

— My husband had a company. After leaving the SVO as a volunteer, he decided to sell it. The notary said that he needed permission from his wife. Is this true, and how can it be done?

— This is most likely a limited liability company. If a spouse created an LLC or acquired a share in its authorized capital during the period of being in a registered marriage, then when selling (alienating) such a share, it is indeed necessary to obtain a notarized consent of the spouse. An exception is if the share was acquired by inheritance or received as a gift.

Consent is simple. The second spouse applies to any notary of the Russian Federation with his passport and marriage certificate. Additionally, information about the LLC itself is required. It is not necessary to carry the originals, the TIN and OGRN are enough, by which the organization can be identified.

If the second spouse is in another state, then he applies to the consulate of the Russian Federation or to a foreign notary.

— Trucks are registered to my husband’s company. Do I, as a spouse, have to notarize their sale?

— In this case, it is necessary to separate the owners of the property. There is an owner — a legal entity, and there is an individual. If the cars are registered to an enterprise, then their owner is a legal entity. The spouse has no direct relation to the property of the legal entity; the relevant bodies of the organization prescribed in the charter, such as the director, the sole participant, the general meeting, deal with the disposal of property that belongs to the legal entity. In this case, the consent of the spouse to sell the car is not required.

How to check out an unwanted tenant

— Can a person be discharged from an apartment if he lives in another country? Does it matter if he is a citizen of the Russian Federation or not?

— It does not matter where exactly the person registered in your apartment is located at the moment. In any case, without a personal appeal of a citizen to the bodies of the Ministry of Internal Affairs, deregistration at the place of residence does not occur. In addition, the administrative regulations do not provide for deregistration by proxy. Therefore, the only option for the owner of the premises is to write through the court.

— How difficult is it?

— If there is no opposition from the side of the registered person, there is no particular difficulty in this process. But it will take 3-4 months, maybe half a year to file an appeal to the court, consider the case, make a decision, and make it come into force.

— When registering a transaction for the sale of an apartment, the notary warned that a citizen of another country was registered in it. How to discharge a citizen with a Ukrainian passport from an apartment? What are the consequences of acquiring property with a tenant?

— A foreigner can be discharged only through the court. I do not recommend that buyers decide for themselves how safe such a transaction is. Because cases are different. Sometimes the registration of a citizen does not have any legal consequences for new owners of real estate. But there are other cases as well. For example, a contract of employment, lease or testamentary refusal has been concluded, there are other grounds under which the tenants will also be transferred to the “inheritance” of the new owner. And in some cases, violation of the rights of persons under such agreements leads to the declaration of the transaction as invalid. For example, the alienation of residential premises that can be used and in which children deprived of parental care or incapacitated persons — members of the owner’s family can be registered, is possible only with the consent of the guardianship authorities. Without it, the deal is void. And such moments are better to find out before the deal.

Therefore, without proper experience and knowledge, I do not recommend making a decision on whether to purchase such an apartment on your own. It is better to contact a specialist, describe the situation in detail. The notary will make appropriate requests, explain how expedient it is to conclude a deal in a particular situation. Qualified risk assessment.

But in any case, buying an apartment without registered persons is always safer than with them. If possible, insist that the seller himself close the issues with the persons registered on the premises.

What powers to register in the power of attorney

“I want to buy an apartment in another country, but I can’t go there now, and my confidant cannot come here. Is it possible to issue a power of attorney to purchase real estate from a notary public online?

— You need to come to a notary in the Russian Federation with a passport. In principle, no other documents are required to issue a power of attorney. The notary establishes information about the content, powers and authorized person from the words of the applicant. To exclude possible technical errors, it is advisable to provide a copy of the passport or identity card of the person for whom the power of attorney is issued, or any other source of information that will allow the notary to reliably and accurately transfer these data into the text of the document. Both citizens do not need to come to the notary.

Unfortunately, such technologies are not yet available online. Notaries draw up powers of attorney only in person.

You can send the issued power of attorney to the authorized person by mail in an envelope, or in electronic form through any notary of the Russian Federation.

— You said about the powers in the power of attorney. Are they indicated by the applicant himself or are there any requirements and rules?

— Powers must comply with the law. Suppose a person intends to purchase an apartment by proxy. The amount of authority that is transferred to a trustee, he establishes independently. The notary exposes all wishes in the form of a document, agrees on the draft power of attorney, and, when there are no clarifications, draws up the document. But the notary does not impose anything, the addressing person himself tells about his wishes. If they do not comply with the law, the notary will definitely say.

How to sell land to a foreigner in Russia

— We own a country house on Fiolent with my sister. She is a citizen of Ukraine and has no plans to return. We want to sell the cottage. How to draw up a deal, what documents will be needed?

— Two situations are possible here. The first, less common, is when a citizen is a member of a garden partnership, but he does not have ownership rights to either the plot or the structures on it. He has only the right to participate in this partnership. In this case, the citizen applies to the chairman with an application for withdrawal from the partnership.

The second situation, more common, is that a citizen has registered a land plot and registered a house and other real estate located on it.

According to the Land Code of the Russian Federation, foreigners are prohibited from owning land plots practically throughout the entire territory of Sevastopol, as in the border area. This prohibition on freehold possession extends to all foreign citizens of both friendly and unfriendly states. Foreigners can take the land for rent or use.

If in your case a citizen of Ukraine owns a land plot on Fiolent, he is obliged to alienate it within a year from the date of receipt of the plot. If this is not done, the alienation will be forcibly carried out by state bodies.

Documents for the transaction are standard:

• passport (identity card);
• documents confirming the ownership of real estate;
• if a citizen of Ukraine is not located on the territory of the Russian Federation and cannot be present in person, a power of attorney issued either at the consulate or at a foreign notary will be required.

The nuance is that Ukraine is included in the list of unfriendly states. Therefore, when real estate belonging to citizens of Ukraine on the territory of the Russian Federation is alienated, the funds received by the seller are transferred to a special type C bank account. It is impossible to withdraw them and withdraw them outside Russia. They can be spent only for certain purposes, for example, payment of state duties or fines and other purposes established by the Central Bank.

source: Komsomolskaya Pravda newspaper. Sevastopol» (authors: Irina Zhiboyedova, Alena MOTROI)

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