Sale using a garden book, a false power of attorney, dachas in protected zones and other surprises. To avoid buying a pig in a poke, we asked experts to tell us how to look and what to check.
Before you buy a dacha, check the seller’s ownership, clarify the real boundaries of the plot and the type of its use. Only after this can you proceed to concluding an agreement, transferring money and registering rights.
OTHERWISE IT WILL BE LIKE THE SAVELIEVS:
“We were looking for an inexpensive dacha, but found ourselves in trouble. The saleswoman is God’s dandelion grandmother. I was selling a Soviet-built house in the old SNT. She said that she no longer had the strength to take care of the site, but for the previous 40 years she had been driving regularly, paying membership fees and everything was fine with her. Only now he sells it according to a garden book, because everything was burned in the fire. Recovery is long and difficult, but her legs can’t walk.
We bought the house in our own way: we didn’t contact anyone, we downloaded the contract from the Internet. And then it turned out that the garden book does not guarantee that the plot was privatized! So this grandmother had no rights. Now we are trying to resolve this situation.”
So, what should you do to avoid getting yourself into trouble? We made a whole list and explained the scenarios.
Check the ownership of the house and plot
Make sure that the dacha you are interested in really belongs to the seller. First, ask him for copies of documents.
At this stage, different situations are possible:
1. The seller shows you a certificate of ownership issued after 1998, or an extract from the Unified State Register of Real Estate.
“The presence of any of these documents (as opposed to, for example, a certificate issued before 1998) confirms the fact of registration of the seller’s ownership of the object. This means that if there are no encumbrances, the transaction will not be suspended and the transfer of rights will take place.
The buyer’s task is to check the relevance of the information in the provided extract. Ask the seller to order a fresh extract to exclude the presence of encumbrances (collateral or arrest) that could have appeared after the seller received the extract,” Yulia Azarova, a lawyer-expert in real estate transactions, told Tsian.Journal.
2. The seller has a certificate of ownership issued before 1998; information about the plot was not entered into the Unified State Register of Real Estate.
“There are two options here. The first is to submit two applications to Rosreestr at the same time: for registration of ownership rights and for registration of transfer of ownership rights. That is, the department will register the seller’s ownership of the dacha and immediately after that the buyer’s ownership will be registered. This method is the fastest, but also the most risky,” admits Yulia Azarova.
If the registration of ownership in the name of the seller is suspended, then the purchase and sale transaction will also be suspended. The buyer will lose time, and if registration is refused, he will face the problem of getting his money back.
There is a second option: agree with the seller that he will first register his ownership right, and only then, together with the buyer, will apply for the transfer of this right. In this case, the buyer’s risks are minimal. This option will increase the transaction period by 3–10 days, but will protect you from possible financial losses.
3. The seller presents a court decision, a certificate of inheritance, an agreement on the ision of property.
The advice is similar: you need to wait until the information is entered into the Unified State Register and only then enter into a deal. It also wouldn’t hurt to check the legal force of the court decision that formed the basis for registering property rights. If the decision is appealed, there is a chance that it will be overturned. After this, ownership rights are also revoked.
4. There is no ownership of the dacha plot; there is only a membership book for a garden or dacha association.
Do not under any circumstances buy a dacha through a “garden book”. It only confirms membership in a non-profit partnership, not ownership. Having bought such a plot, you will be faced with the need to privatize it, but this will be very difficult: you just bought it, and not during the time of free distribution.
For several years now, the authorities have been considering the initiative to sell plots with a debt of at least three years. Sometimes the management of non-profit partnerships achieves this in court, but this measure has not yet been formalized by law.
This legal initiative is controversial, says Ruslan Syrtsov, managing director of Metrium. On the one hand, it will contribute to the development of SNT. On the other hand, as a result, the rights of private owners are infringed. I believe that, regardless of the condition of the site, in order to seize the land it is necessary to obtain their written consent, while removing the debt burden.
FOR REFERENCE
The Register of Rights to Real Estate (USRP) appeared in 1998. Subsequently, it became part of the Unified State Register of Real Estate (USRN). This means that all rights to real estate arising after 1998 were subject to state registration.
And one more thing: from March 2023, USRN extracts issued to third parties no longer indicate information about the owners. You can receive an extract with such information only through the owner himself – he must order the certificate.
On the Rosreestr website you can use the electronic service for free.
There you can get the following information:
- cadastral number;
- object location;
- date of registration and date of update of information in the Rosreestr database;
- purpose;
- square;
- number of legal rights holders;
- presence or absence of encumbrances.
Take a closer look at the seller
Pay attention to the personality of the seller himself, do not hesitate to ask him questions.
“Ask when he acquired the land plot and the dacha, where the ownership was registered, whether there are many neighbors around and whether they live there all year round. Such questions will help expose a fraudster; he simply will not be able to answer them clearly,” advises Yulia Azarova.
It has become common practice in real estate transactions to request certificates from psychiatric and drug dispensaries for the seller. If the seller is interested in the transaction and has nothing to hide, he will definitely present these documents.
From the seller who is married or was married at the date of purchase of the dacha, ask for the notarized consent of the spouse to sell the dacha. Otherwise, there is a risk that the transaction will be declared invalid.
In addition, it is necessary to make sure that the person has not orced in the last three years. If this does happen, check whether there is a clause in the court decision or in the notarized agreement on the ision of joint property that the former spouse does not have any rights to the alienated object.
IMPORTANT
If the seller’s spouse has not given notarized consent to the transaction, in the future he may challenge it as having been completed without his knowledge. The court will most likely recognize such a transaction as invalid and terminate the purchase and sale agreement.
As a result, the buyer will not only lose the dacha, but will also incur costs (costs for registering the dacha, including state duty and fee for a bank letter of credit, payment of a legal representative).
And if by the time the transaction is terminated the seller has spent all the money received from the buyer, the latter will have to collect it through the bailiff service literally for a penny.
Previously, transactions without consent were definitely touched when the second spouse made a demand, says Yulia Azarova. But since 2022, the legislation has changed.
“Now, the court does not always recognize a transaction as invalid – only if it is proven that the buyer knew or could have known that the seller was married. Let’s say there was a stamp in the passport, or when inspecting the dacha, the neighbors on the site said.”
And don’t forget about the children. If maternity capital was once used to purchase or build a house, then the parent-owners are obliged to allocate children’s shares in the new housing.
Moreover, such a transaction must be approved by the guardianship authorities. If you know that the seller has children, it makes sense to ask him for a certificate from the Pension Fund.
One of the well-known fraud schemes when buying a summer house is a fake power of attorney. “If the seller himself is not involved in the transaction and his interests are represented by someone by power of attorney, then be sure to check on the website of the Federal Notary Chamber information about such a power of attorney: whether it was really issued and whether it has not been revoked,” advises Yulia Azarova.
Are the boundaries of the site defined?
If the paperwork is in order and the seller’s identity is safe, make sure the size and configuration of the lot matches what the seller is showing you. It is optimal when the Unified State Register of Real Estate contains, in addition to information about the owner of the plot, data about its coordinates.
However, it is still better to call a cadastral engineer who will come to the site and show how the Unified State Register data relate to the real state of affairs.
This check is especially important when you purchase a plot of land with buildings. If, after the purchase, it turns out that part of the house or bathhouse encroaches on a neighboring plot, the neighbor will subsequently be able to demand the demolition of such a structure.
Do not forget that buildings should not be located close to the border of the site: as a rule, it is required that economic facilities be at least a meter from the border, and residential buildings – three meters.
IMPORTANT
If there is no information about the boundary of the plot in the Unified State Register of Real Estate, then you are at great risk: a dispute with neighbors can arise at any moment.
“The problem is that about 70% of summer residents have registered their buildings as property under the dacha amnesty – a simplified procedure without mandatory land surveying. That is, the boundaries and area of the plot can be revised, for example, if your neighbors suddenly decide to demarcate the plot. So ask the seller to define clear boundaries. Yes, this will take three to four weeks, but only in this case can you be sure that there will be no possible attacks on your property,” Ruslan Syrtsov is convinced.
Another nuance is the type of permitted use (AUR). Information on how the site can be used and what is allowed to be built on it can be found in the Unified State Register of Real Estate.
You can also ask the relevant questions at your local administration. This will help eliminate unpleasant surprises after purchasing a summer cottage. In particular, the law prohibits the construction of residential buildings on agricultural lands with VRI for agricultural production or land reclamation.
Avoid security zones
Carefully inspect the surrounding area: if you see a gas pipeline or power line near the borders, find out from the owner of the networks whether the area falls within the security zone. Otherwise, after the purchase, it may turn out that you cannot build on the site, light a fire, or dig a cellar.
ADVICE
Also, lawyer Yulia Azarova recommends further studying the section on restrictions on rights in the extract from the Unified State Register of Real Estate. The gas pipeline may pass under the site, and it will not be possible to recognize this during a visual inspection. Moreover, in the extract, if there is such an encumbrance, there will be a reference to Article 56 of the Land Code of the Russian Federation.
In addition, try to find out if there are plans to build a road or other infrastructure facility in the neighborhood. If a highway or railway line is going to be built through your site, there is a risk that sooner or later the purchased house will be confiscated for government needs, offering compensation, the amount of which often does not coincide with the real market value of the property.
There have already been precedents in the Moscow region when attempts were made to sell dachas for demolition at a deep discount. At the same time, the sellers knew that in a couple of years the plots would be seized for the needs of the state. Unfortunately, there were buyers for such houses.
“Unfortunately, until the land plot is officially reserved for the needs of the state, it is impossible to know in advance whether the property will be seized from the owner,” says Ruslan Syrtsov, managing director of Metrium. — As a rule, realtors or lawyers “punch through” such information through their channels in the administration. The maximum you can count on when independently assessing a property is studying the master plan for the development of the territory.”
And Yulia Azarova recommends checking whether there is access to neighboring areas from a common road.
“There are often situations when the path to a certain part of the garden community is possible only through someone’s specific plot. In this case, the court will impose an easement on the site, and the buyer will be obliged to open it for travel and access to everyone who needs it,” the expert warns.
What to include in the contract
The purchase and sale agreement can be concluded in simple written form (except in cases where the law requires notarization of the transaction). It is important to write down all the characteristics of both the house and the plot: cadastral numbers, area, address.
According to Yulia Azarova, the document does not have to be very long and complex.
But there are points that you definitely need to pay attention to:
1. The contract must indicate the actual sale price. If problems arise with the site later, it will be very difficult to return the money not included in it. In addition, underestimating the value of the property by 30% may become grounds for invalidating the transaction if, after a few years, the seller decides to go bankrupt.
2. A separate clause should include the absence of claims by third parties to the dacha. This is especially true in the country market, where plots are often inherited and sometimes unexpectedly applicants appear for them.
3. Remember that ownership will pass to you only after state registration of the purchase and sale agreement. Signing him and handing over the money is not the whole deal! Set a day and contact the MFC together with the seller. This way, your applications will get into the registration file as quickly as possible, and in a few days the transfer of rights will take place.
ADVICE
“Despite the fact that the legal literacy of the population is gradually increasing, it is advisable for potential buyers to involve professional lawyers, even at the stage of selecting housing. A specialist will help you get around pitfalls, such as problems with documents, registration, and registered people. These problems are especially common on plots that are sold at a significant discount relative to the market,” says Ruslan Syrtsov.
Let’s summarize
1. Check all documents and do not trust garden books!
2. Pay attention to the development plans: are the authorities planning to lay a gas pipeline or road across your site.
3. Find out everything about the marital status of the owners of the house: do they have spouses (then consent to the sale will be required) and children (see if maternity capital was used for the purchase).
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