Denis Artemov, a leading lawyer at the law firm Via lege, told the Novostroy-M portal about what an agreement for the assignment of rights of claim (assignment) is, how to apply it correctly in the new buildings market and minimize possible risks.

Under a contract of assignment of rights (in Latin “cession” - “cessio”, “cession”) one person transfers to another the right to demand the fulfillment of an obligation. Under an assignment agreement, the obligations themselves can be transferred - the receiving party must fulfill them in favor of a third party.

In the case of apartments in new buildings, the copyright holder (assignor) transfers to the transferee (assignee) the contractual right to demand the developer transfer the apartment after putting the house into operation.

An assignment of rights agreement is in many ways similar to a purchase and sale agreement, therefore, to make it simpler, we will call the copyright holder the seller and the transferee the buyer.

The assignment agreement is widely used when selling apartments in new buildings. The fact is that, firstly, as construction progresses, the cost of housing in new buildings increases, which makes it possible to invest money in order to further make a profit. Many investors do not wait for the completion of construction and registration of ownership of the apartment, but strive to sell the property earlier. To do this, they use assignment of rights.

Secondly, agreements for participation in shared construction (DDU) can only be concluded while construction is underway - that is, until the house is put into operation. And purchase and sale agreements are valid only if there is a formalized ownership of the apartment. At the same time, quite a lot of time may pass from the moment the object is commissioned to the registration of ownership rights, during which developers fall out of the phase of active sale of apartments. As a result, they enter into a contract agreement for the remaining volume of apartments with one of their structures, which subsequently, without haste, engages in sales under assignment agreements.

It is noteworthy that the use of this type of agreement is beneficial to both parties to the transaction. The seller can receive money for the apartment without going through the procedure of accepting it under the transfer and acceptance certificate and registration of ownership, and also without additional operating costs. The buyer can purchase an apartment not “from scratch”, track the progress of construction and its pace (and the price of the apartment in this case is lower than after putting the new building into operation and registering ownership).

Pitfalls

The assignment agreement must meet certain requirements. Chapter 24 of the Civil Code of the Russian Federation is devoted to the change of persons in obligations and introduces a number of important rules. The most significant laws include the following:

The assignment of rights agreement must be drawn up in writing, and the assignment of rights under the DDU must undergo state registration (in this case, the rights of the new person to the apartment appear precisely from the moment of state registration);

The contract must clearly define the subject of the transaction (apartment), indicate its price, and the payment procedure;

If the agreement for participation in shared construction provides for the mandatory written consent of the developer for the assignment, it is necessary to obtain it - otherwise the transaction may be declared invalid.

Article 11 of the Federal Law “On participation in shared construction...” supplements this list with two more conditions:

The seller can only transfer the fully paid apartment or the buyer must assume the obligation to pay the debt;

Assignment of rights is possible only until the transfer of the apartment under the deed (the rule is based on the essence of the assignment agreement: when the deed is signed, the very right to demand the transfer of the apartment is exercised - there is nothing to concede).

In addition, the following points are important:

In the assignment agreement, the seller must guarantee the legal purity of the apartment (not mortgaged, not seized, third parties have no rights to it, there is no legal dispute);

In accordance with Article 385 of the Civil Code of the Russian Federation, when assigning rights, the seller transfers to the buyer the title documents he has (agreement on participation in shared construction, payment documents). It is important to draw up a separate act about this);

The fact of full settlement between the buyer and the seller, in order to avoid further disagreements, also needs to be confirmed by an act of mutual settlements;

The developer must be notified in writing of the assignment of rights; the buyer is responsible for the lack of notification;

Before concluding an assignment agreement, it is important to ensure the validity of the assigned rights, in particular, that the agreement has not been terminated and has been fully paid.

The easiest way to check this is to request an extract for the apartment from the Unified State Register of Rights. It must confirm the validity of the contract (whether it has not been terminated) and the owner of the apartment; there should be no information about the presence of a mortgage, court arrests and other encumbrances.

Also, if possible, it is necessary to come with the seller to the developer’s office: the developer is not interested in unpaid or invalid rights to the apartment being sold to third parties. In addition, the developer has his own copy of the documents that make up the legal history of the apartment, with which you can compare the papers provided by the seller.

After concluding an assignment of rights agreement, the buyer is “left alone” with the developer, so it is also important to familiarize yourself with the main title documents for construction:

Order of the head of the local administration on construction;

Agreement between the administration and the developer on the conditions for the construction of a residential building;

Land lease agreement (certificate of ownership);

Construction permit;

Positive conclusion of the state examination on the construction project.

The developer's manager can also provide other significant information: for example, about new construction completion dates (they may shift); about preliminary measurements of the apartment (if the area has increased, the buyer will be charged an additional payment in the future) and about the approximate cost of operating the apartment (it does not appear in the contract).

When studying the equity participation agreement itself, you need to pay attention to the fact that it must be stitched and have a rectangular stamp from the Federal State Registration Service about the registration.

The seller is also obliged to provide documents confirming the payment made: receipts for cash receipt orders, bank payment orders, settlement reconciliation acts.

If the apartment was purchased with a mortgage, there must be written confirmation that the loan obligations have been fully repaid. In the case of an outstanding mortgage, a bank must be involved in the transaction, which, using the amounts paid by the buyer, covers the seller’s credit obligations and removes the collateral from the apartment.

Organization of settlements under the assignment agreement between the buyer and seller

When concluding an agreement for the assignment of rights of claim, the seller runs the risk of signing the agreement, submitting it for registration, but not receiving payment for the cost of the apartment. For the buyer, the danger is exactly the opposite - he can give the money, but not receive confirmation from Rosreestr of the transfer of rights (for example, due to court arrests).

Therefore, the most optimal form of payment is through a safe deposit box, the condition for access to which is an assignment of rights agreement registered with Rosreestr.

Also, recently they began to use a bank letter of credit for non-cash payments (the principle is similar to renting a locker). But the cost of banking services under a letter of credit is significantly higher, so it has not yet become widespread.

Indication in the assignment agreement of the partial price of the apartment

Article 210 of the Tax Code of the Russian Federation classifies all taxpayer income received in cash as the taxable base for calculating 13% personal income tax. Income from the assignment of rights is no exception. In practice, this leads to attempts to indicate in the contract a reduced price for the apartment, which is often equal to its value under the shared participation agreement.

In this case, in addition to the obvious violation of tax laws, the buyer assumes additional risk, which may be realized in the event of further invalidation of the assignment by a court decision.

According to Article 167 of the Civil Code of the Russian Federation, the consequence of the invalidity of a transaction is the so-called bilateral restitution, when each party is obliged to return to the other everything received under the transaction. And if the seller receives the apartment back, then the buyer receives only the documented cost of the apartment.

Thus, it is advisable to indicate in the contract the actual market value of the apartment. But even if this does not happen, the buyer should take care to confirm that the full amount has been paid (for example, using additional receipts).

Role of the developer

Often the developer takes on the responsibility of formalizing the assignment of rights. He helps the parties prepare the necessary documents, draws up an assignment agreement, and submits it for state registration. In cases provided for by the DDU, the developer acts as a third party to the agreement or gives separate written consent to the assignment. Of course, this is beneficial for the parties to the transaction.

But there is also another side to the coin. As a rule, such developer services are paid. The developer sets their cost independently: there is no government regulation of this issue. There are also no recommendations on who exactly bears the costs - the seller or the buyer.

Therefore, it is important to clarify the cost of the developer’s services in advance so that during the transaction it does not turn into an unpleasant surprise.

When the seller has not fully paid for the apartment (for example, in installments), the involvement of the developer in the transaction becomes mandatory. In this case, the buyer transfers part of the paid funds to the developer to pay off the debt, and the rest to the seller.

However, support of the transaction by the developer does not solve all the difficulties. On the contrary, it is extremely difficult to legally hold a developer accountable for possible errors in the execution of a contract, so the parties should carefully study the documents and discuss all the nuances in detail.

Other nuances

The rights of claim against the developer for an apartment relate to property rights. Thus, the law allows for the assignment of rights in shares, i.e. they can be issued to several persons who are sellers. The situation is similar with buyers, of whom there can also be many.

In addition to the DDU, developers also use other types of contracts for the sale of real estate in new buildings. For example, a PDCP or an agreement on participation in a housing cooperative. Despite the fact that the assignment of rights to an apartment under them differs in many ways from the assignment under the DDU, much of what is discussed in this article is applicable to such types of assignment.

In conclusion, it should be said that the agreement on the assignment of rights of claim, like other types of civil transactions, is aimed at implementing free property and monetary circulation and is designed to assist the parties in achieving mutually beneficial results.

At the same time, it is very important to pay attention to the correct execution of documents (to avoid errors and inaccuracies), to plan in a timely manner and correctly distribute the competencies of the parties to the transaction in the preparation and provision of the necessary documentation.

T. MAYOROVA

Tatyana Mayorova, lawyer.

In the conditions of modern Russia, participants in civil law transactions have almost complete freedom of economic activity at their disposal. Currently, the role of the state in regulating market relations is reduced to establishing some restrictions and rules, and independent and independent economic entities that regulate their relationships themselves, mainly through contracts, come to the fore. That is why the importance of contractual relations in the process of commercial activity is very great.

An organization may not encounter a contract as common as a contract, but if it does, a number of problems may arise. When concluding an assignment agreement, counterparties face many pitfalls that can “sink” the deal.

Perhaps this legal vulnerability of the assignment agreement is due to the fact that this type of agreement is not regulated, unlike others, by a separate chapter of the Civil Code of the Russian Federation, which regulates in detail the position of the parties. The assignment agreement is governed by Sec. 24 of the Civil Code of the Russian Federation “Change of persons in an obligation” and § 1 “Transfer of the creditor’s rights to another person.” The Civil Code of the Russian Federation determines: the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person. Such a transition can be carried out both by law and by transaction, that is, including by contract. The grounds for the transition are listed by law in the Civil Code of the Russian Federation, but this is not the object of our consideration.

The legislator, having established the possibility of transferring rights under a transaction, did not determine the type of agreements under which this transfer occurs, and, thus, in the case when the subject of a purchase and sale agreement is property rights (clause 4 of the Civil Code of the Russian Federation), such an agreement is essentially the same is an assignment agreement. Strictly speaking, an assignment agreement is a collective concept that includes different types of agreements for the assignment of claims. The essence of the assignment is that the original creditor (and this is any person who has the right to claim) assigns his right to claim to the new creditor. Typically, assignment agreements are concluded in situations where the fact of transfer of rights is necessary as a result. For example, an assignment agreement is often used in schemes when the organization - the original creditor is liquidated, sold, or is simply “abandoned”, but uncollected debts remain. In such cases, the receivables are assigned to another organization - a new creditor (usually also its own organization), which, if the transaction is recognized as void, will simply lose the possibility of a claim, and, taking into account the meaning and purpose of such a transaction, naturally, there is no talk of any compensation for losses here will. The assignment agreement is also used in certain cases and for the withdrawal of intangible assets of the enterprise. If an assignment agreement is concluded for these purposes, and the enterprise is in the bankruptcy stage, it is necessary to remember to respect the order of priority, otherwise the assignment agreement that violates the order (and, accordingly, the rights) of creditors may also be declared invalid with all the ensuing consequences. So, given the scope of application of this agreement, it is important to avoid such shortcomings that may subsequently serve as grounds for declaring it invalid.

It should be noted that the law does not allow the transfer to another person of rights that are inextricably linked with the personality of the creditor (Article 383 of the Civil Code of the Russian Federation). An example of this kind of rights would be the right to receive alimony, the right to compensation for harm caused to health, etc. The assignment of a claim without the consent of the debtor is not allowed if the identity of the creditor under the obligation is of significant importance to the debtor (Civil Code of the Russian Federation), and also the assignment of a claim is not allowed if if it contradicts the law, other legal acts or agreement. An example of obligations in which the identity of the creditor is essential are obligations under a joint activity agreement, therefore, the assignment of claims under a joint activity agreement without the consent of all participants is impossible.

Failure to comply with the form of the transaction may also result in its nullity (Art. Art., Civil Code of the Russian Federation). The form of the assignment agreement must correspond to the form of the transaction on which the right of claim is based.

Let us note an interesting aspect of the assignment agreement - certain legal consequences after the conclusion of the assignment agreement actually occur for the creditor and debtor only after the latter is notified of the assignment. This is directly stated in the law (clause 1 of Article 385 of the Civil Code of the Russian Federation): the debtor has the right not to fulfill an obligation to a new creditor until he is provided with evidence of the transfer of the claim to this person. Also, if after the conclusion of the agreement (but before receiving the notice) the debtor fulfills the obligation to the old creditor, the risk of such adverse consequences falls on the new creditor. In this case, the fulfillment of the obligation to the original creditor is recognized as fulfillment to the proper creditor (clause 3 of Article 382 of the Civil Code of the Russian Federation). This rule ensures the protection of the interests of the debtor, excluding the possibility of a new creditor making a repeated claim against him. However, the risk of adverse consequences should not be understood as the inability to demand from the original creditor what was received from the debtor. Since the rights of claim under the obligation were transferred to the new creditor, the receipt by the old creditor from the debtor had no legal basis. Consequently, the new creditor has the right to demand what the debtor has performed from the old creditor as received unjustifiably.

The right of claim assigned under the contract itself is important. It must be valid, that is, existing. If a non-existent right is transferred under an assignment agreement, such an agreement will be invalid. Therefore, when concluding an agreement, special attention should be paid to documents confirming the existence of rights that the old creditor is obliged to transfer to the new one (clause 2 of Article 385 of the Civil Code of the Russian Federation). Recognizing an assignment agreement as invalid in part can hardly be permissible, since usually the right of claim is defined in the form of a specific amount (corresponding to a specific requirement), which, in turn, will be an essential condition for this agreement, and recognizing it as invalid in part of its essential conditions are not allowed (Civil Code of the Russian Federation). Thus, such an agreement is considered invalid in its entirety.

An analysis of judicial practice on the issue of the validity of assignment agreements (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 1998 N 4735/98) showed that establishing the fact of an unconditional replacement of a person in an obligation is also important. Otherwise, if there is a “continuing relationship,” that is, if the legal relationship of the parties and the main obligation did not terminate at the time of concluding the agreement for the assignment of claims, it should be considered that the creditor in the obligation has not been replaced and the assignment agreement is invalidated on the basis of law (Article 168 Civil Code of the Russian Federation).

It is of no small importance that at the time of concluding the assignment agreement, the debtor had counterclaims that arose before the conclusion of the assignment agreement. Taking this into account, it is still advisable to find out from the debtor before concluding the contract whether he has any objections to the claim or counterclaims. According to Art. 386 of the Civil Code of the Russian Federation, the debtor has the right to raise against the claim of the new creditor the objections that he had against the original creditor. If the debtor has counterclaims, then, according to the Civil Code of the Russian Federation and clearly established judicial practice, the counterclaim of the debtor to the original creditor goes against the claims of the new creditor, provided that such a counterclaim arose on grounds that arose before the debtor received notice of the assignment, and the deadline the requirement came before its receipt or this period is not specified or is determined by the moment of demand (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow Region dated October 9, 2003 N KG-A41/7602-03).

During the year, in accordance with the concluded transportation contract, P.’s company provided transportation services to A.’s company. However, part of the services was not paid for by A.’s company due to the fact that A. had claims for compensation for losses caused by P.’s company by improper performance of its duties for agreement for a certain amount. But, despite the validity of the claims, P. refused to compensate for the losses. A. did not go to court, since she unilaterally considered the amount of the claims to be offset against payment for services. After this, P. assigned the right to claim the debt under the transportation contract to N.’s new company under an assignment agreement, after which N. filed a claim with the arbitration court to collect the debt. In this case, the court established the legality of N.’s claims, but recognized both the validity of A.’s claims and A.’s right to compensation for losses. As a result, despite the fact that the agreement on the assignment of the right of claim itself did not have any shortcomings, N. did not receive the expected real economic result from this transaction.

An important point that needs to be paid attention to is the consideration of the assignment agreement. And although the legislator does not establish an unconditional rule of compensation for the assignment agreement, however, taking into account the meaning of clause 4 of the Civil Code of the Russian Federation, which prohibits donations in relations between commercial organizations, and in order to avoid the possible qualification of such a transaction as a gift agreement with the subsequent recognition of its nullity, it is better to define the agreement assignment as a compensation and add an appropriate provision to it. Of course, gratuitousness itself is unlikely to be a defining feature for qualifying an assignment as a gift, however, taking into account other rights and obligations under the assignment agreement, this may be so.

So why is such a legal mechanism as recognizing a transaction (agreement) invalid or void for the parties to a transaction dangerous? In accordance with Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences and is invalid from the moment of its completion.

In relation to assignment, the unfavorable consequences of recognizing the assignment transaction as void for the new creditor will be that, as a result, he will not be the proper creditor to claim the debt. The only positive thing for him in this situation will be that the original creditor, who assigned the claim, is still liable to the new creditor for the invalidity of the transferred claim (Civil Code of the Russian Federation), which is not very comforting, given the scope of application of this agreement.

The assignment agreement represents a certain agreement on alienation of rights to loan debt to another person on the basis of law.

Simply put, this is a transaction that makes it possible to transfer financial responsibility without the consent of the debtor.

An assignment agreement (also known as an assignment of rights agreement) in the real estate industry is a certificate that certifies not the fact itself, but the right to demand its transfer into ownership.

Today you can find two types of real estate assignment agreements:

The first type of real estate assignment involves the advance payment of the entire value of the property.

The second type of agreement implies that unpaid funds will be transferred to the buyer in the form of his obligations.

In addition, the assignment can be issued before the transfer of the property. Before the keys are handed over to the buyer, the apartment may be assigned several times.

The assignment itself and the share participation agreement must be state registered.

If we talk about the second option, then in this case the future main thing will be concluded on special conditions for a certain period.

This document does not speak about the purchase and sale itself, but about the fact that they undertake to complete it in the future.

Terms of the agreement for assignment of the right of claim

The right of the original creditor passes to another creditor in the amount and on the basis that were agreed upon at the time of transfer of the right.

Therefore, a fairly significant criterion in the assignment agreement is an indication of which document is used to assign this right, what contracts and documents the seller will need to transfer to the buyer of this right.

In addition, you can name the terms of the assignment, its price, the content of this assigned right and any other conditions if they differ from the conditions established under the original agreement.

The assignment of claims is permitted only if the cost of the contract has been paid or will be paid at the same time as the transfer of the debt to a new party to the agreement, namely the buyer.

If an assignment is made with the transfer of debt, then the document must include additional details on mutual settlements all parties present.

Real estate assignment agreement is a three-way deal and cannot be concluded without the direct participation of the company carrying out the development. must give his permission for the assignment.

At the same time, you should make sure that the apartment has not been assigned to anyone else before.

If the development company refuses to transfer the apartment to the person who previously received the right to it by assignment, he will not be able to shift full responsibility to the transferor and return the money.

As a rule, the developer determines the fee for re-issuing the document or issuing a permit for an assignment agreement.

Documents on the basis of which the transaction is concluded

The party who makes the purchase after concluding the assignment agreement must have the following documents on hand:

Advantages of concluding this type of agreement

As a rule, under the transfer of rights scheme, real estate is sold by investors who buy apartments. There are cases when apartments are purchased in blocks or entrances.

Apartments are purchased in attractive areas of cities at the first stages of construction work.

Sellers have considerable benefits from this - after all, initially, in the first stages of construction, apartments are very cheap. In a few years, the cost of an apartment may increase from forty to sixty percent.

In many new buildings, apartment sales begin at the very beginning of the project, even at the level of obtaining permits. At this time, construction work is just beginning.

During the construction of an apartment building, the price per square meter increases at the following stages:

Often this process of putting a house into operation drags on for a long time, so investors do not want to wait, but immediately begin working according to the assignment scheme.

Requirements for the content of the agreement text

When concluding this type of contract, it is worth paying especially close attention to some nuances.

The contract must necessarily indicate the following:

It is necessary to indicate and possible reasons for termination of the contract both on the part of the developer and at the initiative of the parties transferring the right to the property.

Pitfalls of an assignment agreement

The main difficulty in concluding this type of transaction is that, in addition to the fact that the buyer and seller take part in the transaction, there are third parties involved in the conclusion of the contract, like a construction company and a bank, if a new building was purchased on credit.

In addition, the developer often requires too large percentage of “compensation” money, and the shareholder does not have any legal grounds with which to challenge the requested amount.

In cases where there is a condition, the loan agreement will necessarily contain a condition that the right to real estate cannot be transferred without the consent of the bank. And of course, the issue with the organization regarding loans will need to be resolved before the assignment agreement is concluded.

If we do not take into account all the above circumstances, then the assignment agreement can be considered a fairly safe transaction. In addition, all contracts of this kind undergo mandatory state registration, which makes them even safer.

It is worth noting that the assignment is beneficial for almost all parties.

Video: Features and differences between housing cooperative and residential cooperative agreements and what is an assignment agreement?

The video clearly explains how to purchase housing in a house under construction, talks about the strengths and weaknesses of agreements for participation in shared construction, joining a housing construction cooperative and assignment.

Advice is given on how it is preferable for a shareholder to formalize a contractual relationship with the developer of an apartment building.

Often, in the most attractive new buildings in terms of location and prestige, apartments are sold out even at the initial stage of construction.

In the future, when the construction of a high-rise building is nearing completion, apartments are starting to be actively resold. It happens that during construction work an apartment changes its owner several times.

On what grounds are such apartments resold? What agreement needs to be signed? And what to consider when concluding a deal?

What is this deal?

An assignment in real estate is, in essence, but it is concluded by drawing up an assignment agreement in accordance with the requirements of the Civil Code of the Russian Federation.

In accordance with such an agreement, the person who is the seller of the apartment in a newly built house (the shareholder) transfers to the other party to the agreement (the assignee) all your rights and obligations to the developer as an equity participant.

The general rules for concluding an assignment agreement (or otherwise formalizing the assignment of the right of claim) are indicated in articles 382-390 of the Civil Code of the Russian Federation.

In relation to shared participation in the construction of real estate, such transactions are described in Article 11 of Federal Law No. 214-FZ“On participation in shared construction of apartment buildings...”.

The meaning of the assignment agreement is that the new owner of the apartment, who received it as a result of the assignment agreement, fully bears all the rights and obligations to the developer company specified in the original share participation agreement.

In what cases is an agreement concluded?

A significant part of assignment agreements in relation to real estate are concluded between the investor and the developer at the initial stages of construction.

Often, the sale of an apartment by assignment occurs even before all the necessary permitting documentation has been completed. As a rule, the price of future apartments at this time is minimal.

At the final stages of construction of an apartment building, the cost of housing in them increases significantly. Thus, investors can make a considerable profit when reselling such apartments.

Not only investors whose goal is to make a profit can act as shareholders in the construction of a new building.

Participants in shared construction can also be private individuals who want to purchase housing for themselves at a low price.

However, during construction due to certain circumstances potential apartment owners may change their minds.

In addition to the fact that they need to return the money invested, they need to somehow avoid fines from the developer for non-fulfillment of obligations. In this case, concluding an assignment agreement is the most optimal solution (if not the only one).

Conclusion of an assignment agreement will avoid penalties that could arise in the event of termination of the equity participation agreement. And by selling an apartment in this way, its owners can even receive additional profit, since the rise in price of apartments in new buildings occurs throughout the entire construction.

Transactions on the assignment of real estate can be concluded multiple times until the residential premises are actually handed over by the developer, before the execution of the transfer and acceptance certificate of the property.

Pros and cons of assignment of rights

Conducting real estate transactions under an assignment agreement has its own positive aspects both for the buyer (assignee) and for the investor (shareholder):

If real estate was purchased from a developer company, then the assignee does not have to pay mortgage payments during the long construction period. He starts paying at the final stage of construction work, and often just before moving in.

But hidden in such transactions and certain disadvantages:

1. The risk of the party to the assignment agreement, acting as the buyer, increases significantly compared to the equity holder. If such an agreement is declared invalid for some reason, then the buyer can make claims only against the second party to the assignment agreement, and not against the developer.
2. Possible bankruptcy of the company that is the developer. Of course, such a claim also exists. But very often the sale of apartments in houses under construction even before the completion of construction is associated precisely with the insolvency of the company involved in the development, delays in the delivery of a residential building or violation of equity participation agreements.
3. Multiple transfers of residential premises under an assignment agreement, not sequential, but parallel. That is, the seller sells the apartment to several buyers at the same time. Judicial practice shows that the right of ownership is retained by the assignee who was the first to officially register the assignment agreement.

Subject of the agreement

When concluding an assignment agreement, the buyer must clearly understand that from the moment of signing the document he does not receive the apartment itself, but only rights of claim regarding the future construction project.

That is, the maximum that the assignee can count on is to demand from the developer the delivery of the house under construction on time and in proper form. This is precisely the subject of the assignment agreement.

The buyer will receive the apartment itself only after signing.

At the same time, the developer himself is required to be notified of a change in the person applying for an apartment in the new building. Otherwise, the new owner may have difficulties at the final stage.

Essential terms of the agreement

In order for the document on the basis of which the rights of claim are assigned to have legal force, it must contain certain conditions:

In order to protect yourself as much as possible, the assignment agreement must reflect in advance the responsibilities of the parties and the probable reasons for termination of the agreement, and ways to resolve controversial issues.

Pitfalls of such real estate transactions

The peculiarity of buying an apartment is that when making a transaction, close attention should be paid not so much to the agreement itself, but to the documentation that the assignor and the developer are required to provide.

In the event of force majeure, the seller does not bear any responsibility to the buyer in terms of delivery time and quality of the property. All issues will have to be resolved with the developer.

When concluding a transaction for assignment to the buyer All construction documents should be carefully checked, as if he were buying the apartment directly.

An important point is and. It must have a mark of registration in Rosreestr. Otherwise it may not be valid.

Also need pay attention to interest payments to the developer from the assignment transaction. Typically these costs are borne by the buyer. But it is possible to draw up an agreement under which the amount will be divided equally between the two parties to the transaction.

Payment must be confirmed by a payment document, which is subsequently kept by the buyer.

Another “pitfall” may be revealed if. In the event that the assignor previously made payments not according to schedule, with delays, then for this penalties and fines could be assessed.

When the deal has already been concluded, additional costs are borne by the buyer. And, in addition to the fact that he must make mandatory installment payments, he will also have to pay debt and penalties.

Despite all the possible difficulties and risks, the assignment agreement is a fairly simple document in civil law. With the correct execution of all necessary documentation and a detailed study of the history and reputation of the developer, the risk of such transactions can be minimized.

Video: Buying a new building by assignment - pitfalls

The video explains what an assignment agreement is when making real estate transactions and in what cases it is concluded.

Answers are given about why and to whom this form of transfer of real estate is convenient, what the risk of concluding such a transaction may be, and how to protect yourself when buying an apartment by assigning rights of claim.

​The question of buying a home sooner or later arises in every family. The acquisition of real estate is a long, complex, labor-intensive process and requires considerable material resources. A careless approach to checking the apartment being purchased and incorrect execution of the transaction for the purchase and sale of housing can deprive you of money and square meters. And most often this concerns the purchase of apartments in new buildings for which a certificate of ownership has not yet been received. There are quite a lot of risks associated with it, and therefore the process of purchasing housing in a new building should be treated more than carefully. Today we will analyze the main risks when buying an apartment through the assignment of rights in a house under construction and commissioned.

What type of contract is concluded with the buyer for an apartment in a new building?

The contract concluded when purchasing housing in a new building can be of several types, and this depends on the stage of construction at which it is at a particular moment.

1. Participation agreement. It is concluded at any stage of construction of a house, up to the commissioning of the object for direct operation, that is, until its acceptance by the state commission. It is concluded directly with the developer.
2. Agreement on assignment of rights (claims). This agreement, like the first one, can be concluded during the period from the start of construction until the house is put into operation, but it is no longer concluded with the developer, but with an individual/legal entity that has already purchased this property from a construction company under an equity participation agreement. Or with a person who bought an apartment also by assignment of rights from the one who concluded the agreement. Thus, the chain of such agreements can be almost endless. At the moment when the house is considered completed, i.e. accepted by the state commission and put into operation, registration of assignment agreements is no longer carried out.
3. Pre-purchase agreement. This type can be concluded during the period when the house is handed over, but documents on ownership of the apartment have not yet been received. This is the time period when the house is already completely ready and the owner of the apartment directly (under a contract of ownership or assignment) issues a certificate of ownership of the property. Such registration in new buildings can take quite a long time - up to 1 year, and sometimes situations arise when the acquisition of property rights is decided in court.
4. Sales and purchase agreement. This is a common agreement that is concluded when an apartment in a new building already has an owner with a certificate of ownership.

Assignment agreement in a new building and risks associated with it

As is clear from the above, the assignment agreement is concluded with an individual/legal entity to purchase an apartment from him in a building that is under construction. A purchase under this document can be completed until the house is put into operation.

The practice of concluding such agreements before the delivery of the house is common because such objects are purchased by investors at the stage of digging a foundation pit, at a lower price, but it makes no sense for them to register ownership of the apartment. They are trying to implement it up to this point. In addition, no one wants to deal with that time period, possibly a long one, when the registration of ownership of housing takes place. During this period, it is impossible to sell the object, and this results in an incomprehensible state.

What is the essence of an agreement for the assignment of rights (or assignment)? It is concluded on the basis of an initial agreement with the developer - a “shareholder” agreement. That is, there is the first buyer of the apartment, who most likely purchased it at the very beginning of construction directly from the developer. And between them a DDU was concluded, which is obligatory registered in Rosreestr. On the basis of it, further assignment agreements are concluded, but in fact there is simply a change in the buyer in the DDU agreement. There can be many such changes. Therefore, when completing a transaction, you need to check the availability and accuracy of the initial documents that are transferred to the party purchasing the apartment under the assignment agreement:

1. Participation agreement. This initial agreement with the developer in its original version is with the last buyer of the apartment, in any case. It must be registered with Rosreestr, otherwise it is invalid.
2. All assignment agreements that took place after the conclusion of the DDU. This is necessary so that you can trace the entire chain of buyers of the object.
3. Receipts for payment for the property. All genuine checks and money orders, depending on how the payment took place, are also transferred to the purchasing party. As for payment for the property, it can be made either in full or not, by agreement with the developer, for example, on installments. If there is a debt on the apartment, it is transferred to the new buyer. But another thing is important - the seller may also have overdue debt. Here you should consult directly with the developer about the possible debts of the seller, since overdue debt is a big obstacle to the successful purchase of an apartment, since the construction company can in some cases sue it for overdue debts.
4. The developer's consent to the assignment. In principle, this may not be done by law, but such a clause is provided for in almost all share participation agreements - to notify the developer of the transfer of rights. Therefore, it is best to obtain his permission for this transaction. In addition, the assignment agreement means not only the acquisition of claims to the apartment, but also the receipt of certain responsibilities. If the seller has debts to the developer, they are either repaid before the assignment agreement is concluded or transferred to the new buyer. Only in this case the developer will give consent. The transfer of debt on a real estate property can be formalized by a separate agreement signed along with the assignment, or it can be included as a clause in the assignment agreement itself.
5. An act of acceptance and transfer of all the above documents, signed by both parties to the assignment agreement.
6. Consent of the seller's spouse to carry out this transaction. After all, an apartment purchased under the DDU is also jointly acquired property. And if the property is joint, then there should be several sellers in the assignment agreement.

The presence of all these documents is mandatory, which will protect the buyer from invalidation of the transaction.

An agreement on the assignment of rights (cession) must be registered with the authorized bodies! Otherwise, proving its validity will be problematic.

When deciding to purchase an apartment based on the assignment of rights/claims, it is necessary to carefully study the data of the original contract: the property must have precise characteristics, a floor plan with its location, etc. The real price of the apartment must also be indicated in the contract.

When the house is already rented, problems may also arise. Moreover, it does not matter what kind of agreement is concluded - equity participation or assignment. Obtaining a title deed is sometimes not that easy. It seems that the house is already completely ready, accepted by the state commission, but its final registration of ownership is not taking place. This depends on the fact that the design of a new building goes through many stages, in which not only the developer and “interest holders” participate, but also suppliers and investors who have invested their money. Disputes often arise between participants regarding mutual settlements, debts, etc., which are resolved in court. Until these disputes are resolved, registration of ownership does not occur.

Greater risks may be associated with such a concept as double sales, both intentional and accidental. This means that one apartment can be sold to several persons. This happens because not only shared construction agreements are concluded, but also various types of investment agreements, assignments and preliminary sales. Therefore, when concluding an assignment of an apartment or a preliminary purchase agreement, it is necessary that it be based only on the DDU registered with government agencies, because only records are kept on them in Rosreestr. In other cases, when records are not kept at the state level, you can purchase an apartment that already has owners.