Control of the Transaction Legality and Documents That are Necessary for the State Registration of Real Estate Rights and Transactions Related to it | "Real Estate and Investments. Legal Regulation", the journal

Control of the Transaction Legality and Documents That are Necessary for the State Registration of Real Estate Rights and Transactions Related to it

Piskunova M.G., chair Russian Institute of State Registrars at the Ministry of Justice of the Russian Federation

The analysis of methodical and instruction materials of entities of justice on registration of the rights on the real estate and transactions with it (further - entity of justice), judicial practice on matters with their participation allows to define the characteristic features of registering bodies’ legal activity. In lack of official methodical materials the enforced standard creation of entities of justice carries on to the discrepancy of the registration’s procedure and order realized in the subjects of the Russian Federation. One of the main problems, now, is the definition by entities of justice of the checking limits on lawfulness of the deals with the real estate and document list indispensable for the state registration of transactions and rights on their basis. The concepts of “legal expertise” and “the doubts in the existence of basis for state registration” introduced by the Federal Law “On the state registration of the rights on real estate and transactions with it” (further - Law on state registration) render subjective influence to a procedure of registration. In practice the officials of the entities of justice require the documents frequently not having relations to the acquiring and registration of the rights on the real estate.

The present publication is an attempt to define the checking limits of the real estate transactions’ lawfulness by entities of justice, and also the document list indispensable for the state registration, and demands to them according to the current legislation.

1. The check-up of the real estate transactions’ lawfulness and the competency of the entities of justice

The ascertaining, modification or cease of the civil rights or duties can be entailed only with the valid deal. The following conditions of the deal’s validity are distinguished in the jurisprudence: 1) the legal personality of sides (possession by the legal capacity and active capacity, indispensable for the given agreement), 2) the correspondences of the subjective will of sides to objective declaration of the intent, 3) the observance of statutory or agreed by sides form of the deal, 4) lawfulness of the deal (correspondence to the law or various legal acts). Thus, the lawfulness of the deal is one of the conditions of its validity. However according to the article 168 of the Civil Code of the Russian Federation, the deal, mismatching the demands of the law or diverse legal acts, is void, if the law does not set, that such deal is voidable, or does not envision the other consequences of violation. Thus, not any deal, mismatching demands of the law, is void, in statutory cases it can be contested and is recognized invalid judicially. Up to the moment of the confession by the court the invalidity of the deal, it is real and generates those legal effects, at which it was directed.

However, the state registration as the juridical act of confession and confirmation, by the state, of the deals’ lawfulness and transition of the rights, introduces the stricter legal regime of the deals with the real estate. The clause 1 of the article 13 of the Law on state registration refers the check of lawfulness of the deal with the real estate to the competency of the entities of justice. This check-up is not dependent on whether non-conformity to the law carries out the insignificance of the deal or admits its voidability. If the deal does not correspond to the demands of the law, it would not be registered and the rights on its basis would not be transacted as in a case of the insignificance as well as in case of voidability of the deal. For example, according to the clause 1 of the article 20 of the Law about state registration one of the basis for the refusal in registration is the non-conformity of a content of the introduced documents to demands of the current legislation.

An opinion exists that registrar has no right to refuse in registration of the voidable contract, as the confession of such agreement invalid is a competency of court. However taking into consideration the fact that the entities of justice are bodies of the indisputable jurisdiction, it is clear, that the legal expertise at state registration should prevent arguments concerning the estates in land, instead of increasing their quantity. For example, the deals under the disposal of the real estate, concluded by the minors senior than 14 years without the consent of the legal representatives (the article175 of the Civil Code of the Russian Federation) are voidable, because the minors senior than 14 years are limited by the court in active capacity without the consent of the trustees (the article 176 of the Civil Code of the Russian Federation), the same is with the marital partners who are limited without the consent of other marital partner (the article 35 of the Family code of the Russian Federation). But on the strength of the not correspondence of the deal to the demands of the law, it can be refused in state registration of the agreements and transition of the right on their basis.

At the same time four conditions of the deals’ validity mentioned above show that the legal personality of the sides and observance of the form of the deal are also the demands of the law required from the bargains. For example, the deals of the minors contradict the article 28 of the Civil Code of the Russian Federation, and the agreements of the legal persons outside their special legal capacity contradict the article 49 of the Civil Code of the Russian Federation. The non-compliance of the notarial form of the deal in the foreseen by the law or the agreement of parties cases contradicts the clause 2 of the article 163 and the clause 1 of the article 434 of the Civil Code of the Russian Federation. Thus, both the legal and active capacities of parties and the form of the deal are indispensable conditions of its lawfulness defined at the legal expertise by the entities of justice. According to the demands required by the local law from the content of the agreements, and also from the provisions of the Law about state registration it is possible to define the following conditions of lawfulness of the transactions with real estate, the checking of which is a competency of the entities of justice:

the legal and active capacities of the parties;
the presence of the indispensable authorities of the parties representatives of the agreement;
the holding of a contract form (the simple written or notarial in the form of one document signed by parties);
the presence of statutory significant terms of the contract;
the fitting of the property to the person disposing the real estate, or the authority on the disposal of the real estate by the non-holders of the property;
the holding of the rights and legal interests of the third persons who are not participating in the deal, and also the public concerns in statutory cases;
the lack of the rights’ limitations of the person disposing the real estate, and in case of their presence - the indicating of these conditions in the agreement.

At the state registration the agreement appears as a self-supporting object of registration (the contracts which are being subject to the state registration), and also as the basis for state registration of the right transition (executed contracts of the real estate disposal). The agreement, being subject to the state registration, is considered as the concluded from the moment of its registration (the clause 3 of the article 433 of the Civil Code of the Russian Federation). From this moment (if diverse is not established by the law) there are obligatory relations between the participants of the agreement. In this case registered agreement appears as the legal relation. If the agreement with the real estate is not subject to the state registration, the agreement is considered as the concluded from the moment of signing by the parties, and the obligatory relationship arises without the act of the state registration of the agreement.

The execution by parties of the real estate alienation contract terms indispensable for transition of the right is the juridical fact generating the right for the purchaser of the property. The right on the alienated real estate arises from the moment of the state registration of the right (the clause 2 of the article 8 and the clause 2 of the article 223 of the Civil Code of the Russian Federation), if diverse is not established by the law. In this case the agreement, executed by parties, irrespective of is it registered or considered as the concluded without the registration, appears as the juridical fact. The checking of the agreement lawfulness should be effected by the entities of justice irrespective of, whether the agreement is subject to the registration or it is only the basis for registration of the right transition. For example, the contracts of sale and purchase of living quarters are subject to the state registration (the article 558 of the Civil Code of the Russian Federation) and the firms as property complexes are also (the article 560 of the Civil Code of the Russian Federation). The state registration is not required in case of an inference of the contracts of the diverse real estate purchase (buildings, facilities, uninhabited premises, garden and country houses, land lots). But in both cases the transition of the right to the buyer is subject to registration (the article 551 of the Civil Code of the Russian Federation), therefore the checking of lawfulness of sale and purchase contracts as basis for the right transition registration should be carried out irrespective of the kind of the sold real estate.

The law on state registration does not establish any limitation of the entity of justice competency while checking the agreement lawfulness depending on its form. The legal expertise and the lawfulness checking should be operated even in case of the notarial certification of the deals. It is difficult to recognize justified the statement, that the revision of the notarially certified deals with the real estate on the observance of the substantive law at the certification is illegal (Bekh О.В. The separate problems of applying of the federal Act “ About the state registration of the rights on the real property and agreements with it” in the judicial practice. // Notarious. 1999. № 3. p.15). As it is marked in the indicated review of the judicial opinion, the checking of the notarially certified deal lawfulness should be limited with the checking of the notary rights, because the agreement certified by him is in force only if the competent bodies do not establish diverse, and the documents checking, on the basis of which the notary has certified the deal, is only the notary checking, that is not referred to the entities of justice competency. However according to the clause 1 of the article 165 of the Civil Code of the Russian Federation the non-compliance of the deal state registration demands attracts the voidity of the deal in statutory cases. The notarial certification of the deal is only transforming of the agreement into the statutory or stated by the agreement of parties form.

The observance of a contract form is an indispensable, but inadequate condition of a validity of the deal. In spite of the fact that the notary tests the agreement lawfulness, certified by him, the entity of justice also should exercise the check-up of the agreement lawfulness. It would be desirable to mark that there is a significant difference between such notarial actions, as the agreements’ certification and the issuing of the certificates on the right of the patrimony. In the former case the notary, acting according to the Fundamentals of the Russian Federation legislation on notariate, gives the agreement the qualified form, but it does not give the parties’ agreement the force of the indisputable juridical act. Moreover, if the notarially certified agreement, which is being subject to the state registration, will further not be registered, it will not be considered as concluded, it will not come into force and will not cause those legal effects, on which it was directed. So the agreements do not fall under the indisputable jurisdiction of the notarial actions. Quite the contrary, the issuing of the certificates on the rights of the heirs by the notary is an operation confirming the indisputable juridical fact, or to be more exact an operation which sets the whole complex of juridical facts generating heritable legal relation.

Committing the indicated notarial action, according to the Fundamentals of the Russian Federation legislation on the notariate, the notary tests the facts of the estate-leaver death, the family relations, adoption of the patrimony. fitting of the asset to the estate-leaver, the time and the place of the inheritance opening etc. Therefore in the article 17 of the Law on the state registration the certificate on the patrimony right is indicated as one of the basis for the state registration of the rights. And in this case, the entity of justice legal expertise should include the validity check-up of the sent document (the competency of the notary and the presence of information indispensable for state registration), and also a research of the Unified state registry on the subject of the contradictions between the stated and earlier registered right on the heritable object. The check-up of the family relations, the size the shares due to the legal heirs under the law or under the last will, the observance of the right on a compulsory share etc., i.e. the notarial action revision – the issuing of the certificate on the right of the patrimony does not go into the entities of justice competency.

2. The documents, required for the state registration

Proceeding from the demands of the article 16 and the article 17 of the Law on the state registration, the document list can be conditionally divided into following groups: 1) documents identifying the applicants; 2) constituent documents of the legal entities; 3) documents confirming the agreements legal owners and participants representatives’ authorities; 4) applications; 5) documents on the registration repayment; 6) right establishing documents; 7) description of the real estate object; 8) addendums in statutory cases.

2.1. The documents, identifying the applicants

These documents should be shown both by the legal owners and participants of the deal, and their representatives, and also by the representatives of the legal entities. The personality of the physical person is identified by means of one of the following documents: the passport of the Russian Federation (USSR) citizen; the common overseas passport of the Russian Federation (USSR) citizen which has gone away in other state on the constant habitation and which is temporarily found on the Russian Federation territory, the common overseas passport of the foreign subject having a registration mark in law-enforcement bodies or other authorized bodies; the certificate of birth issued by the registry office (for the minor); the residence permit of the foreign subject or stateless person; the certificate of the serviceman identity in case of active service; the army papers of the serviceman at the regular military service; the passport of the seaman; the temporal certificate of identity of the Russian Federation citizen under the form № 2P; the certificate on the reviewing of the application on the confession of the refugee on the territory of the Russian Federation; the certificate of the refugee issued by a body of a migratory service.

2.2. Constituent documents of the legal entities

The constituent documents contain of the information mandatory for the rights’ state registration: the full naming, the legal address, the date and the place of the legal entity state registration, the address of actual location. The legal capacity of the organization, the legal regime of its property, the order of control, for example, the principal’s competency while making a decision about the committing of the deals, are also defined by the constituent documents. The charters, or the articles of incorporation, or only the articles of incorporation and charters are the constituent documents of the legal persons.

In the cases, foreseen by the law, the noncommercial organizations can act on the basis of the general regulations on the organizations of the given kind (the clause 1 of the article 52 of the Civil Code of the Russian Federation). So, the Regulation on the territorial fund of the mandatory medical insurance is affirmed by the Decree of the Supreme body of the Russian Federation of February 24, 1993. N 4543-I. Regulation on the State tax service of the Russian Federation is affirmed by the Decree of the President of the Russian Federation of December 31, 1991. N 340 (with the modifications and supplements of April 6, December 16, 1994, July 22, 1998). In such cases the introducing of the personal act about the creation of the organization, for example, the command or the order of the principal of higher organization, is necessary. These acts contain the information about the name and location of an organization, which are not presented in general regulations.

According to the clause 18 of the Rules on the Unified state registry of the rights it is also necessary to introduce the certificate on state registration of the legal entity and the circular of the territorial tax inspection on conferment of the PINT (personal identification number of a taxpayer) for carrying in the registering record. It is not necessary, but obviously possible to introduce a duplicate of the certificate on the conferment of the statistical codes on the organization with the registration documents. According to the all-Russian classifier ACEO is a personal code of firms and organizations, according to the all-Russian classifier of the enterprises and organizations, which allows to find in an intelligence system the legal person (its assignee) after a modification of its naming or reorganization.

2.3. The documents confirming the agreements’ legal owners and participants representatives’ authorities

To the indicated category of the state registration relations’ participants it is possible to refer: 1) the bodies of legal entities; 2) the legal representatives of the minors, and also the guardians and trustees of the incapable or not completely capable citizens; 3) representatives of the state or domestic home rule authorized on the basis of the state acts; 4) representatives of the physical and legal entities authorized on the basis of the letters of attorney or the agreement; 5) persons who are not the legal owners of the property, but participating in the deal on their own behalf.

1) As a rule, the privately-owned bodies (principals) act on behalf of the legal entities. Their authorities can be reconfirmed by the extract from the founders general meeting minutes (participants, shareholders, terms) about the election of the legal person body, or by means of the command on assignment of the director (by a concluded contract) (for organizations which have only one founder, including state and municipal firms).

If the organization is found at the stage of liquidation, the authorities on control transfer to a liquidating commission (the clause 3 of the article 62 of the Civil Code of the Russian Federation). In this case the extract from the founders general meeting minutes (participants, shareholders) or the solution on a liquidating commission assignment of the alone founder (liquidator) is represented.

If the procedure of bankruptcy is initiated concerning the organization - debtor, at the stage of supervising the bodies of the debtor continue to carry out the authorities (the article 58 of the federal Act dated January 8 1998г. № 6 the Federal Law “ On the incompetence (bankruptcy) ”). From the moment of the exterior management introducing the principal of the debtor is removed (the clause 69 the Law on bankruptcy). The exterior management acts on behalf of the organization, and its authorities are reconfirmed by the definition of arbitration court on the introducing of the exterior management and the assignment of the exterior manager (the article 72 of the Law on bankruptcy).

The special order of management is established in the consumer societies. The general meeting of the consumer society, the council and the board of the consumer society, as the executive board, carries out the consumer society control. To exclusive competency of advice are referred: the carrying out of the society representation, the alienation of the consumer society property (except the property, the cost of which exceeds the defined by the consumer society charter), the issuing of the letters of attorney on an inference of the agreements (the clause 4 of the article 19 of the federal Act N 97 of June 11, 1997, the Federal Law " On the modification and supplements to the Legislation of the Russian Federation " On the consumers' cooperation in the Russian Federation "). Thus, the chairman of the council stating on behalf of the consumer society about the state registration of the rights, shows the solution (extract from the solution) of the shareholders’ general meeting on its election to confirm his authorities. If the chairman of the council or chairman of the board concludes a deal over the society property disposal, his authorities should be reconfirmed by the solution of the council.

2) The legal representatives of the minors from 14 till 18 years old are their parents, adopters or trustees (the clause 1 of the article 26 of the Civil Code of the Russian Federation), and the legal representatives of the minors till 14 years old (of tender age) are the parents, adopters or guardians (the article 28 of the Civil Code of the Russian Federation). The authorities of the parents and adopters are reconfirmed by the certificates issued by the registry office according to the federal Act N 143 of November 15, 1997 the Federal Law "On the certificates of registration". Parents submit the certificate of birth, and the adopters – the certificate of adoption (articles 23, 43 of the indicated law). The guardians and trustees submit the certificate issued by bodies of the guardianship.

3) On behalf of the public participants of civil circulation (the Russian Federation and subjects of the Russian Federation) the public authorities appear within the framework of their competency established by the acts, defining the status of these bodies. On behalf of the municipal formations the local authorities appear within the framework of the competency. The system of federal executive bodies now is defined by the Decree № 710 of the President of the Russian Federation of July 9, 1997. The system of the Russian Federation subjects’ public authorities is defined by the constitution of the republic-member of the Russian Federation or the charter of the territory, province, or any other subject of the Russian Federation. The structure of the domestic home rule is defined by the charter of the applicable municipal formation.

It is necessary to show the appendix of the document reconfirming the authority of the authorized body representative, in case of the application presenting on the state registration of the indicated public owners rights or the deals with their participation. For example, the letter of attorney of the municipal formation administration representative or the property management committee. The principals of the public authorities or the domestic home rule act from their name without the letter of attorney, it is enough for these persons to show the command on their assignment. The legal acts, which define the status of given bodies, are the public documents. They come into effect after the publication in the correspondent local press bodies of the subject of the Russian Federation or the municipal formation, therefore the introducing of its originals it is not required.

The cases of the authorities’ representation and management on behalf of the public formations should be distinguished from the operations of the indicated organizations from a specific name. The ministries, administrations, departments, committees, as a rule, are the legal persons in the organization-legal form of the entities possessing the own civil legal capacity. These subjects can independently participate in the civil circulation. The real property acquired by them from their specific name goes to the operating management according to the article 299 of the Civil Code of the Russian Federation.

4) The representatives of the physical and legal persons according to their authorities founded on the letters of attorney, can have as the authorities on committing of the deals with the real estate, and also on introducing of the interests at the state registration. The deal can be concluded directly by the legs, and the introducing of the interests at the state registration can be entrusted to other persons. The letters of attorney are made out according to the demands of the chapter 10 of the Civil Code of the Russian Federation with the mandatory statement of the issuing time. The letters of attorney of the legal persons should be signed by the principals with the apposition of the legal person’s seal (the clause 5 of the article 185 of the Civil Code of the Russian Federation). The letters of attorney issued by the principals of the subsidiaries, are the letters of attorney issued by way of the recommitment, and that is why these letters of attorney are subject to the notarial certification, though they can have a reprint of the subsidiary seal (the clause 3 of the article 55, the clause 3 of the article 187 10 of the Civil Code of the Russian Federation).

The notarially certified letter of attorney is required for committing of the deals in the notarial form (the clause 2,3 of the article 185 of the Civil Code of the Russian Federation). It is recommended to indicate the year of birth and nameplate data of the principle apart from the obligatory data in the letter of attorney, as this information is necessary for entering into the Unified registry and in the Certificate on the property right.

Formally it is possible to have a representation at the state registration on the basis of the letter of attorney in the simple written form. However in this case the registrar can have doubts connected with the authenticity of the document. Therefore it is recommended to certificate notarially the letter of attorney while introducing the interests at the state registration. At the same time, for example, such situation is possible: the legal owner gives the documents for registration personally, and orders to receive them to other person. It is thought, that in this case the letter of attorney can be constituted directly in the entity of justice. It is worth here writing down a mark of the official authorized to receive or to issue the documents and who is present at the constituting, similarly to the official registration of the letter of attorney on the receiving of the deposits, wage or mail correspondence certified by bank or the mail organization (the clause 4 of the article 185 of the Civil Code of the Russian Federation in the edition of the federal Act, dated August 12, 1996, № 111 the Federal Law).

It is necessary to pay more attention to the form of the letter of attorney on committing of the deals, which is completed in the simple written form. The law does not establish the mandatory notarial form of the letter of attorney on committing of the deals with real estate, which is completed in the simple written form. However the introducing of the letter of attorney completed in the simple written form, can become the reason for the appearing of doubts from the point of view of the registrar connected with the existing of basis for the state registration. The doubts can arise not only with the authenticity, but also with the validity of the document. The operation of such letter of attorney can be canceled by the person issuing it, or the death of the person issued it, (the article 188 of the Civil Code of the Russian Federation). The similar doubts can arise, if the representative acts under the notarially certified letter of attorney, the tenor of which ends in one of the coming days. In this case according to the article 19 of the Law on state registration the representative has the right to show the corroborating evidences, for example, the approval of the legal owner of the deal, from which name the deal is accomplished (notarially reassured or made out in the body of registration).

The concluding of the contract and introducing of the interests at the state registration is possible on the basis of the general letter of attorney, which one authorizes the representative to conclude the different deals and to represent the legal owner in all competent bodies without the direct reference on the state registration. Such letter of attorney should not be withdrawn by a registering body, but should be presented in the original with the enclosure of a copy.

The special demands are established to the letter of attorney on committing of a donation by the clause 5 of the article 576 of the Civil Code of the Russian Federation, in this letter of attorney should be indicated the subject of donation and the donee should be named. If the contract of donation concluded according to the letter of attorney, which does not correspond the indicated demands, is presented to the registration, it should be required the forward approval of the agreement by the donor (the article 183 of the Civil Code of the Russian Federation). The given demand limits the authorities of the subsidiaries’ principals on the gratuitous disposal of property. In case of gratuitous alienation of the real estate by the subsidiaries’ principal on behalf of the legal person it is necessary to present either limited letter of attorney, or the approval of the deal by the authorized body of the legal person.

The definite complications can be created by the letter of attorney issued by a party of the agreement to the marital partner of the other party. Such cases took place in practice, when the representative of the vendor from his name signed the contract on purchase with his own wife. According to the article 35 of the Family code of the Russian Federation the acquired property is the joint property of the marital partners, irrespective of on whose name it is acquired (if the marriage contract does not establish the diverse condition of the property). In the given example the representative of the vendor appeared simultaneously as a purchaser of the property. According the clause 3 of the article 182 of the Civil Code of the Russian Federation the representative is forbidden to commit the deals on behalf of the legal owner concerning himself personally. The entity of justice has the right to ask the deal to be approved the legal owner himself. Therefore vendors are not recommended to issue the letter of attorney to the marital partner of the buyer.

Despite the mandatory notarial form of the pledge contract, the clause 6 of the article 74 of the federal Act dated July 16 1998. № 102 the Federal Law “ On the mortgage ” does not enable concluding of the deal of an apartment house (flat) mortgage on behalf of the citizen by means of the letter of attorney.

The representation can also be founded on an agreement. While concluding the agreements which are connected with the sphere of enterprise activity the commercial representative acting on the basis of the agreement, on behalf of the businessmen (the article 184 of the Civil Code of the Russian Federation) can appear. The agreement or the letter of attorney establishes the range of authorities. If the representative acts on behalf of the legal owner on the basis of the contracts of agency, the authorities of the attorney are reconfirmed by the letter of attorney (the clause 1 of the article 975 of the Civil Code of the Russian Federation). In case of concluding a deal with real estate by the agent on behalf of the principal, standards about the contract of agency are applied to the relations of the representation (the article 1011 of the Civil Code of the Russian Federation), and the authorities of the agent are also reconfirmed by the letter of attorney.

5) The legal power of the property disposal can be transferred by the owner to other persons. For example, real estate can be transferred to fiducial control (including the property of the ward or of the absent citizen (the article 38, 43 of the Civil Code of the Russian Federation). The deals with the property, transferred to the fiducial control, are committed by the fiducial manager from his own name, thus in the documents after the name or naming the mark “ F.M. ” is put (the article 1012 of the Civil Code of the Russian Federation). The authorities of the fiducial manager are defined by the agreement of fiducial control. As a rule, the owner is the founder of fiducial control. If the fiducial control is founded on the basis, foreseen by the law (the article 1026 of the Civil Code of the Russian Federation), rights of the founder can belong to a body of guardianship, legal representative (executor) or any other person indicated in the law. The transfer of the real estate to fiducial control should be recorded by the entity of justice (the article 1017 of the Civil Code of the Russian Federation). If the possibility of the property disposal is not stipulated by the agreement of fiducial control, the fiducial manager can conclude the agreement on behalf of the owner, acting by the letter of attorney.

In case of bankruptcy the competitively-elected managers are not the representatives of the legal persons (the clause 2 of the article 182 of the Civil Code of the Russian Federation). The debtor property deals they commit from their specific name, but representing the interests of other person. The authorities of the competitively-elected manager are reconfirmed by the solution of the arbitration court on the confession of the bankruptcy of the debtor, the opening of the competitive proceeding and assignment of the competitively-elected manager (the article 99 of the Law on bankruptcy).

The specialized organization has the right to be a vendor of the property and conclude the deals with real estate on its own behalf, while selling the real estate of the debtor on public tenders, by the way including the reference of penalty from the arrested or pledged property. The agreement on the conducting of the public tenders is concluded with the given organization (the clause 2 of the article 447 of the Civil Code of the Russian Federation, the article 62 of the federal Act dated July 21 1997. № 119 the Federal Law “ On the executive proceeding ”). The sale contract is concluded by means of signing a treaty on the outcomes of the tenders (the clause 5 of the article 448 of the Civil Code of the Russian Federation). While selling the pledged property after the setting of a purchase price the organizer of tenders signs the contract of purchase with the person who has won the tender. But the basis for the entering of the recordings about the right of the buyer are both minutes on outcomes of tenders and the agreement (the clause 8 of the article 57 of the Law on the hypothecation). As the sale on tenders is the special public act committed in established cases apart from will of the property owner, details of the state registration of the rights on such property are not discussed in this work.

2.4. Application for the state registration

The main principle of the state registration is the application order. Without the application on registration of the deal or right the registering operations do not start. The registration of limitations (encumbrances) originating by virtue of the law or the judicial acts is the elimination from the application order. For example, the pledge by virtue of the law arises at a sale and purchase with the installment plan of paying (the clause 5 of the article 488 of the Civil Code of the Russian Federation) or at a transfer of the real estate under disbursement of the rent, providing of perpetual maintenance with dependence (the clause 1 of the article 587 of the Civil Code of the Russian Federation). These limitations arise from the circumstances indicated in the Civil Code, apart from the will of the parties and without the act of the state registration. Their inclusion in the Unified state registry of the rights is a duty of the registrar for ensuring the lawfulness of the further agreements with this property. The decision on the arrest of the property of the defendant in ensuring of the legal action is executed immediately, therefore in case of receiving a duplicate of the given document the recording about the arrest is carried in the registry without the application of the interested person.

The application for the registration of the right can be submitted by the legal owner or his representative. The order of submitting of the applications for the registration of the rights of the minors corresponds to the order of deals committed on their own behalf. The application is submitted by its legal representative - parent, adopter, guardian on behalf of the minor (till 14 years). The minor aged from 14 till 18 years hands in an application by himself, but with the consent of the legal representative - the parent, adopter, trustee. The application for the registration of the right on the joint property hands in any of the joint owners, there are pointed all the joint owners, whose right is a subject to the registration. The application for the registration of a share in the right of the joint property each of the joint owners submits from his name.

One of the conditions of the deals’ validity is the correspondence of the will to the declaration of intent of the parties. Submitting of the application on committing a definite registering operation should show the real will of the parties aimed at the alienation or acquiring of the property. The application order acquires special importance at sale and purchase of the real estate. At sale and purchase of housing two registering operations (the registration of the agreement and the registration of transition of the right to the buyer) are committed, at sale with the installment plan of paying the pledge registration by virtue of the law is also committed. For example, the vendor can present the application only for registration of the agreement (deal) and not to intercede for registration of the transition of the right to the buyer. If the agreement is not executed in a part of transition of the right, the sale and purchase is the agreement with the pending execution (for example, the price of the property is not paid, the property is not transferred) or the property right is saved for the vendor before the repayment of the property (the article 491 of the Civil Code of the Russian Federation), the state registration of the buyer’s right can not be carried out only according to his application. The application for registration of transition of the right to the buyer is represented by both parties after the execution of the responsibilities, necessary for transition of the right by them.

It is necessary to pay special attention to the order of presenting of the applications, established by the article 16 of the Law on the state registration of the rights. The presenting of the notarially certified agreement application by one of the parties is operated according to the given standard in cases: а) of proper filling in and committing of the agreements; b) of execution of the treaty obligations in a part of an ownership transfer of the property by parties. For example, notarially certified contract on purchase of a house or a garage contains the points on full repayment of the property before committing a deal, and the transmission act, signed by both parties, is also enclosed to the documents. In this case the registration of the right transition can be carried out according to the application of one buyer. In case of the agreements with the pending execution (for example, the contracts of purchase, in which the parties have stated the transition of the right by partial or full repayment of the property) the registration of the right transition to the buyer should be held on the basis of the application of both parties.

Sklovskiy К. I. in his work “The property in the civil right” (Moscow.: Delo. 1999. p.368) pays attention to the fact, that in the article 17 of the Law on state registration, the agreement is considered a basis, but not the act of transfer or any other act of transition of the property right, as in the article 551 of the Civil Code of the Russian Federation. While using this standard, the buyer can have an opportunity to require the registration at a one-side order, whereas his action on a duty of the vendor to sign the document on transfer of the real estate (the clause 1 of the article 556 of the Civil Code of the Russian Federation) will be dispossessed the prospects so long as he, for example, carries out the counter obligation on payment. Taking into account, that the one-side registration will be mainly a subject of a trial, the author believes, that the discrepancies in the formulas of the article 551 of the Civil Code and the article 17 of the Law will be settled in favor of the Civil code standard.

Thus, if the documents, subjects to the registration, do not include the information about the conclusion of the deal and keeping to the obligations in a part of transfer of the rights on property, the order of submitting of the application by one of the parties even in case the material contract is inapplicable.

It is necessary to recognize that these provisions of the clause 1 of the article 16 do not regulate submitting of the applications on the state registration of the deals. Defining the order of submitting of the applications for the registration of the deal, it is obviously necessary to use the general regulations and special regulations of the Civil Code. The deal subject to the state registration is considered concluded from the moment of registration (the clause 3 of the article 433 of the Civil Code of the Russian Federation). It is impossible to recognize the inmate the notarially certified, but not registered deal, not registered deal is void and can not be the basis for the registration of transition of the right. After the notarial certification of the agreement the parties have only one duty: to commit the actions necessary for the state registration of the deal. But up to this moment any of the parties has the right to refuse to conclude a deal. The clause 3 of the article 165 of the Civil Code of the Russian Federation establishes, that in case of evasion of one of the parties from the registration of the deal accomplished in a proper form, the decision on the registration of the deal is accepted judicially. Thus, the features of registration connected with the notarial form of the agreement are not established by the given standard. The court, while solving the controversy, will consider the reasons of evasion of one party from registration, as well. If those will be recognized ungrounded, the court has the right to make a decision on the registration of the deal and on the compensation of the losses called by the detention in registration to the other party (the clause 4 of the article 165 of the Civil Code of the Russian Federation). But in case of confession by the court of evasion from registration reasonable the judgement can be accepted and not in favor of the claimant. Thus, irrespective of the form of the agreement, for the state registration of the deal the both parties should commit the action.

Taking into account the criminalisation of the housing market and the peculiarities of payment of the sold real estate the necessity for all the participants of the deal (their representatives) to present the applications on the state registration of the agreement into the entities of justice is rather effective protection of interests of the parties and the guarantee of the deal’s legality. The cases of submitting of the applications for the registration after the death of one of the participants of the deal are rather frequent in the vast judicial practice of the entities of justice. The deal, where one of the parties is not alive at a moment of the state registration, does not only corresponds to demands of the law because of the ceased legal personality of the participant of the deal, but also causes doubts over its validity. Thus, the necessity of the presenting of the application on the registration of the deal by both parties is not only legal, but also reasonable demand of the entities of justice.

Proceeding from the above-stated it is possible to define the following order of the submitting of the applications on state registration of the deals on the alienation of the property and rights arising on their basis:

all the parties of the agreement submit the applications on the registration of the deal irrespective of its form;
all the parties of the agreement submit the applications for the registration of transition of the right as the result of committing a deal, concluded in the simple written form;
if the documents, submitted for the registration, show the execution of the obligations necessary for transition of the right, the purchaser of the property submits the application for the registration of transition of the right on the basis of the deal, notarially certificated and registered in statutory cases;
if the documents, submitted to registration, do not show the execution of the obligations necessary for transition of the right, all the parties of the agreement submit the application for the registration of transition of the right on the basis of the deal, notarially certificated and registered in statutory cases,.

2.5. The description of the real estate objects

According to the clause 1 of the article 17 of the Law on the state registration the plan of the land lot or the plan of the real estate object is the obligatory enclosure to the documents. The following documents certified by bureaus of the technical inventory control (BTI) can be presented for the state registration of the rights on the real estate objects: copies of the technical passports; extracts from the technical passports containing plans and explications of the premises; applications with the enclosed plan (with the copies of the plan of each floor) and explication of the premises.

At the same time the information on presence or absence of earlier registered and taken into account by BTI arrests, interdictions, other limitations (encumbrances) of the rights is necessary for saving the succession in the registration of the limitations (encumbrance) of the rights at a “primary” registration in the Uniform state register. Several BTI, at a presence of such kind of records, do not issue the engineering specifications, other BTI indicate the absence of the limitations in the technical description of the object. If the presence or absence of limitations is not specified in the description of objects, the form 11а (so-called form on disposal) in addition is necessary for registration of the rights of the applicant who has addressed to the entity of justice for the first time. (If the notarially certified agreement is presented for the registration, the copy of such application, signed by the notary at the certification of the deal is enough.) The entity of justice in the order established by the clause 3 of the article 8 of the Law on the state registration has the right to request independently the information on limitations and prohibitions from BTI.

According to the clause 5 of the article 18 of the Law on the state registration, all the necessary documents are presented to the entities of justice not less than in two copies. After the registration the documents containing the description of the object, should be returned to the legal owner. According to the clause 42 of the Rules of conducting of the documents’ accounting books and cases of the right establishing documents, at a state registration of the rights on real property and transactions with it, in the case, there is a copy of the plan of the real estate object certified by the worker of the entity of justice, with the indication of the person who has received the original of the document. Further at a committing the deals the technical passport of object (or other document) can be transferred by the legal owner to the purchaser simultaneously with the transfer of the real estate according to the clause 2 of the article 456 of the Civil Code of the Russian Federation.

It is necessary to emphasize that the technical passports and extracts from them are not the right establishing documents. The information on the legal owners, specified in them, have no legal force. Therefore if the previous owner is specified (or is not specified at all) in the technical passport (extract, application), it does not interfere to commit the state registration of the deal and rights of the new owner. The technical description is a source of the information about the real estate object, but not about the rights on it. Remaking of a copy of the technical passport or a renewal of it for the new legal owner is not required for the state registration.

The entities of justice of different regions each time require the presentation of the application from BTI for the registration of the transition of the rights on the same object (similarly to the application on the form 11а), or the application “ about the absence of changes of the object ”. The agreements between the organizations of BTI and the entities of justice of the subjects of the Russian Federation establish various “duration” of validity of such information: 10 days, 1 month, 6 months etc. These demands do not correspond to the normative acts, which regulate the order of registration and the activity of the entities of justice. Even in case of presentation of the “overdue” application the entities of justice does not have bases for the refusal in the order stated by the article 20 of the Law on the state registration. The reasons, by which the officials are guided, as a rule, are of such kind: “ Is it possible that there is a re-planning or unwarranted construction? ” It is necessary to note that the fact of unwarranted re-planning of a flat does not cause the cease or limitation of the rights on it and is not the basis for the refusal in registration. So, by the decision of Petrozavodsk municipal court of the Republic Kareliya dated November, 4, 1998 under the claim of Shitsel М.L. the refusal of the Center of the state registration on the basis of the fact of re-planning was recognized improper. The court has pointed, that the control of the technical operation of flats is assigned to the authorized architectural - building departments and it is not included into the functional duties of a registering body (Beh О.V. Separate questions of using of the federal Act “ About the state registration of the rights on the real property and bargains with it ” in the judicial practice // the Notary. 1999. № 3. P.16). If the legal owner builds up an unwarranted extension to an apartment house or autocratically builds separate construction, it does not cease the rights on an apartment house and does not interfere with the registration of the further deals with it. Thus the unwarranted construction is not included in a composition of the real estate and does not change its characteristics (area, the quantity of floors).

The agreements between the entities of justice and the organizations of the technical registration should define an order of interaction and exchange of information between them, but not to establish duties of the citizens, which were not statutory and the legal acts. According to the clause 3 of the article 8 of the Law on the state registration, the entities of justice have the right to request independently the necessary information from BTI.

If after the registration of the right on the object in the Uniform state register, the right establishing documents containing the description of the real estate object, which is appropriate to the data of the register are presented for the registration, the additional information about the object, and also “ the confirmations of the absence of changes ” is not required. If the documents containing the description of the object, which differs from the data of the sub-section I are presented for the registration, the entity of justice is obliged to require the new description of object certified by BTI. The modifications on the basis of the new data of the technical registration are made in the records of the sub-section I. Thus the enclosure of the licensing document on modification of the object (admittance to re-planning, extension etc.) is not obligatory. These documents will require the bodies of the technical registration, as according to the article 31 of the Law on the state registration of the rights only they have responsibility for the accuracy of the information about the real estate objects.

The right establishing documents on the land lot occupied by the real estate are necessary for the registration of the deals and transition of the rights on separately costing buildings, apartment houses and other objects. So, according to the article 554 of the Civil Code of the Russian Federation, in the sale contract of the real estate the information on the property, including the information defining the disposition of the real estate on the appropriate land lot should be specified. However the absence of the documents on the land is not the basis for the refusal in registration of the rights at a presence of properly made out right establishing documents on the real estate.

2.6. The additional documents for the state registration

According to clause 2 of the article 17 of the Law on the state registration, the additional documents should be presented in statutory cases. It is not always possible to define, whether the given document is required at this stage of reception of the documents on the state registration, this fact can be established at a legal expertise. It is clear, that exactly the absence of the necessary additional document, which corresponds to the law, is the reason for the appearing of the doubts in the actions of the registrar according to the clause 1 of the article 19 of the Law on the state registration of the rights.

The analysis of the current legislation allows establishing the following cases of necessity of representation of the additional documents on the state registration.

1. The transfer certificate or any other document, confirming the execution of the obligations on the transferring of the property is necessary if the subject of the transition of the right is registered on the basis of the contracts of purchase (the article 556 of the Civil Code of the Russian Federation), rent with the right of the redemption (the clause 1 of the article 655 of the Civil Code of the Russian Federation), exchange (the clause 2 of the article 567 of the Civil Code of the Russian Federation), rent with the compensation (the clause 2 of the article 585 of the Civil Code of the Russian Federation) which include the transfer of the real estate by disbursement of the rent, agreements on compensation (the article 409 of the Civil Code of the Russian Federation) and agreements on the dissolution of the contract with the return of the property (the clause 4 of the article 453 of the Civil Code of the Russian Federation).

The adoption of real estate can be carried out not only by the purchaser, but also by the person, authorized by him. For example, on the basis of the agreements of financial rent (leasing) the property, acquired by the lessor, is transferred by the vendor not to the buyer, but to the leaser (the article 668 of the Civil Code of the Russian Federation).

The clause 1 of the article 223 of the Civil Code of the Russian Federation presumes the transfer of a thing as one of the basic conditions of the property right transition according to the agreement. The exceptions can be established both by the law, and agreement. The condition which is connected with the complete payment of the property is possible to be presented as an example of a contract condition of the property right transition. Statutory exception, is the acquiring of the property right on the real estate from the moment of the state registration (the clause 2 of the article 8, the article 2 of the article 233 of the Civil Code of the Russian Federation). However it does not mean, that the registration of transition of the right can be carried out before the transfer of the real estate. According to the clause 1 of the article 454 and the clause 1 of the article 459 of the Civil Code of the Russian Federation, while concluding the contract of purchase of the real estate the vendor undertakes to transfer the real property into the ownership of the other person. The transfer of the property rights without the transfer of a thing is impossible. The property right as a real right can not be transferred separately from a thing. So, just the certificate of transfer of the real estate is the legal act founding the basis for the property right.

Has not received the possession, the buyer acquires the title of the buyer, the obligatory right, which allows him to declare demands to the vendor, but not the property So, considering the claim on the eviction of the person occupying a bought flat, of the person, who has bought a flat on the tenders, the court substantially has not recognized the buyer as the owner of a flat, because the buyer had not received the flat in the possession after the selling it on tenders. The possession simply was not transferred to him (Бюллетень ВС Bulletin ВС Russian Federation, 1998, № 6, p.7-8).

According to the article 556 of the Civil Code of the Russian Federation the transfer of the real estate by the vendor and the adoption of it by the buyer are committed under the transfer certificate or other document, which shows the execution of this obligation by the parties. Thus, before signing the document about the transfer, the contract of purchase can not be considered executed, and the state registration of transition of the property right to the buyer can not be carried out.

2. If the living quarters are the subject of the contract of purchase or exchange, the document with the indication of the persons living in these living quarters is necessary. The list of the persons keeping right of use of the living quarters after its alienation, and their rights is an essential condition of the contracts of purchase and exchange of living quarters (the clause 1 of the article 558 of the Civil Code of the Russian Federation). For example, the members of the owner's family, including the infant persons, hirers, legatees (living in the premises by virtue of the testamentary gift), receivers of the rent are referred to the specified category.

The compulsion of registration at a habitation place is established by the Law of the Russian Federation dated June 25, 1993 № 5242-I " On the right of the citizens of the Russian Federation to the freedom of removing, the choice of the place of residence and habitation within the boundaries of the Russian Federation ". The persons registered in living quarters as in a place of residence (the temporary tenants) can temporarily live there according to the article 81 of the Housing code of the Russian Federation. But these persons do not keep to the rights of use on living quarters, as an above-stated category.

The document on the persons registered at a place of living, are the application and extracts from the house book, certified by the official, responsible for the registration of the persons at the place of habitation. If the individual apartment house (part of an apartment house, other living quarters) in the settlement, where there are law-enforcement bodies, is a subject of the agreement, the extract from the house book certified by a passport-visa service is represented. In the other settlements the extract from the house book should be certified by the local administration. These documents are valid during the term, specified in them.

However it is necessary to note, that according to the Law of the Russian Federation dated June 25, 1993 № 5242-I, the registration or the absence of those is not the basis for the limitation or the reason for the realization of the rights and freedom of the citizens declared by the Constitution of the Russian Federation, the laws of Russian Federation, the constitutions and the laws of republics of the Russian Federation. The right to live in the living quarters, received from the owner, appears not by virtue of the administrative registration, but on the basis of provided by the civil, heritable and housing laws juridical facts (for example, family relations) and or actions (deals). However, in case of alienation of living quarters it will be difficult to the not registered persons to prove the rights on housing to the new owner. Taking into account the features of the housing turnover in our country and the responsible relation of the citizens to the registration (“registration”), the documents of the registered persons are authentic and legal source of the information.

In the several regions or municipal formations the entities of justice or their affiliates according to the agreement with bodies of the executive authority, in addition require the representation of the application about the absence of debts on municipal payments. Such kind of demands are improper, because such debts can not serve as the legal encumbrance for the disposal of living quarters (in the agreement, for example, can be specified, that it should be extinguished by the buyer). Impermissible also the reclamation of the applications of the territorial tax inspections about the payment of the real estate tax, except for cases of the disposal of the gifted or inherited property.

3. If the owners (shareowners) of the property are the minors, less then 14 years old (minor) or incapable citizens, the parents, adopters or guardians subscribe the agreement on their behalf (the article 28, 29 of the Civil Code of the Russian Federation). Thus the written approval of bodies of guardianship (the article 37 of the Civil Code of the Russian Federation) is required. The local government institutions are the bodies of the guardianship. As a rule, the written approval they give, in the form of the decree (order) of the head of local home rule. The article 37 of the Civil Code of the Russian Federation forbids the deals between the wards and their legal representatives, except the cession of property as a gift or the gratuitous usage to the ward, the clause 1 of the article 575 of the Civil Code of the Russian Federation also forbids the donation on behalf of the minor and incapable citizens in favor of their legal representatives.

If the owners (share owners) of the property are the minors aged of from 14 till 18 years or the partly capax negotii citizens, the agreement is subscribed by them independently (the article 26, 30 of the Civil Code of the Russian Federation). But thus the written approval or consent of parents, adopters or trustees (the article 26 of the Civil Code of the Russian Federation), and also the written approval of bodies of guardianship (the article 37 of the Civil Code of the Russian Federation) is required.

If the minors, persons, incapable or limited in active capacities who are not the owners live in the living quarters, the written approval of bodies of guardianship (the article 292 of the Civil Code of the Russian Federation) is also required.

Thus, the necessity of representation of the consent of bodies of guardianship is caused by the presence of property or housing laws of the minors on the alienated premise. However in practice the entities of justice require the consent of bodies of guardianship or other documents in case of presence in family the minor living in the other place. So, there can be required the applications on a composition of family, the applications of house-operational organizations from the place of habitation of the child and even the consent of bodies of guardianship from other region.

The consents of bodies of guardianships given “ under a condition ” also cause the definite problems. For example, the consent to sale a flat with simultaneous acquiring of other housing. Thus the responsibility for observance of the rights of the minors, in essence, is shifted on the entities of justice. The consent is a certificate of an institution of local government, which can not be accomplished under a condition. Committing of the actions attracting the legal effect, under the resolutive or suspensive condition is the category of the civil right, the bargain can be accomplished under a condition, but not the commanding act. Many entities of justice voluntarily keep an eye on the observance of these conditions, but it is possible to provide “ the simultaneous purchase ” only in case of presence of alienated and acquired housing in one registering district. In case of presentation by the applicant “ of the consent under a condition ” it is possible to ask to show the agreement of acquiring of new housing registered by the entity of justice (probably, in the other subject of the Russian Federation). However it is clear, that the bodies of guardianship should require such agreement, checking the observance of the minors rights and agreeing on the deal. The observance of the infant rights at the deals with the real estate is a most serious problem, which should be solved by the all competent bodies.

4. It is possible to dispose the inherited or received as a gift property only after the payment of the appropriate tax by the owner (the article 8 of the Law of the Russian Federation dated December 12, 1991 № 2020-I " On the tax from the property transferring by way of succession or donation "). The application from the tax inspection on the payment of the estate duties or donation tax is required for the further registration of the deals with such kind of property. The application on payment of the tax before the registration of the rights on the basis of the gift contracts or the certificates on the right on the patrimony should be shown by the physical persons who live outside the Russian Federation. The giving out of such document to them without the presentation of the receipt on payment of the tax is impossible (the article 7 of the specified Law). The citizens living on the territory of the Russian Federation pay the estate duties and donation tax after the registration of the rights.

5. According to the clause 1 of the article 24 of the Law on the state registration in case of the registration of a share in the right of the joint property, the consents the other joint owners, which have been made out in a body of the state registration or notarially certified, should be applied to the application for the state registration. The specified demand derives the complications, because it does not correspond to the provisions of the Civil code on the joint property. The problems of the state registration of the common property rights were considered in № of 1 this magazine from 1999 in more detail.

6. If the object is in the common joint ownership, including the joint ownership of the marital partners, the deal on the disposal of the real estate is concluded by one of them. At the same time, the representation of the notarially certified consent of other marital partner (the article 35 of the Family code of the Russian Federation) is required. The property of the marital partners acquired by them before the marriage, inherited or gifted to one of the marital partners, acquired gratuitously, for example, housing, privatized by one marital partner, is not the joint property. The legal regime of the property, jointly acquired by the marital partners, can be changed by the marriage contract. The written approval of the joint owners who are not the marital partners, on the deal with the compensation formally it is not required (the article 253 of the Civil Code of the Russian Federation), but, taking into account a possibility of the appearing of the joint property on the basis of the agreements of gratuitous transfer (privatization) of housing, it is clear that such document can be necessary. The donation of the property, which is in the joint property, can be committed only under the consent of all joint owners (the clause 2 of the article 576 of the Civil Code of the Russian Federation).

The notarially certified consent of the marital partner is also required in case of the acquiring of the living quarters on the basis of the contracts of purchase or exchanges, because the clause 3 of the article 35 of the Family code of the Russian Federation establishes the necessity of the consent on the committing of the deal requiring the registration in the statutory order. At the same time, if both marital partners sign the agreement as the joint owners on the party of the vendor, or on the party of the buyer, the notarial consent to the bargain it is not required.

7. If the agreement of the rent is the right establishing document of the legal owner of the real estate, including the agreements on the conditions of perpetual maintenance with dependence, the object is charged with the rights of the rent receiver: by the obligation on disbursement of the rent (the article 586 of the Civil Code of the Russian Federation) and by the mortgage by virtue of the law, ensuring these obligations (the article 587 of the Civil Code of the Russian Federation). The records about encumbrances should be brought into the Uniform State register at a registration of the right of the rent payer. These records can be extinguished on the basis of the agreement (judgement) on dissolution of the agreement of the rent or on the basis of the death certificate of the rent receiver. But while the specified records are not extinguished, the disposal of the property is admitted only with the consent of the rent receiver (the article 604 of the Civil Code of the Russian Federation). The consent on the alienation does not save the real estate from the encumbrance, the rights of the new owner also will be charged with the obligation of perpetual maintenance with dependence (the article 586 of the Civil Code of the Russian Federation). Therefore in the agreement of disposal should be specified on the conservation of encumbrances, otherwise the refusal in registration is possible, according to the clause 1 of the article 20 of the Law on the state registration of the rights, on the basis of statement that the person, which has the rights limited by the certain conditions, has constituted the document without the indication of these conditions.

8. If the object is mortgaged, the consent on the disposal of the object of the pledgee (the article 346 of the Civil Code of the Russian Federation) is required, if other rules are not stipulated by the law or agreement on the hypothecation. At a transition of the right the mortgage is kept (the article 353 of the Civil Code of the Russian Federation), therefore the encumbrance of the property by the hypothecation in order to prevent the refusal in the registration should be specified in the agreement of disposal. This rule is applied also in case of appearing of the hypothecation by virtue of the law: at a sale and purchase on credit with the installment plan of payment (if other rules are not established by the contract of purchase, the clause 5 of the article 488 of the Civil Code of the Russian Federation), at acquiring the housing on the money got from the credit of bank (the clause 1 of the article 77 of the Law on mortgage credit). The mortgage credit by virtue of the law at a transfer of the real estate under the disbursement of the rent is considered above.

9. For acquiring of the objects which are situated on the territory of the closed administrative - territorial formation (CATF), the Law of the Russian Federation dated July 14, 1992 № 3297-I " About the closed administrative - territorial formation " (with the changes dated November 28, 1996, July 31, 1998) establishes the definite limitations. The citizens privatized the living quarters, where they were living, and owners of the apartment houses found on the territory of CATF, have the right to commit the deals only with the citizens which constantly live or work on the territory of CATF, or the legal persons disposed and registered on this territory, and also with the citizens of the Russian Federation which has received the admittance for the permanent residence on the territory of CATF. Therefore if the citizen who has not been registered at the habitation on the territory of CATF, acquires a flat, the confirmation, that he works constantly on this territory or has received the admittance for residence is required.

10. If the object of the real estate is situated on the land lot, rented by the vendor, the rent contract can stipulate the necessity of the land lot lessor’s consent on the alienation of the real estate, which is found on it (the clause 3 of the article 552 of the Civil Code of the Russian Federation).

11. At a sale of the premises in the condominium the vendor, according to the article 13 of the federal Act dated June 15 1996 № 72 Federal Law “On the partnerships of the housing owners ”, should inform the buyer about the duties connected with the expenses on the holding of the premises and the common property in the condominium. Though, the specified terms are not the essential condition of the contract of purchase of the premise in the condominium, and in case of their non-presentation the vendor carries the responsibility for the possible losses of the buyer, the entities of justice have the right to check the execution by the vendor of his duties on the notification of the buyer. If the specified terms are absent in the contract of purchase, it is recommended to offer the buyer to present to the entity of justice an application that the vendor has informed him about the above-stated data.

12. According to the article 1 of the acting edition of the Law of the Russian Federation dated October 11 1991 № 1738 “ On the payment for ground ” the standard price of ground is established for the purchase and redemption of the land lots in cases stipulated by the land Code of RSFSR, and also for mortgaging of the ground. Therefore, the document given by the committee of the land resources and a land-use system is necessary for the registration of the rights while transferring the grounds to a private ownership and for the registration of the hypothecation. For the state registration of transition of the rights on the basis of the contracts of purchase of the land lots, which are in a private ownership of the physical and legal persons, this document is not required, as the price of an alienable lot is established by the agreement of the parties.

For deals with the participation of the legal entities the additional documents can be added to the given list in the following cases.

13. The disposal of the property of the organization which does not have the property rights (individual private (family) organizations, the organizations created by the societies of the consumers' cooperation, the firms of public organizations etc.), according to the clause 6 of the Federal Law “ About the putting in life of a part one of the Civil Code of the Russian Federation ” and the clause 1 of the article 297 of the Civil Code of the Russian Federation is operated only with the consent of the founder of organization, which is the owner of the property. The written approval of the owner or his plenipotentiary body is necessary for the registration of the alienation of the property (with the indication of object, price and buyer). The committing of the deal by the owner is also possible.

14. The deals of the state and municipal organizations have the following features. The consent of the appropriate committee on management of the state or municipal property as a plenipotentiary of the owner (the Russian Federation, the subject of the Russian Federation, the municipal formation (the article 295 of the Civil Code of the Russian Federation)) is required for the disposal of real estate. At an alienation of the property by the organizations of a railway transportation the consent of the Ministry of the State property of the Russian Federation or its territorial bodies is also necessary. The consent of the Ministry of the Railways of the Russian Federation can be given only for the deals without the change of the federal ownership (the clause 2 of the article 4 of the federal Act “ On a federal railway transportation ”).

According to the special legal capacity (the clause 1 of the article 49 of the Civil Code of the Russian Federation), the operations of organization with the property, assigned to it, should be caused by goals of the authorized activity and special-purpose designation of the property. If the activity of the organization leads to the impossibility of using the property, participating in the production, according to its special-purpose designation, such deals are considered invalid on the bases of the article 168 of the Civil Code of the Russian Federation, irrespective of were they accomplished with the consent of the owner (or the body, authorized by it) or independently by the organization the clause 9 of the Decree of the plenum SAC Russian Federation dated February 25 1998г. № 8). The deal accomplished by the organization outside of its special legal capacity, is void, because it is not appropriate to demands of the law (the article 49 of the Civil Code of the Russian Federation). But using of such criteria, as non-conformity of the deal to the authorized purposes, in practice of the establishments of justice is inconvenient. Therefore for registration of the deals and transition of the rights on the industrial property of the state and municipal organizations, there are the bases to require not only the consent of the property management committee, but also its (as the authorized body of the owner) confirmation of the compliance of the deal to the authorized purposes of the organization. In connection to the sale of the living quarters by organizations, it is necessary to point that such deals sometimes contradict to the authorized goals of organizations. Besides, according to the article 19 of the Law of the Russian Federation dated December 24 1992 “ On the bases of federal housing policy ” the shares of state and municipal housing fund, including the real estate of the special departments, are defined by the Government of the Russian Federation and the bodies of the executive authority of the subjects of the Russian Federation. However if the organization is created just with the purpose of construction and sale of houses, garages and other real estate which is established by the articles of association, such bargains correspond to special legal capacity of the enterprise, and consent of the owner is not required, as it is already expressed in the charter, affirmed by the founder.

In case of acquiring of the property by the state or municipal organization, it has not the property right, but the right of economic conducting over this property (the clause 2 of the article 299 of the Civil Code of the Russian Federation).

15. The decisions on conclusion of deals by joint-stock companies, in which there is an interest, and also large bargains are accepted according to the federal acts dated November 24 1995 № 208 of the Federal Law “ On the joint-stock companies ”, dated July 19 1998 № 115 of the Federal Law “ On the features of legal status of joint-stock companies of the workers (national enterprises) ”. The method of adoption of the decision about the bargain of joint-stock company, created as the result of the reorganization of the state (municipal) organization, is regulated by the legislation on a privatization before the termination of a privatization.

The decision on conclusion of the deal, where there is an interest, is accepted by the majority vote of general meeting of the shareholders, if the sum of payment under the deal and market cost of the property being a subject of the bargain, which is defined according to the Law on joint-stock companies, exceeds 2 % of the assets of the society.

The decision on conclusion of the large deal, the subject of which is the property priced from 25 up to 50 % of the book value of assets of the society on the date of adoption of a decision on committing of the deal, is accepted unanimously by the board of directors (supervisory council of the society). The decision on the large deal, the subject of which is the property priced from 15 to 30 % of the book value of asset of the national enterprise, is accepted unanimously by the supervisory council of the society.

The decision on conclusion of the large deal, subject of which is the property priced more than 50 % of the book value of assets of the society or more than 30 % of the book value of asset of the national enterprise on the date of adoption of a decision on the committing of deal, is accepted by the general meeting of shareholders by means of the majority in 3/4 votes.

If the cost of the deal or of the alienated property of the joint-stock company created by means of a privatization of the state (municipal) enterprise, exceeds 10 % of assets of the society, the decision is accepted by general meeting of the shareholders (the clause 6.3. Of the typical charter of joint-stock company of an open type affirmed by the Decree of the President of the Russian Federation dated July 1 1992, № 721).

16. If more than 25 % of the shares of the privatized organization is in the property of the state (municipal) formation, the consent of the appropriate committee on management of the property is required while committing the deals with the real estate by such joint-stock company (the clause 5.13.3 of the Decree of the President of the Russian Federation dated December 24, 1993 “ On the state program of a privatization of the state and municipal enterprises in the Russian Federation ”). For checking of this demand the joint-stock companies created by means of reorganization of state (municipal) organizations, present the extract from the shareholder register to a registering body.

The shareholders’ register is conducted by the register holder (by joint-stock company or specialized organization). The extract consists of a complete official name of the stock issuing organization (joint-stock company), name of the body which has carried out the registration, number and date of registration, legal address; the complete official name and legal address register holder; the date, when the extract from the register is constituted; amount and type of the shares found on the account of the holder (the state or municipal formation). Two responsible persons of a registration department subscribe according to the decision of board of the society. After that the extracts from the register are fastened by the seal.

17. The decisions on conclusion of the deals by the societies with the limited authority, where there is an interest, and also large deals are accepted according to the federal Act dated February, 8, 1998, № 14 of the Federal Law “On the societies with limited responsibility”.

If it is stipulated by the charter of the society, the board of directors (supervisory council) accepts the decision on committing of the deal, where there is an interest, if the sum of payment on the deal or the cost of the property being a subject of the deal does not exceed 2 % of cost of assets of the society.

If there is an interest in committing of the deal and the sum of payment under the deal or the cost of property being a subject of the deal, exceeds 2 % of the total cost of the societies’ assets, the decision is accepted by general meeting of the participants of the society by means of the majority vote from the number of participants of the society which are not interested in the deal.

If it is stipulated by the charter of the society, the board of directors accepts the decision on committing the deal connected with the acquiring or alienation of the property, priced from 25 up to 50 % of cost of assets of the society.

The decision on committing the deal connected with the acquiring or alienation of the property, priced more than 50 % of cost of assets of the society, is accepted by general meeting of the participants of the society.

18. The charter of the consumer society can establish the special cost of the property. All the deals with the property, the cost of which exceeds this special cost, attract the necessity of adoption of a decision on committing of the deal by the general meeting of the shareholders (the article 16 of the Law on the consumers' cooperation). The decision on committing of the deals of the smaller cost accepts the council of the consumer society, which also issues the letters of attorney on the conclusion of the deals on behalf of the society (the clause 4 of the 19 of the Law on the consumers' cooperation).

19. The interest in committing of the deal by noncommercial organization attracts the conflict of interests of the interested persons and organization (the article 27 of the federal Act dated January 12 1996, № 7 of the Federal Law “ On noncommercial organizations ”). A body of management of noncommercial organization or supervisory authority over its activity should approve this deal.

20. The deals with the industrial real estate in certain conditions should be committed with the consent of territorial management of the State committee on antimonopoly policy (the article 18 of the Law of RSFSR “ On a competition and limitation of monopolist activity on the commodity markets ”). The criteria of application of the antimonopoly legislation is the exceeding of the book value of the property which is a subject of the deal, of 10 percents of the book value of the basic industrial remedies and incorporeal assets of organization, alienating the property, at one of the following conditions:

The excess of the general book value of assets of the property alienating and acquiring organization of 100 thousand minimal wage;
The bringing in of one of them in the Register of the managing subjects in case of having a share of more then 35 percents on the market of the definite product;
The acquiring of the property by group of the persons controlling the activity of organization, alienating the property.

The Government of the Russian Federation defines the order of formation of the Register of the managing subjects having a share of more then 35 percents on the market of the definite product.

Thus, at an alienation of buildings and structures of industrial purpose by the legal persons, the certificate from the vendor on the book value of assets and book value of the property, and also the certificate from the buyer on the book value of assets certified by the chiefs and the chief accountants of organizations, or the copies of accounting balances of organizations with a mark of tax inspection about the adoption of balance are necessary. Depending on a ratio of cost of the property, the prices of the deal and the costs of assets of organization the decisions of the authorized bodies of the legal person and the consent of an antimonopoly body are presented.

Conclusion

Features of the legal regulation of the deals with real estate are defined not only by the civil, but also by housing, corporate, tax, heritable legislation. The additional documents are necessary for the state registration in statutory cases, as a rule, for protection of the rights and the legal interests of the third persons who are not participating in the deal. The check-up of the deals’ with the real estate legality is operated by the entities of justice irrespective of the form of the deal (simple written or notarial), and also of the fact whether the deal is a subject of the state registration or its execution is only the basis for registration of the right transition. According to the article 20 of the Law on the state registration, the entities of justice should refuse to register the deals with real estate which are not appropriate to demands of the law or other legal acts, irrespective of the fact whether the non-conformity to the law makes the deal void, or the law admits its voidability.