Sale of an apartment by assignment of the right of claim. Transfer of an apartment in a new building

What is an assignment agreement? This is the transfer of rights to real estate for some consideration. The point of using an assignment for an apartment buyer is significant savings, since prices at the start of construction are lower compared to purchasing a ready-made property.

For the seller, this is an opportunity to stay in the black without waiting for the completion of construction and delivery of the house. An assignment may be safer than a regular share participation, since such an agreement is concluded at the last stages of construction, when the developer has already proven himself and can guarantee the delivery of the house on time.

How to buy an apartment under construction under an assignment agreement? This real estate sector has two options for transferring rights:

1. According to the concluded purchase and sale agreement. In this option, the right to demand the signing of the basic contract for the sale and purchase of property is ceded, but not the right to demand the transfer of real estate itself. This is due to the legal basis of such an agreement.
2. By prior arrangement, the parties do not sell the apartment, but only agree to its possible purchase in the future.

Reference! The assignment of rights can be performed only from the moment of concluding the preliminary agreement, but before signing the main one.

The preliminary agreement does not require state registration. Money for a completed purchase is given only under the main agreement. Also, no additional actions are required.

Equity Participation Agreement (PAA)

In this version, settlements between the developer and the assignor are made BEFORE the assignment of their rights to the assignee. Otherwise, the unpaid debts of the assignor are transferred to the assignee upon conclusion of the assignment.

The procedure for conducting a transaction at the construction stage

The rights to own real estate under an assignment agreement are transferred to the new owner to the extent that they belonged to the seller.

Because the contract must specify in detail under what agreement the assignment is carried out, as well as what papers are transferred to the new owner.

The assignment is considered completed after the final payment of the cost of the share participation agreement or simultaneously with the transfer of the debt to the new owner.
The assignment is carried out with the participation of the developer. He agrees to carry out the transaction.

After signing the contract by both parties, the buyer remains with the following documents:

• the agreement under which the procedure takes place;
• documents confirming the calculations;
• consent from the developer to the procedure;
• act of transfer of documents;
• assignment agreement.

Attention! According to experts, the safest process is the process of concluding an assignment agreement under an agreement of shared participation in construction. Thus, the buyer receives additional protection under 214-FZ.

The disadvantage of this solution is the circumstance in which, in the event of termination of the contract, the final buyer will receive only the amount specified in the contract, and not actually paid.

In this video, a real estate specialist explains, using an example, what is the assignment of rights to an apartment in a building under construction:

Advantages and disadvantages

1. The assignment of rights will be a more reliable option than buying an apartment at the excavation stage, and more economical than buying real estate in an already rented house.
2. For those who have entered into a share participation agreement, assignment will be the only way not to lose the money invested if, in the event of special circumstances, it is necessary to return it. Termination of the DDU may result in penalties from the developer. The assignment will also provide an opportunity to make a profit.

Risks and problems

How to safely buy housing under construction by transfer? In a situation with the acquisition of rights, risks may be associated with the bad faith of the assignor (seller) and the poor state of affairs of the developer. The most common risks include the following:

• the developer is on the verge of bankruptcy, but does not inform the buyer about this, which may lead to problems in the possibility of obtaining housing;
• the chance of getting an apartment in a building whose condition does not suit the stated plan due to the incompetence of the developer;
• the likelihood of purchasing real estate under long-term construction, the delivery date of which is constantly changing;
• the risk of ending up in a fraudulent scheme carried out through assignment under a preliminary agreement with several parties at once;
• possible commission from the developer for approving the transaction.

What clauses of the contract should you pay special attention to:

1. The type of agreement under which the assignment of rights occurs.
2. The position of the developer in relation to the assignment is the absence of prohibitions, the presence of consent.
3. The scope of obligations and rights transferred to the assignee.
4. Documents attached to the contract.

Taxes

Individual investors enter into an assignment agreement to avoid paying personal income tax. According to the legislation of the Russian Federation, when selling an apartment that the seller has owned for less than three years, a tax in the amount of 13% of the profit received as a result of the transaction must be paid.

In this video, the head of the assignment department talks about paying taxes when reselling an apartment by assignment:

Problems at the housing delivery stage

After the house is delivered, problems may also arise. However, the type of contract concluded does not matter. Obtaining a certificate of ownership is not so easy. Although the house may be ready and accepted by the commission, it is not registered as a property.

This is due to the fact that such registration includes a large number of stages in which not only developers and shareholders participate, but also investors and suppliers who have invested their funds. Conflicts may arise between them over debts and other things, which will be resolved in court. Until they are settled, there will be no registration.

Considerable risks are caused by double sales, both random and special. This may mean selling the apartment to several people at once. This happens due to the conclusion of not one share agreement, but various investment agreements, assignments and preliminary sales.

Reference! When concluding an assignment agreement or a preliminary purchase agreement, it is required that it be based on data from government agencies, since only data is used to keep records in Rosreestr. In other situations without taking into account, there is a possibility of buying an apartment with the owners.

How to prepare and protect yourself?

It should be borne in mind that after concluding a contract and making a settlement, the seller cannot be held liable for the sale of distressed real estate. The construction of the house is carried out by the developer, who should be contacted in case of delays in poor execution of the project and other problems identified after delivery.

Choosing a responsible development company is the most important step when purchasing a quality property. To find a reliable developer, you need the following:

1. Study the available reviews on the company’s completed projects.
2. Visit buildings constructed by the developer to assess their condition.
3. Consult with a realtor who worked with the developer, or with an acquaintance who purchased an apartment from the company.
4. Visit the site where the house is being built to assess the infrastructure and, if possible, familiarize yourself with the layout of the house and inspect the future apartment.

Then read the documents qualifying the developer and the building project:

Separately review the project according to which the house is being built, which should include the following:

• permission to carry out construction work;
• the purpose of the project;
• construction stages;
• implementation deadlines;
• the deadline by which the delivery of the building is completed.

If all of the above suits the buyer, you can proceed with the assignment. Or make a deal if there is already a seller. Before proceeding to sign the transaction, the buyer must do the following:

1. Obtain consent from your spouse if there is a valid marriage. This rule does not apply if there is a prenuptial agreement guaranteeing separate ownership and purchase of property, or if both spouses are assignees under the agreement.
2. In the case of a purchase on a mortgage basis, it is required to obtain a loan agreement and an offer invoice.

After completing all the steps, you can proceed to signing the papers.

We describe in detail what risks may arise and how to protect yourself when buying an apartment in a new building by any means, not only through an assignment of rights agreement, and you will learn what questions to ask the seller and what documents to check.

Possibility of acquisition and features

For a mortgage

It is difficult to find a bank that will issue a mortgage secured by finished real estate. Banks are reluctant to enter into such transactions due to the high degree of risk, since the developer can always violate the established deadlines for commissioning the housing.

At the same time, the bank has alternative programs that generate more income and are in great demand.

Another way to find the right bank is to cooperate with a legal entity selling real estate. Such companies are considered construction holdings, which act as co-investors and provide transaction support services. The most difficult option is to contact various banks with a question about the possibility of obtaining a loan.

Use of maternity capital when purchasing under an assignment agreement

How to buy an apartment under construction under an assignment agreement using funds from maternity capital? This possibility is already indicated in the terms of use of the funds received. Yes, received maternity capital can be used to pay for purchased residential premises, in payment of the cost of the shared construction agreement and payment for the construction of their own residential building.

Due to these points, you can understand that the use of maternity capital when purchasing an apartment through assignment is possible.

These funds can be used no earlier than the child for whom the funds were received turns three years old.

Can I take advantage of government programs?

There are many government programs that stimulate the construction of primary housing. The programs that allow you to use the assignment when buying an apartment in a new building include a mortgage with state support, assistance programs for young and large families, and much more. As a result, there are more and more apartments that can be purchased at the start of construction.

Retroactive conclusion process

This will not be possible, since all deadlines have passed. Such an agreement cannot be concluded “retrospectively”, since it is subject to mandatory state registration.

A way out can be found by reaching an agreement with the developer, as well as by changing the date of the acceptance certificate within a “reasonable” limit.

However, when assigning with a preliminary purchase and sale agreement, the date of the main agreement changes, if he has not been registered with a government organization.

Detailed step-by-step instructions for purchasing an apartment on the assignment of rights in a building under construction

Reference! The transfer of funds often occurs through a safe deposit box. This option is considered the safest.

Sometimes it is allowed to transfer money at the time of the transaction, so as not to wait for the re-registration of the contract. However, there is a risk that the agreement will not be registered. But it’s better, of course, after registration.

Required documents

The assignor and assignee must bring a package of documents to complete registration in relation to the transaction of assignment of ownership rights to real estate in a new building.

1. Passports of both parties. With the participation of trusted representatives, their passports and a notarized power of attorney are required.
2. Consent from the spouse to the procedure.
3. The main agreement is a document concluded between the assignor and the developer. Can be issued to preschool educational institutions.
4. Preliminary agreement.
5. Investment or co-investment agreements.
6. A certificate confirming that the seller has no debt towards the developer. Or an agreement under which the buyer assumes the debt.
7. Consent in writing, by which the developer agrees to carry out the transfer of rights.
8. Consent from the bank to sell the apartment if it was pledged.
9. Loan agreement and mortgage if the buyer uses a mortgage or other credit obligation in the purchase.

In what cases can a contract be terminated?

The transaction is illegal and invalid if certain conditions are not met:

Carrying out such a transaction can be profitable if the buyer can afford to spend money on the purchase and wait some time before receiving ownership of the apartment.

This is possible if you already have some real estate, and buying a new one is associated with the desire to make some profit. However, if this is a matter of extreme importance, and the last funds will be spent, then the transaction is extremely undesirable due to the large number of risks.

Assignment is a fairly popular type of transaction when buying an apartment in a new building.

We suggest you figure out how to carry it out with the greatest benefit and minimal risk for the buyer.

The procedure for conducting a transaction differs depending on the agreement on the basis of which the developer sells apartments: under an equity participation agreement or by joining a housing construction cooperative. This article will discuss the transfer of rights under an equity participation agreement

What is the essence of the assignment?

The construction of a multi-storey building takes several years, and the price per square meter gradually increases as the construction of the building approaches the completion date. An apartment at the foundation pit stage is cheaper than at subsequent stages - it is at this moment that investors prefer to buy an apartment with a view to selling it later. When an apartment is resold before the house is put into operation, a special transaction is concluded - assignment of rights of claim (assignment agreement).

The main thing that the buyer must understand is that he is not purchasing the apartment itself, but the right to claim it. That is, he receives not only the rights to receive an apartment, but also the risks that he bears when investing in an object under construction, as well as obligations to fulfill the share participation agreement.

Transfer bonuses

Often, this is the only opportunity to live in a house you like if all the apartments are sold out or their prices have increased significantly. Wanting to remain competitive, the shareholder (investor) offers an apartment noticeably cheaper than the developer sells the remaining options. In addition, you won’t have to wait long for a housewarming party – rights are usually assigned in almost completed houses.

Bargaining tricks or how to get the maximum benefit

To maximize profits, investors try to sell the apartment by assignment closer to the time the property is put into operation, and it is necessary to have time to sell them before signing the transfer and acceptance certificate (acceptance of the apartment). After signing this act and until the property is registered, an average of 3-5 months pass, and during this period it is impossible to re-register the apartment. Accordingly, in buildings with a large number of apartments, closer to the time the object is put into operation, you can safely bargain with sellers and save significantly on the purchase.

The situation is similar with contractor companies that received housing from the developer in exchange for services rendered or supplies of materials. Such companies usually offer apartments at lower prices because they need working capital.

Where might pitfalls arise?

Firstly, there is a risk of buying problematic housing, the delivery date of which will be delayed for an unknown period, or it will not be completed at all. Perhaps the first shareholder (assignor) decided to assign the apartment because he found some technical problems and violations. Therefore, the main task of the buyer (assignee) is to find out the reasons for the assignment, thoroughly check the information about the developer and carefully study the share participation agreement itself. Also, a potential equity holder must be prepared for the following financial expenses:

• the seller can transfer “compensation” to the buyer - costs for re-issuing documents for the assignment (about 30-50 thousand rubles)
• if housing purchased with a mortgage is transferred, the bank may require payment of a commission for removing the encumbrance (1-2% of the amount of the outstanding debt).
• Notarial documents required for the transaction will cost approximately 3 thousand rubles.

Step-by-step instructions for completing a transaction for the buyer

After you have decided on your future apartment and agreed with the seller, you must:

Analyze and prepare documents

1. We study the “basic” equity participation agreement, paying special attention to the rights and obligations of the shareholder. At this stage, it will be possible to agree with the seller on the division of financial obligations (registration costs). If difficulties or misunderstandings arise, you can seek the help of a lawyer.
2. Request reconciliation acts (also known as mutual settlement acts) confirming full or partial payment by the current shareholder for housing under construction.
3. Negotiate the notarized consent of the spouses or a certificate of their absence.

Sign the contract

1. The signing of the assignment agreement usually takes place at the developer’s office, which also endorses the agreement on its part (if such a requirement is specified in the agreement).
   Important: if the property was purchased with a mortgage, you will need to obtain the bank’s consent to this transaction and transfer the debt to the buyer. In this case, you need to prepare for the bank a complete package of documents, which is usually required for obtaining a loan. If you are ready to pay the full price of the apartment, the bank may require you to pay a commission for removing the encumbrance.
2. Register an additional agreement to the agreement on the transfer of rights and obligations with the state registration service (Rosreestr). This service is usually provided by the developer. Legally, only after registration the assignment comes into force.

Transfer of funds to the seller

The most popular and safest payment method is through a safe deposit box. Moreover, the seller takes the money only after receiving registered documents from Rosreestr - that is, when the ownership rights have already been officially transferred to you.

Sometimes the seller may offer a discount for transferring money at the time of the transaction, so as not to wait for the re-registration of the contract, which usually takes from several weeks to several months. However, in this case, there is a risk that the agreement will not be registered for certain reasons: incorrect payment of the state duty, an error in the agreement, notarial documents, etc. This risk is small, but whether the game is worth the candle is up to you to decide.

After the transaction, be sure to receive the original assignment agreement and the share participation agreement with the seal of Rosreestr. Also, be sure to collect documents confirming payment for the apartment from the first shareholder.

So, let's summarize:

Assignment is a real opportunity to save money if you want to buy an apartment in new buildings
1. It is necessary to carefully study the documents and check the terms of the transaction
2. It is important to find out from the developer and the bank (if the apartment has a mortgage) about financial costs and agree on their distribution with the seller.

Package of documents required by the buyer for assignment

Imagine: you want to save money on purchase housing and decided to purchase it in an unfinished house - cheaper than on the primary and secondary markets. But all real estate has already been sold out under the DDU agreement. You can purchase it under a rights assignment agreement. IN article let's tell you what it isassignment of an apartment in a new buildinghow to apply for it and how much you will have to pay.

What is assignment

Assignment isa deal in which right real estate claims are transferred from the seller to the buyer. The transaction is called an assignment, the seller is the assignor, and buyer - assignee. Everything related to assignment is regulatedFederal Law No. 214“On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation,” as well as certain paragraphs of the Civil Code of the Russian Federation - for example, Article 382.

An important point: according to the agreement, there is not a transfer of real estate, but a transfer of the rights to claim it, because the apartments do not yet exist according to the documents. The buyer can claim title to the property after developer will put the house into operation, completing all the necessary documents.

Under what conditions is a deal possible?Sale of an apartment by assignmenttakes place only in houses under construction. According to the law, a participant in shared construction can assign the rights of claim under the contract only after paying the transaction price or simultaneously with the transfer of the debt to a new participant in the joint venture.

What objects can it be applied to?saleby assignment?Most commonassignment of property rights under DDUwith assignment of responsibilities, but there is also assignment of shares in housing cooperatives. The assignment under an agreement of shared participation in construction is more regulated by law, therefore it is safer for the seller and the buyer.

What is an agreement for the assignment of rights to an apartment?An agreement on the assignment of rights is called an assignment. It is concluded in addition to the main DDU or document concluded upon joining a housing construction cooperative. According to the agreement, in the main transaction the participant in the DS changes - the developer is obliged to transfer the property not to the one with whom he first entered into the agreement, but to the one who acquired the right requirementsfor real estate.

What are the requirements for the transaction?The assignment, as well as the conclusion of a DDU agreement, must be registered with Rosreestr. Without registration, you will have no legal rights to the property. In addition, the developer must allow the assignment of rights, otherwise the deal will not take place.

How does an assignment differ from a purchase and sale?Under a purchase and sale agreement, the buyer receives ready-made real estate and immediately formalizes ownership of it, and the seller receives cash for the housing. Under an assignment agreement, the buyer receives only claims to real estate that does not yet exist, and sometimes an obligation to pay the balance of the fee to the developer. That is, a cession is a guarantee that registration of ownership will take place in the future.

Pros and cons of assigning the right to claim real estate

Any way There are pros and cons to purchasing, and assignment is no exception. Let's look at the benefits of assignment for the seller and the buyer.

How to choose the right property to purchase via transfer

To minimize risks When buying an unfinished home, ask the seller for the original DDU. Check whether it has the seals and signatures of the developer, and a registration mark with Rosreestr. If all this is missing, you have a scammer in front of you.

Also check the developer's reputation. For this:

🔎 Check if the developer is in bankruptcy. To do this, go toto the website of the Unified Federal Register of Bankruptcy Information and enter the company name. If she is bankrupt, refuse the purchase. Otherwise, you will have to spend a lot of effort, money, and nerves to get at least some compensation.

🔎 See if criminal cases have been filed against the developer company. This can be donein the electronic file cabinet of the website of the Federal Arbitration Courts . Please note that the larger the company, the more lawsuits it will face. Look at the essence - why people sue, what they demand, what decisions were made in previously closed cases.

🔎 Look at the project declaration. Developers place it in the public domain on the official website or send it upon first request. Review delivery dates and housing characteristics. If the information corresponds to the real state of affairs, the developer can be trusted.

🔎 Read reviews about the company. Register on the forums, chat with those who have already bought housing under a DDU or an assignment agreement. If there are more negative responses, it is better to refuse the purchase. If there are few or none, the company can be trusted: most likely, it works efficiently.

How to transfer an apartment in a building under construction- instructions for drawing up a contract

Buying an apartment by assignment of rightsrequires collecting a package of documents, drawing up an agreement and registering it with Rosreestr. We will explain what needs to be done step by step.

Step 1: collect a package of documents

To register the assignment, both parties will need:

📂 written consent to the transaction or personal presence of the spouses;

📂 the share participation agreement itself;

📂 permission to assign rights from the developer;

📂 certificate of repayment of debt to the developer;

📂 permission from the bank to assign rights.

The written consent of the seller’s spouse is required if a joint-share agreement was issued during the marriage and payment was made for the shared construction project. In this case, the property is jointly owned, and the spouse must provide written, notarized consent to the sale. If the buyer is also married, he also needs to obtain written consent from the spouse for the transaction.

Cession makes changes to the agreement: in place of the old shareholder - the seller - he becomes new - buyer.

Permission to assign rights from the developer is necessary so that he cannot recognize the transaction as illegal. If there is a requirement to obtain the developer’s consent to assign rights in the DDU, be sure to notify the company of your intention to carry out the transaction and obtain written consent. If there is no such requirement in the main agreement, it is sufficient to send the developer a written notice of the transaction. Some DDUs stipulate that the developer charges a fee for issuing permission to assign rights.

A certificate of repayment of debt to the developer is issued by the development company after full payment of the contract price. If the debt is not repaid, a representative of the developer takes part in the transaction, and the obligation to pay money passes to the assignee - the buyer of the property.

Permission from the bank to conduct a transaction is required if the seller is the primary buyer of the property- acquiredit for credit funds. In this case, the right of claim is pledged. If the bank's consent is not obtained, the transaction will be considered illegal. Important: some banks issue permission only if the buyer has already paid the entire amount of the debt.

Step 2: sign an agreement

Put the assignment in writing. It must contain the following information:

📝 Date and city of conclusion.

📝 Addresses and passport details of both parties to the transaction - the seller and the buyer.

📝 Data about the concluded DDU agreement - its serial number, date of conclusion, basic information about the parties.

📝 Location address object real estate, the rights to which are subject to assignment, and technical characteristics of future housing.

📝 Valuation of the right of claim - the cost of assignment, that is, the amount that the buyer pays to the seller.

📝 Payment procedure and details - most often payment occurs after state registration; cash, safe deposit box or letter of credit are used to transfer money.

📝 List of documents that are subject to transmission from the seller to the buyer - for example, the main DDU and primary payment documents that confirm payment to the developer from the first shareholder, as well as the timing of the transfer of papers.

📝 Rights and obligations of both parties under the contract.

📝 Signatures of the parties with transcript.

There is one nuance in drawing up a contract. If you have received the developer's written consent to assign rights, you can stipulate in the assignment his responsibility to the shareholder. That is, simply transfer the developer’s responsibilities from the equity participation agreement to the assignment. In this case, it will be possible to demand a penalty for failure to meet construction deadlines and other delays in the delivery of the house.

Important: it is advisable to draw up the assignment in several copies, depending on the number of participants in the transaction. One remains with the seller, the second with the buyer, the third will be stored in Rosreestr. Additional copies may be requested by banks and developers.

Step 3: register the agreement with Rosreestr

Visit the Rosreestr branch in your region or contact the nearest MFC. Provide the employee:

📌 original agreement on shared participation in construction;

📌 agreement on the assignment of the right to claim under the DDU;

📌 receipt of payment of state duty;

📌 passports of both parties to the transaction - the seller and future owner of the right of claim;

📌 notarized consent of the spouse of the seller and buyer to conduct the transaction;

📌 permission to assign rights from the developer company;

📌 a certificate of no debt to the developer or an obligation to pay the balance of the amount;

📌 permission from the bank for the transaction if the seller has concluded a DDU using credit funds.

Provide originals of all documents. If it is not possible to provide the original, an employee of Rosreestr or MFC can accept a notarized copy.

The state fee for registering the assignment of the right to claim real estate is paid in advance. Its size is 350 ₽ for individuals and legal persons, the duty is always paid by the buyer.

After the employee accepts the documents, he will issue a receipt with a list of accepted papers and the deadline for making changes to the DDU. Usually it is 10 days. On the appointed date, a Rosreestr employee will return the accepted documents and notify you of changes to the share participation agreement.

How to get an apartment under an agreement on the assignment of rights of claim

After registering the assignment of rights agreement, wait for the developer to put the house into operation. He will assign him a postal address, issue a cadastral passport for the object itself and each apartment, draw up a protocol on the distribution of apartments and perform a number of other actions. He will give you a certified copy of the commissioning permit and sign the apartment acceptance certificate.

Contact Rosreestr or MFC to register ownership. Provide the employee:

✔ passport of a citizen of the Russian Federation;

✔ assignment and agreement of shared participation in construction;

✔ a copy of the commissioning permit;

✔ act of acceptance and transfer of the apartment;

✔ receipt of payment of state duty.

The fee is 2,000 rubles for individuals, 22,000 rubles for legal entities.

An employee of Rosreestr or MFC will accept the documents and issue a receipt with a list of papers and the date when they need to be picked up. The period for registering property rights is 10 working days. When you come to Rosreestr, you will receive back the original documents and an extract from the Unified State Register of Real Estate with confirmation of ownership.

How much does it cost to transfer an apartment in a new building?

The costs of registering the assignment are borne by the buyer. He pays part of the state fee in the amount of 350 rubles. The amount that the assignor pays to the assignor depends only on the requirements of the buyer. how to sell an apartment with a mortgage by assignment.

If the rights tonew buildingin minors

If the child care agreement includes minors, when registering the assignment, it is imperative to obtain permission for the transaction from the guardianship authorities. The legal representatives of the minor are the parents or guardians - they will sign the cession.

If the child care home was issued with maternity capital

If you are registering an assignment of rights, and the seller used funds from maternity capital to conclude the DDU, the procedure becomes more complicated. The assignment must state that the children will receive their shares in ownafter the end of the construction period.

Assignment or assignment of the right of claim is one of the most used and widespread methods of purchasing housing in new buildings in the modern primary real estate market.

Before delivery of a built house, at the final stage of housing construction, as a rule, all liquid apartments are sold out. That is why assignment is practically the only option for a potential buyer to purchase residential premises before renting out a new house in the property they like.

There are certain legal risks associated with the assignment of rights in shared construction, so a potential buyer who decides to use the legal mechanism of assignment in the primary housing market needs to understand exactly how the assignment procedure occurs, as well as weigh the benefits and risks of their purchase.

Legal nature and essence of the assignment of the right of claim

An assignment is actually a transaction for the purchase and sale of housing, executed under an assignment agreement. Under this agreement, the shareholder (that is, the seller of the apartment in the new building) transfers to the other party - the assignee - its obligations and rights arising from the share participation agreement executed by the shareholder with the development company.

Assignment agreements are very popular among investors who buy housing from a developer, usually at the stage of obtaining construction permits, and then resell apartments in the final stages of development at a higher price.

The transfer mechanism is also used for home buyers in a new home who, for some reason, change their minds and want to return the invested funds. For them, an assignment agreement is practically the only opportunity to avoid the fines that are provided for in the agreement with the development company upon termination of the equity participation agreement.

By selling his unfinished apartment through an assignment agreement, the shareholder can not only return the funds paid in full, but also make a certain profit, since apartments in a building under construction usually increase in price from the start of the sale until the end of construction work.

Assignment is possible only before the transfer of rights to housing from the construction company to the participant in shared construction. That is, the assignment of the rights of the shareholder is possible only until these rights to the housing under construction have been realized. When the rights to the constructed apartment are transferred to the shareholder, that is, after the execution of the transfer and acceptance certificate of housing, it will no longer be possible to draw up an assignment agreement.

The peculiarity of the assignment agreement is that the buyer of the apartment, who has entered into an assignment agreement, acquires the rights and obligations of the assignor (seller) in full and in the future undertakes to fulfill all the terms of the original share participation agreement. For example, if in the agreement the shareholder and the development company have stipulated the terms of the installment plan, the assignee can make payments only under this installment plan. He can no longer stipulate any of his individual conditions in the agreement.

The main advantages and disadvantages of the assignment mechanism in new buildings

The main advantages of concluding an assignment agreement for the buyer are as follows:

• there is an opportunity to buy housing in the house you like if the apartments are already sold out;
• Sometimes buying an apartment by assignment is beneficial for the purchaser from a financial point of view. Firstly, sellers, wanting to quickly sell apartments, often offer lower prices at the stage of completion of construction of a new house than those offered by the official developer. In practice, the difference in the cost of an apartment established by the development company and a private investor can vary from 3 to 25 percent;
• In many cases, purchasing a home using the assignment mechanism is beneficial to buyers when taking out mortgage lending. If a buyer who has taken out a mortgage buys an apartment from a developer at the initial stage, he has to pay interest on the mortgage for several months (and sometimes years) without the opportunity to move into the purchased home. At the same time, the interest on the mortgage before the commissioning of a new house is often much higher in comparison with the commissioned property. By concluding an assignment agreement at the final stage of construction (in the absence of the possibility of concluding an equity participation agreement), the buyer begins to pay the mortgage immediately before moving to a new home.

The benefits of assignment of rights for the seller have already been discussed. This, first of all, is a real opportunity to make money on price increases that occur at various stages of construction of a new building, as well as the opportunity to return the money contributed under an equity participation agreement without penalties from the developer.

The main disadvantage of assigning rights is the increase in the buyer’s risks in comparison with concluding a share participation agreement with the developer.

Main risks under the assignment agreement

Despite the fact that concluding an assignment agreement is associated with a number of risks for a potential buyer, most of these risks can be reduced to almost zero by carefully studying the terms of the transaction and having certain legal knowledge.

So, let’s name the main risks when concluding an agreement for the assignment of rights to housing in a new house.

1. One of the main risks for the buyer of an apartment in a new building who draws up an assignment agreement is the possible recognition of the assignment agreement as invalid. If the agreement between the assignor and the assignee is for some reason declared invalid from a legal point of view, the new copyright holder will be able to make claims only against the assignor, and not the developer company.

To avoid such an unpleasant situation, the buyer needs to check the correctness of the assignment agreement, with the parties complying with the mandatory conditions. According to the law, a contract for the assignment of rights will be considered valid provided that:

• full payment by the shareholder of the entire amount indicated in the share participation agreement. All payments must be confirmed by an agreement on the offset of mutual claims;
• the presence of written consent of the developer company for the assignment of rights arising under the initial share participation agreement, if such consent is required in the agreement between the shareholder and the developer;
• availability of permission from a credit institution if the apartment was purchased by a participant in shared construction using mortgage financing.

If, when concluding an assignment agreement, the above requirements were violated, then, according to Article 390 of the Russian Civil Code, the original participant in shared construction bears responsibility to the assignee. The buyer of an apartment has the right, if the assignment is declared invalid, to demand from the assignor to return all financial resources received under the transaction, as well as to compensate for losses and interest for the use of money. However, in practice, getting your money back is not always easy.

2. Possible bankruptcy of the developer. The risk of facing financial insolvency of the developer may arise not only during the assignment of rights, but also during the initial share participation. However, often massive sales of apartments in a new building, especially at a reduced price, can be caused precisely by the impending bankruptcy of the developer, a significant delay in construction, or a significant violation of the terms of the contract by the developer.

In this case, the assignor, who assigned his right to an unfinished apartment in a new building, regardless of whether he knew about the developer’s problems when registering the assignment or not, is not responsible to the new shareholder for the further development of construction. After concluding an agreement on the assignment of rights, a new buyer who is dissatisfied with the terms of construction or the quality of the new house will not be able to present any claims to the seller who assigned the property. Requirements can only be made to the developer. However, if the construction company is financially insolvent, returning the money to the assignee will not be entirely easy.

To avoid such problems, the buyer is recommended to carefully study the developer's design and permitting documentation before purchasing, inquire about his financial condition and check the state of unfinished construction.

In addition, it is possible to include in the terms of the assignment agreement a clause on the guarantee of the assignor. Upon reaching the agreement of the parties to the assignment, the agreement specifies the assignor's obligation to accept a guarantee if the development company does not deliver the finished apartment to the assignee by a certain date. If the new shareholder subsequently terminates the contract with the development company, the specified guarantee will be considered void. As practice shows, such conditions on the assignor’s guarantee are rarely included in the assignment agreement.

3. Double assignment of rights under an equity participation agreement. In practice, there are cases when the same apartment is sold twice using an assignment agreement. At the same time, based on court decisions made in similar cases, the residential premises actually go to the buyer who was the first to draw up an agreement and register it. The remaining shareholders receive only the right to claim from the developer.

A potential buyer of housing in a new building needs to carefully study the terms of the upcoming transaction and clearly understand that, according to Russian legislation on shared-equity construction, the assignment of rights to housing is provided for only in one legal form, namely under a shared participation agreement. Assignment agreements, like the main share participation agreements, require mandatory state registration.

If a construction company offers to buy an apartment under some other scheme, the risks of participants in shared construction increase. Sometimes, instead of equity participation agreements, the following are used:

• investment agreements;
• preliminary purchase and sale agreements;
• preliminary share participation agreements;
• bill schemes.

The presence of such agreements does not indicate the developer’s dishonesty or any attempts at fraud, however, to reduce risks, it is advisable for a potential buyer to avoid such not entirely legal sales schemes that are not subject to mandatory registration with Rosreestr.

To avoid the above risks, you can agree to an assignment agreement if:

• the acquired residential premises were sold to the original participant under an equity participation agreement;
• Payment under the assignment agreement is made only after registration in the Rosreestr of rights.

4. Another risk for the assignee is the assignor’s violation of the condition of mandatory written notification to the development company about the transfer of rights to housing, which is the subject of the share participation agreement.

Rules for registration of assignment

As already mentioned, the assignment is formalized in the form of a written agreement, subject to state registration. You need to make sure that the previous shareholder notified the developer in writing about the transaction.

When concluding an assignment agreement, the mechanism of safe deposit boxes is most often used to transfer money. After completing the registration procedure for the assignment of rights, the seller can receive money.

Typically, the participation of the developer when concluding an assignment agreement is not necessary. But many construction companies include a separate condition in the share participation agreement about the obligation to obtain their consent when the assignor transfers the rights to the apartment to the assignee. In this situation, the involvement of the developer in completing the transaction will be required.

If at the time of assignment of rights the shareholder has not yet paid the cost of the apartment in full, written approval of the assignment by the developer is required. The assignment agreement specifies the conditions for transferring the debt to the developer company to the assignee.

You can download a standard agreement for the assignment of ownership rights to an apartment using this link:

Comments (40)

Elena | 2015/12/01

I have a lawsuit going on, we purchased an apartment from a general contractor, the seller notified the investor about the assignment, but several months before that, the investor sold our apartment to a third party, then transferred it to the developer, and they registered ownership of it and resold it to relatives. I'm not yet sure of the outcome of the case. And the article is wonderful, but in my case, what should I do?

admin | 2015/12/07

Hello, Elena! Since in your case, most likely, there is a violation of the terms of the contract by one of the parties, you, as a bona fide party to the contract, have the right to receive compensation. In addition, since the case is pending before the court, the decision will be made by the court based on the evidence and documents available in the case file.

Marina | 2016/01/24

Hmmm......now I have doubts about my deal. I submitted documents to the Russian Register.... I took out a mortgage for the apartment and now I doubt that the house will be delivered on time..... and whether it will be...... there are rumors that the developer is preparing documents for bankruptcy.... it’s scary.... I don’t know what to give

/N | 2016/02/07

Thank you for the article, it’s easy to understand... I tried reading on another site on this topic, I realized that I really wanted to sleep...

Irina | 2016/07/05

God, if only I knew all the nuances earlier. I have a mortgage. Construction of houses has stopped. It is unknown whether they will open the house or not. and now pay a mortgage for air for 15 years? I just won’t live to see this..... Now I understand how scary it is to live in Russia!

Anastasia | 2016/11/26

What to do in this case? We want to exchange a three-room apartment for two one-room apartments. A woman called, who is about to receive the keys to the rented housing cooperative, and is offering to exchange us under an assignment agreement.. Wouldn’t it turn out that we would issue our three-ruble ruble to her, and she, along with those two apartments, would also put a mortgage on us? ???
Because The article says that under this agreement both rights and obligations are transferred to the new buyer.

admin | 2016/12/09

Hello Anastasia! Before conducting a transaction, you need to familiarize yourself in detail with all the documents for the real estate, and also obtain information about the presence of any encumbrances in relation to these real estate objects. As for mortgages, under an agreement on the assignment of the right of claim, mortgage obligations cannot be transferred or can only be transferred with the written consent of the bank and the party accepting the obligation.

Maria | 2017/11/02

Good afternoon I purchased an apartment under an assignment agreement and the agreement contains the following clause: “The developer has no financial obligations arising on the basis of this Agreement between the assignor and the assignee. If the assignee refuses to acquire rights of claim to a shared construction project, this Agreement, and not the Agreement, is terminated. Tell me, please, does this mean that if the contract is terminated, I will deal with the company from which I purchased the apartment, and not the developer?

admin | 2017/11/21

Hello Maria! Yes, that's absolutely right. You can make any claims directly to the company from which you are purchasing the property.

Svetlana | 2017/11/21

Thanks for the useful information! I'm going to buy an apartment in a new building. The house has been commissioned, the apartments have been sold. I saw an option cheaper than the developer's. Subcontractors offer to buy under an assignment agreement. The scheme is as follows: the developer NIKP entered into a DDU with the investor ProekInvest, the investor ceded the right of claim to the contractor MFS (part of the DSK group of companies), who MFS ceded the right of claim to DSK, and DSK ceded the right to claim to Vertical. So, Vertical offers an apartment. This is such a complex chain. Can you advise what to do in this case?! Thank you!

admin | 2017/11/30

Hello Svetlana! The purchase of residential premises under an agreement for the assignment of the right of claim is a legal transaction that fully complies with current legislation. If a residential building has been commissioned and put into operation, you will be able to acquire ownership of residential premises under an assignment of rights agreement without any fears.

Irina | 2017/12/12

Hello! I bought non-residential premises under an assignment agreement, and the initial DDU, the assignment agreement and subsequently the ownership were officially registered. Now the registration records in the Unified State Register of All Owners have been canceled by court decision. In my case, do I need to file a claim against the developer or the individual seller?

admin | 2017/12/26

Hello Irina! First of all, to accurately answer your question, you need to familiarize yourself with the court decision, as well as the grounds for which the entries from the Unified State Register were canceled and ownership was terminated. In your situation, the claim must be brought directly against the party that violated your rights. This can be either the developer or a party to the assignment agreement, which is why a detailed analysis of the court materials of the proceedings is necessary to accurately establish all the circumstances.

Anastasia | 2018/02/24

Good afternoon We want to buy an apartment using the first transfer, but the first shareholder already has a transfer agreement and the keys in his hands. The developer is ready to cancel it, but we are a little scared, because it is not clear how legal all this is and what risks there may be. Thank you!

admin | 2018/03/03

Hello Anastasia! The purchase of housing under an agreement on the assignment of the right of claim is allowed only until the signing of the transfer and acceptance certificate of the apartment. If you trust the developer and the parties to the transaction, and also if the apartment acceptance certificates (their originals) are canceled in your presence, you can agree to carry out this transaction, however, in any case, a transaction knowingly carried out in violation of the requirements of the law is not considered illegal. by nature a clean and safe transaction

Andrey | 2018/03/30

Thank you for the article. But what to do if the apartment was sold several times under the assignment agreement, that is, the Contractor sold the rights to another legal entity. person and legal entity person the apartment is bought by an individual. What documents cover the obligations between the Contractor and the legal entity? face? Settlement reconciliation statements?

admin | 2018/04/16

Hello Andrei! To confirm the absence of debt under the agreement, the parties can submit any documents: for example, both acts of reconciliation of payments and certificates of absence of debts can be presented.

Galina Kurneva | 2018/04/02

A share participation agreement was drawn up between the developer and the contractor, and the house was delivered. After this, the contractor enters into an assignment agreement with citizen K., after which citizen K. enters into an assignment agreement with citizen G., now citizen G. entered into an assignment agreement with me, the agreement was submitted for state registration, in addition, all preliminary assignment agreements were subject to state registration. Question: from whom and according to what document should I receive an apartment? As far as I know, ownership of the apartment has not been formalized... Who should draw up the Acceptance Certificate for the transfer of the apartment to me - the developer? And how can I be sure that the previous owners of the right to the apartment paid for it in full and did not sell it?

admin | 2018/04/16

Hello Galina Kurneva! The act of acceptance and transfer of the apartment must be signed by the developer with you, since in accordance with the assignment agreement, all rights and obligations are transferred to the party to the agreement - that is, the right to accept the apartment and receive the keys is transferred to you. The fact of signing the assignment agreement, if it contains the appropriate conditions, confirms the absence of arrears in payment for the apartment. To confirm that there is no debt on payment for the apartment, you can contact the developer or request the necessary documents from the second party to the agreement.

Svetlana | 2018/09/20

Hello. I want to purchase an apartment in a building under construction, by assignment, with the direct participation of the developer (the developer will prepare all the necessary documents for registering the transaction)... Payment through a letter of credit in Sberbank. What points should you pay special attention to, besides those indicated in the article? From it, I basically only understood that it is necessary to make sure that the seller has paid for the apartment, and that there are no debts for this property to the developer.
In what case can a transaction be subsequently annulled by a court - as some commentators have been? Where can I find a standard assignment agreement to at least roughly understand how it should be drawn up legally correctly?

admin | 2018/09/21

Svetlana | 2018/10/28

Hello! Please tell me who is better to buy an apartment in a new building from an investor or developer.

admin | 2018/11/07

Hello Svetlana! To the greatest extent, the interests of the buyer are met by purchasing an apartment from developers, since in this case the relationship between the developer and the buyer is regulated by the law “On participation in shared construction of apartment buildings and other real estate” No. 214-FZ and the Federal Law “On the Protection of Consumer Rights”, on the basis in which the buyer has certain guarantees to protect his interests in the event of a violation by the developer of the terms of the current contract.

Elena | 2019/01/12

Hello, I would like to clarify your information if an assignment agreement has been drawn up... and it is declared invalid by the court... who retains the ownership rights to the apartment? (bankruptcy of the developer)

admin | 2019/01/28

Hello, Elena! In accordance with Part 2 of Art. 167 of the Civil Code of the Russian Federation, if the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when what was received is expressed in the use of property, work performed or service provided), reimburse its value, if other consequences of the invalidity of the transaction are not provided for by law. The final decision on the rights to residential premises after the transaction is declared invalid will be made by the court, taking into account all the circumstances of the case.

Love | 2019/04/06

Good evening! Is it possible to register an Assignment Agreement (DAPT) with 50% paid in the Registration Chamber? The contract was drawn up in installments for a year, the second 50% was to be paid in a year, but during this year construction stopped, and the company is currently in bankruptcy.

admin | 2019/04/21

Hello Love! The Federal Law “On State Registration of Real Estate” dated July 13, 2015 N 218-FZ does not prohibit the registration of agreements for the assignment of rights of claims in respect of which there is no full payment. Thus, this circumstance is not an obstacle to the state registration of the agreement. If a bankruptcy case has been initiated against the developer in the Arbitration Court, you also need to contact the arbitration manager with an application to enter the register of creditors' claims.

Svetlana | 2019/07/01

Very informative, thank you.
But I have an additional question
I am buying an apartment by transfer...
Price according to DDU 1990,000
Transfer price
2130 000
The shareholder must pay under the DDU only in the future, i.e. The shareholder has not paid for the share...in principle. What is the registration procedure?
They offer an assignment agreement, but knowledgeable lawyers say that I must draw up a debt assignment agreement in the amount of 1,990,000 with the shareholder, paying, as I understand it, to the developer’s account
And the rest will be paid by the shareholder...
help me please

admin | 2019/07/16

Hello Svetlana! In accordance with Art. 11 Federal Law of December 30, 2004 N 214-FZ (as amended on June 27, 2019) “On participation in shared-equity construction of apartment buildings” assignment by a participant in shared-equity construction of the rights of claims under the contract is allowed only after payment of the contract price or simultaneously with the transfer of the debt to a new participant shared construction in the manner established by the Civil Code of the Russian Federation. Payment of the price for the assignment of rights of claims under the contract is made after state registration if the assignor under the agreement (agreement) on the assignment of rights of claims under the contract is a legal entity. Thus, you need not only to conclude an agreement on the assignment of rights of claim, but also to resolve the issue of settlements under the agreement - for example, by concluding an additional agreement on the transfer of debt, as you were advised earlier.

Tatiana | 2019/10/14

Hello. I was planning to buy an apartment in a new building, the house will be commissioned in 2 months. It turned out that the apartment had a shareholder, some grandfather in a village 3000 km from our city. The apartment was purchased with a mortgage and they had to pay 500 thousand rubles (just as much as I have for the down payment). The manager of the developer's sales department has a power of attorney on behalf of this grandfather. They offer me to transfer 500 thousand to my grandfather to pay for the remaining mortgage and wait for the paperwork to be completed when the apartment ceases to be an encumbrance with the bank. And then pay the remaining amount of the cost of housing by drawing up an assignment agreement. Is it worth getting involved and what risks are expected?

​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 to the commissioning of the house, 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 has been 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. Contract of sale. 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 actual 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 the result is 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 (assignment) 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.

Great 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.