Should I buy a hereditary apartment?

Often people refuse to buy an apartment for only one reason - it passed to the seller by inheritance. The risk of future litigation with unknown heirs is too great, who may suddenly appear five or ten years later and claim their rights to the apartment along with a claim to invalidate the contract of sale of the apartment. In this case, the potential buyer sees the court's decision as unpredictable. Is this caution justified, or does the fear come from uncertainty and ignorance of the issue?

Often people refuse to buy an apartment for only one reason - it passed to the seller by inheritance. The risk of future litigation with unknown heirs is too great, who may suddenly appear five or ten years later and claim their rights to the apartment along with a claim to invalidate the contract of sale of the apartment. In this case, the potential buyer sees the court's decision as unpredictable. Is this caution justified, or does the fear come from uncertainty and ignorance of the issue?

Long line of heirs

Let us recall the main legislative norms enshrined in the Civil Code (full information is contained in the section "Inheritance Law", Articles 1110-1185).

Property is inherited by will or by law (Article 1111 of the Civil Code). The second takes effect in the absence of the first.

A will can be drawn up in favor of any person (Article 1119 of the Civil Code), who will receive everything in the absence of applicants for a mandatory share in the inheritance. Minors or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents have the right to a mandatory share (Article 1149). They receive at least half of the share that would be due to each of them in case of inheritance by law.

There can be several wills, the last one by date is considered valid.

A will can be declared invalid in court if it is forged or if at the time of its drawing up the person was incapacitated.

The testator can appoint an executor (Article 1134 of the Civil Code), who will help in a civilized way to transfer the property to the heirs, until they finally quarreled.

If there was no will or it was recognized by the court as fake or invalid, then the property is inherited by law. In this case, the rule of sequence applies: the heirs of each subsequent turn enter the inheritance only in the absence of the heirs of the previous turn (or in the case of their refusal from the inheritance, deprivation of their inheritance by court - Art. 1117 on unworthy heirs). The sequence and list of heirs are indicated in Art. 1142-1145 and Art. 1148:

1st stage: children, spouse and parents of the testator (Article 1142). The grandchildren of the testator and their descendants inherit by right of representation (if one of the heirs of the first stage died before the testator, then his share passes in equal parts to his descendants, that is, the testator’s grandchildren).

2nd stage: full and half brothers and sisters of the testator, his grandfather and grandmother, both on the father's side and on the mother's side. Children of full and half brothers and sisters of the testator (nephews and nieces of the testator) inherit by right of representation (Art. 1143).

3rd stage: full and half brothers and sisters of the testator’s parents (testator’s uncles and aunt). The cousins ​​and sisters of the testator inherit by right of representation (Art. 1144).

4th stage: relatives of the third degree of kinship - the testator's great-grandfathers and great-grandmothers.

5th stage: children of the testator's nephews and nieces (cousins ​​and granddaughters) and siblings of his grandfathers and grandmothers (great-uncles and grandmothers).

6th stage: relatives of the fifth degree of kinship - children of the testator's cousins ​​and granddaughters (great-great-grandchildren and great-granddaughters), children of his cousins ​​and sisters (great-nephews and nieces) and children of his great-uncles and grandmothers (great-uncles and aunts).

7th stage: stepsons, stepdaughters, stepfather and stepmother of the testator.

If no one has declared the rights to inheritance, the property is called escheat and goes to the state, and then, as a rule, is sold at auction.

On the timing of the inheritance

The term for entering into an inheritance (Article 1154 of the Civil Code) is 6 months from the date of opening the inheritance (the day of the death of the testator or the day of his recognition by the court as dead). If a person inherits property as a result of the refusal of the previous heir, then three months are added to the term, that is, the new heir has nine months to register the inheritance.

If the six-month term is missed by the heir, then his case is not hopeless, as stated in Art. 1155: “The court may restore this period and recognize the heir as having accepted the inheritance if the heir did not know and should not have known about the opening of the inheritance or missed this period for other valid reasons and on the condition that the heir, who missed the period established for accepting the inheritance, applied to the court within six months after the reasons for missing this period have disappeared ”.

In other words, if a person had a valid reason, for example, he was sick, was absent from work abroad for a long time, etc., then the court can restore him to inheritance rights.

The issue can be resolved without going to court, "subject to the written consent of all the other heirs who have accepted the inheritance."

Most importantly, the inheritance limitation period is not limited by law. The heir must go to court within three years from the moment he learned about the death of the testator. However, he could find out about this after 5, 10 or 15 years, if the reason for such a long ignorance is recognized as valid. It is in this temporary uncertainty that the main danger for the buyer of a hereditary apartment lies: an unaccounted heir may appear at any time, even years after the death of the owner of the apartment. The buyer's only hope is a court decision in his favor.

Courts - for a bona fide purchaser

In the past 10-12 years, the buyer of a hereditary apartment has more and more chances to legally protect their rights and keep the purchase. The ruling of the Constitutional Court of the Russian Federation of April 21, 2003 is called historical, its essence boils down to the fact that a person who considers himself the owner of the property cannot reclaim this property if it was purchased by a bona fide purchaser. The signs of a bona fide acquirer are set out in Art. 302 of the Civil Code of the Russian Federation: this is the one who acquired the property for a fee, and also did not know and could not know that the seller had no right to alienate this property (“if the property was acquired for a fee from a person who did not have the right to alienate it, about which the acquirer did not know and could not know "(conscientious acquirer)").

By the way, another important aspect arises here: if the property was purchased at a lower price, then the court may qualify such an acquisition as unfair. Undoubtedly, it is better to indicate the full price in the contract of sale of an apartment - this not only guarantees the return of all funds spent on the purchase in a pinch, that is, the recognition of the transaction as invalid, but also convincingly confirms the good faith of the acquisition.

Additional support to the buyers was provided by the Resolution of the Plenum of the Supreme Court of the Russian Federation of 04/29/2010 (“On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”). Paragraph 38 states that "the acquirer is recognized as being in good faith if he proves that during the transaction he did not know and should not have known about the illegal alienation of the property by the seller, in particular, he took all reasonable measures to find out the seller's powers to alienate the property."

But the most valuable and key recommendation to the courts was made in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 "On judicial practice in inheritance cases", paragraph 42: "If, when accepting an inheritance after the expiration of the established period, in compliance with the rules of Art. 1155 of the Civil Code of the Russian Federation, the return of inherited property in kind is impossible due to the absence of the appropriate property from the heir who timely accepted the inheritance, regardless of the reasons why it became impossible to return it in kind, the heir who accepted the inheritance after the expiration of the established period has the right only to monetary compensation for their share in the inheritance (when accepting the inheritance after the expiration of the established period with the consent of other heirs - provided that otherwise is not provided for by an agreement concluded in writing between the heirs). In this case, the actual value of the inherited property is estimated at the time of its acquisition, that is, on the day of opening the inheritance (Article 1105 of the Civil Code of the Russian Federation). "

In other words, if the inherited apartment was sold, and then a new heir appears and demands to recognize the transaction as invalid, then he can only receive monetary compensation for his share of the inheritance, for which he will have to apply to those heirs who sold the apartment.

We can say that, in theory, the courts are on the side of the bona fide purchaser. There are examples of reverse decisions in judicial practice, but they are few in number.

And yet, theory remains theory, and the main nuances and problems are better known to professionals who inevitably face hereditary real estate.

Should you buy?

Hardly anyone can answer such a question better than realtors, who have behind them a long-term practice of selling hereditary apartments. And if you decide to buy, it is better to foresee possible risks in advance. For advice, we turned to experts from Moscow real estate agencies.

- Is it worth buying an inherited apartment? How big are the risks for the buyer and what are they? Is it important to indicate the full cost in the contract?

Vitaly Ponomarev, manager of BEST-Real Estate, Na Barrikadnaya branch: “Before buying any apartment, especially a" hereditary "one, you need to identify all possible risks for the buyer. The main risk of buying an apartment acquired by the seller by inheritance is the inability to verify all potential heirs who can claim inheritance. The buyer and his realtor will not be able to find out about all the relatives who can claim their rights. Close relatives may not always know about such potential heirs.

An example from practice: after the death of a man, his son from his first marriage, about which the “only” (as she believed) daughter from the second marriage, did not know about inheritance rights.

The general limitation period is three years. But in this case, three years are calculated not from the moment of the death of the testator, but from the moment when the heir learned or should have learned about the death of such a person. And the heir could find out about the death of a relative in a few years, for example, in connection with a long trip abroad, military service, imprisonment, or is the heir of the 2nd or 3rd stage (in the absence of heirs of an earlier turn) and rarely communicated with the deceased. Therefore, it cannot be guaranteed that such a person will not claim his right to a share in an apartment after 3, 5 or 10 years if he proves that he did not know about the death of a relative.

Recently, the judicial practice in such cases has slightly sided with the person who timely accepted the inheritance. The courts tell the late heirs that if you are "close" relatives, you should have known about the death of the testator. And if you did not know about death, what kind of close relatives are you? The limitation period is considered from the moment of death. But this does not guarantee that the potential heir will not be able to restore the term for accepting the inheritance.

The full cost in the contract should be indicated when buying any apartment, because only this guarantees the possibility of full compensation in the event of termination of the transaction. It is not possible to check EVERYTHING in hereditary apartments, therefore no realtor can 100% guarantee his client-buyer the absence of risks with the appearance of other applicants for the apartment, and, accordingly, the return of the entire amount if the price is understated in the contract. The decision is up to the buyer. Sometimes customers take such a risk when buying, while getting something more valuable and important to themselves.

But it is important to understand what the specific situation is in a particular transaction. It is impossible to say either "for" or "against" the purchase of hereditary apartments in general. As with any real estate transaction, you need to deeply assess the situation for each apartment individually. "

Oksana Myagkova, lawyer of the secondary branch of the agency "Azbuka Zhilya": “Due to the fact that any purchase of an apartment by a buyer can be risky, we would not answer unequivocally whether or not it is worth buying an inherited apartment. To do this, you need to familiarize yourself with the documents and history of the apartment, and the inheritance is not the same. Since 2001, the third part of the Civil Code of the Russian Federation, which regulates inheritance law, has been in effect, with the introduction of which the circle of heirs has been increased. At the present time, there is no unified information base of the relatives-heirs of the testator, therefore, it is not possible to unequivocally confirm whether all the heirs have inherited or someone's right has been violated.

The inheritance can be accepted within six months from the date of opening the inheritance. After six months, at the request of the heir who missed the deadline established for accepting the inheritance, the injured heir's violated right on the basis and in accordance with Art. 1155 of the Civil Code of the Russian Federation can restore, and claim a share in the inherited apartment, this is the risk of the buyer of the inherited apartment. Selling or buying three years after the inheritance, from practice, is the safest, because during this period, as a rule, all heirs have the opportunity to learn about the opening of the inheritance (the day of the death of the testator is recognized as the day of the opening of the inheritance (Article 1114 of the Civil Code of the Russian Federation)), and this is a period sufficient to restore their violated rights.

Both for a hereditary apartment and for any other, it is necessary to indicate the full market value of the purchased apartment in the purchase and sale agreement, because in case of termination of the contract of sale of an apartment, the seller is obliged to return to the buyer the money indicated and received under the contract of sale, and the heir, whose right has been violated, can claim either a share of the inherited apartment or a share of the value of the sold inherited apartment. And, of course, it will be more interesting for him to receive a share of the full value specified in the apartment purchase and sale agreement from the heirs-sellers.

- Oksana, were there any indicative cases of transactions with inherited real estate in the practice of your company and what advice could you give to potential clients (sellers and buyers)?

Our agency has drawn up more than one transaction with hereditary apartments, having previously carried out the necessary actions to reduce the risks of acquiring a hereditary apartment. One of these actions is to obtain a notarial statement from the heirs, according to which the heirs-sellers undertake to settle accounts with unknown heirs (if they suddenly show up and declare their violated rights) independently and at their own expense, preventing the seizure of the hereditary apartment from the buyer.

- And if the terms of inheritance were missed and the apartment was registered through the court, then how bad is it for sale? Or was it formalized by a court decision as a result of a dispute between the heirs? Does this affect the liquidity, the price of the apartment?

For professionals, such real estate transactions, according to which the title document is a court decision that has entered into legal force, including a court decision to restore the terms of inheritance, is not a peculiarity. Theoretically, if there is a court decision that has entered into legal force, we consider it as confirmation that the issue of heirs and the apartment has already been considered, and the dispute is over. From this point of view, such a title document calms down a little and does not affect liquidity, as well as the price. However, all cases are individual. "

Inheritance and notary

Studying the nuances of lawmaking or arguing about the advisability of buying hereditary real estate, one cannot but turn to the main person in charge of inheritance affairs - a notary. In addition, the latest innovations in notarial legislation have provided better protection for the bona fide purchaser and the transparency of information. To understand the main issues helped us Alexey Komarov, notary from St. Petersburg.

- Which notary can conduct an inheritance business - only the one for whom a specific address is assigned or any notary chosen by the testator?

Since 2012, in St. Petersburg, heirs to open an inheritance case after the death of the testator have the right to apply to any notary. It is important for the heirs not to miss the deadline for accepting the inheritance established by law - 6 months.

- Can a situation arise when the same inheritance is maintained by different notaries?

This can only happen as a result of a failure of the electronic system, which is almost impossible. Even if this happens, the notaries conducting the inheritance case will see in the program that the inheritance case has been opened incorrectly, and the issue will be resolved. The interests of the heirs, in any case, will not suffer.

- If the testator died, does the notary inform the heirs about this (if there is a will) or the heirs should apply themselves?

Acquisition as a result of the acceptance of the inheritance of the property rights and obligations of the testator is the right of the heirs and, as a general rule, does not create any obligations for potential heirs.

- What is the cost of the services of a notary who manages the inheritance business and what is the work of a notary in the case of an inherited apartment?

The task of a notary is to ensure the legal transfer of property and / or property rights and obligations of the testator, based on his will, expressed in the will or, in his absence, in accordance with the law. Control over the legal transfer of rights is very important from the point of view of civil turnover, since it guarantees the new owner, who acquired the property from the heir, a stable title of the owner. The cost for registering an inheritance consists of many factors and depends on the composition of the property, the number of heirs and the benefits they have, etc. On average, formalizing an inheritance costs the heir from 7,000 to 10,000 rubles.

Has a single database of certified wills been created in Moscow, which was planned to be done in 2014? If so, how will it work and who will be able to use it?

- The base itself - as a form - exists, about its filling capacity you need to check with the FNP, but I think that in St. Petersburg all notaries have already submitted their wills there.

Note: Let us remind you that on July 1, 2014, the All-Russian register of inheritance cases began to work, which includes, among other things, all information about wills and their cancellation. This will allow you to collect all information on a single portal and avoid reopening of cases, duplication and fraud with fake wills, which will much better protect the rights of heirs. A similar program “Inheritance without Borders” was operating in Moscow, in which 710 thousand inheritance cases were registered, then these data were transferred to the new Russian register.

- What advice would you give to the buyer of an apartment that has been inherited by the seller? Are there, in your opinion, risks and how can they be minimized?

The problem is that today in Russia any basis of the seller's ownership can be challenged. Regardless of what transaction is at the base of the title. The testator himself could acquire inherited property under a transaction in a simple written form and his right registered in the Unified State Register of Legal Entities may be challenged or null and void.

- What advice would you give to buyers?

1. Acquire inherited property, at least after one year from the date of registration of the title to the owner. One year is the limitation period for a voidable transaction.

2. Indicate in the purchase transaction only the real price. This is important in case of termination of the contract or its invalidation and for any form of transaction (PPF or notarial), as well as due to the fact that from 01.01.2015 the notarial document has a special evidentiary force in court, aimed at protecting a bona fide acquirer. Therefore, it will be strange if the buyer begins to interpret the price specified in the transaction and which is its essential condition, differently than indicated in the text of the agreement.

3. Choose the notarized form of the transaction - since, according to judicial practice, the buyer in this case is recognized as a bona fide owner, which gives a guarantee that the property will not be reclaimed from him if the transaction is declared invalid, taking into account the amendments under Art. 302 of the Civil Code of the Russian Federation. In addition, the tariffs for notary services have been reduced by three times since January 1, 2015, and the average transaction value will be 10,000 -12,000 rubles.

Title insurance - additional protection

Today, buying a hereditary apartment, the buyer is protected from trouble better than, say, 10-15 years ago. Risks are reduced, but not excluded. Additional protection can be provided by title insurance, which has not yet received due recognition in Russia and is in little demand. Not every insurance company offers such a service, although title insurance is considered promising for Russia, it is a reliable tool for financial protection of the owner.