home Diseases We study the contract of exchange of real estate. What is real estate exchange and how is it beneficial for the persons who have concluded the contract? Real estate exchange contract form

We study the contract of exchange of real estate. What is real estate exchange and how is it beneficial for the persons who have concluded the contract? Real estate exchange contract form

One of the most common transactions between citizens - individuals is barter agreement. Under an exchange agreement, real estate is exchanged or some small items are exchanged.

An exchange agreement is also used between legal entities.

The rules for drawing up and concluding an exchange agreement are regulated by the civil legislation of Russia.

Barter agreement and the Civil Code

An exchange agreement is understood as a civil law agreement, according to which each of the parties undertakes to transfer one product to the ownership of the other party in exchange for another (paragraph 1 of article 567 of the Civil Code).

This definition of an exchange agreement covers the mutual obligations of the participants in this legal relationship, which consist in the transfer of certain property from one party to another in exchange for some other property. The word "other" is used twice in this definition. The first time it refers to the subjects of the contract, that is, to the participants, the second time - to the object.

Norms on the sale and purchase in the Civil Code and the barter agreement

Although the chapter of the Civil Code devoted to and defining the contract for the exchange of real estate or movable property, it is established that certain rules on the sale and purchase can be applied to it, at the same time it is explained that such rules must not be in conflict with this chapter and in general with the essence exchange.

For example, these include articles that involve payment for any product or product.

It is known that exchange does not imply and is not accompanied by monetary settlements. The only exception is situations in which objects of property that differ in value are exchanged. Then, accordingly, a surcharge is made in the price.

Change in housing relations

The exchange of property such as residential premises is a special kind of civil legal relations.

In practice, such an exchange is carried out with the help of specialized organizations, agencies, although it can be carried out without these organizations.

Note that the contract for the exchange of an apartment or other real estate is regulated by the housing legislation of Russia.

The main features of an exchange agreement

The main features of an exchange agreement include the following features:

Firstly, an exchange agreement refers to such agreements that are aimed at the transfer of property (as well as a sale and purchase agreement, a loan agreement, rent, loans, and others.).

Secondly, under an exchange agreement, property is transferred to the ownership of the other party.

Thirdly, the exchange agreement differs from other onerous agreements, under which property is also transferred to the ownership of the counterparty (purchase and sale agreement, loan agreement), by the nature of the counter provision. The parties to an exchange agreement exchange one commodity for another.

Fourthly, under an exchange agreement, the right of ownership to the goods received in the exchange procedure (for example, an apartment, a car) passes to each of the parties simultaneously after the obligations to transfer the goods are fulfilled by both parties (Article 570 of the Civil Code of the Russian Federation).

The main features of the exchange agreement

The exchange agreement is one of the agreements aimed at the transfer of property.

Under an exchange agreement, the exchanged property is transferred to the ownership (and in certain cases - to or operational management) of the counterparty.

The peculiarity of the subject of the contract (exchange of goods) is that one product is exchanged for another, and not for money.

Under an exchange agreement, the ownership of the goods received in the exchange procedure passes to each of the parties simultaneously after the obligations to transfer the goods are fulfilled by both parties (Article 570 of the Civil Code), and not from the moment the thing is transferred by at least one (clause 1 of Art. 223 GK).

According to an exchange agreement, one transfers one commodity to another counterparty in exchange for another in ownership.

Also, an exchange agreement is sometimes called barter.

When implementing such an agreement, each of the parties is simultaneously recognized as the seller of the transferred goods and the buyer of the goods accepted by it in exchange.

Subjects of the barter agreement

The subjects of an exchange agreement can be both legal entities and individuals.

Subject of the contract

By fulfilling the terms of the exchange agreement, you can transfer both goods and property rights.

Transfer of ownership of goods exchanged under an exchange agreement

The transfer of ownership of the exchanged goods occurs simultaneously after the fulfillment of the obligations to transfer the relevant goods by both parties, unless otherwise provided by law or the contract.

At the same time, the legislator gives the parties the opportunity to establish other conditions for determining the moment of transition and the emergence of this right.

The price of goods exchanged under an exchange agreement

Since according to the exchange agreement there is no payment of money for the purchased goods, the parties in the agreement may not indicate the price of the exchanged goods. In such cases, these goods are called equivalent, unless otherwise follows from the contract.

The party obliged to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices. However, it should be noted that such an additional payment may not necessarily be made in cash. The parties have the right to establish in the contract other options for additional payment, a different procedure for compensation. For example, if a car exchange agreement is concluded for another vehicle, but more expensive, then the parties to the transaction may agree that the additional payment will be made in money, or they may agree on compensation, for example, auto parts or some other property.

Terms of exchange under an exchange agreement

The legislator does not establish any specific deadlines for the exchange of property. Including such conditions are absent and applicable to the simultaneous transfer of property by both parties. One party can transfer the goods today, the other after some time, determined by the agreement.

At the same time, the rights of the party that transferred the property first are protected by law.

In particular, the protection of the interests of such a party is regulated by the norm 328 of the Civil Code. This article describes the conditions under which the first party may stop the performance of its obligation or even refuse such performance, and in addition to everything else, also demand damages. Such conditions include the failure of the counterparty to fulfill the obligation, as well as all kinds of circumstances that may directly indicate the fact that such an obligation will not be fulfilled on time

Still have questions about accounting and taxes? Ask them on the accounting forum.

Exchange agreement: details for an accountant

Housing exchange is not the most common option for changing an apartment or house. However, in some cases, it is he who is the best option. More often such transactions are made by close relatives, friends, acquaintances.

Do not confuse the exchange agreement with the exchange of an apartment. The latter simply provides for a change of residence without taking ownership (social rental housing, for example).

If, as a result of the exchange, the payment is not money, but property rights to real estate, then this is an exchange.

In Art. 567 of the Civil Code of the Russian Federation sets out the concept of an exchange agreement - this is a kind of real estate transaction, as a result of which the owners exchange housing.

A priori, this exchange should be equivalent, although the text may indicate otherwise.

The nuance of such an agreement is the legal status of the parties - each of them simultaneously acts as both a buyer and a seller.

The fact of the exchange of housing is confirmed by the conclusion of a written agreement between the parties. The document is drawn up as a civil law agreement.

At its core, it is the same with its inherent moments:

payment for housing is not money, but property rights, into which each of the apartment owners enters upon the entry into force of the contract;
the exchange agreement is considered executed after the registration of ownership of the premises, accompanied by the receipt of new, and other documentation.

In cases where the exchange is unequal, the transaction can no longer be considered a true "barter", since one of the parties receives some profit. All these nuances are also prescribed in the contract.

Such transactions, as well as, are regulated by the norms of the Civil Code of the Russian Federation.

In what cases is it beneficial to conclude a contract?

The main reasons that prompt homeowners to conclude can be considered:

the desire to improve their living conditions with minimal time;
trying to save money on taxes.

The latter is often the root cause of bartering. The fact is that in an equivalent exchange, when the property of the owners suits both parties and their value is equal, state tax is not paid.

Even if the property is not of equal value, the deductions will be significantly lower. Since it involves a deduction from the profit received, it will not be charged from the total estimated value, but only from the difference.

The need to pay personal income tax arises only for those owners who own housing less than 3 years. And it does not matter how the owner entered into the rights: inheritance.

During the tenure less than 3 years you can use, prescribed in Art. 220 of the Tax Code of the Russian Federation.

Transactions between close people of unequal apartments often occur with an additional payment “in an envelope”, when the amount of profit from the sale does not appear anywhere at all.

In practice, the conclusion of such agreements is carried out most often between relatives or friends.

It is very difficult to find an outsider who owns a home who is satisfied with your apartment, and whose property you like.

Nuances in the execution of the contract

Such a document is concluded exclusively by the owners of real estate. Its main points are spelled out in Art. 567 of the Civil Code of the Russian Federation.

Video: Substitution of a sale and purchase agreement with an exchange agreement

The video tells about a common method of fraud in concluding real estate transactions, when a real estate exchange agreement is formally replaced by a sale and purchase agreement. What is the deception and what legal consequences can come for the parties to such a transaction?

The apartment exchange agreement is bilateral, in which each counterparty acts as both a seller and a buyer.

The exchange implies that by giving your property to another person, you become the owner of his living space.

The essence of the transaction and its difference from the contract of sale

The main difference between an exchange and a contract of sale is that a pure housing exchange is carried out without money.

In a certain sense, residential exchange is much safer:

An added benefit of this deal is exemption from the obligation to pay income tax when exchanging equivalent real estate objects.

But at the same time, this is also a disadvantage, since it does not allow you to take advantage of a tax deduction. This can be done when selling an apartment.

Despite the use of the words "exchange" and "exchange" as synonyms, legally they are not the same thing:

The term “exchange” refers to municipal apartments, accommodation is regulated by a social tenancy agreement or an order for an apartment, if parents or grandparents received housing during the Soviet era and did not re-register documents later.
The word "mena" is used when referring to transactions with privatized apartments, their owners have evidence of ownership.

It will not work to exchange privatized housing for municipal housing or vice versa Since 2005, such transactions have been banned.

Essential terms of the contract

There are only two such conditions, and without them it is impossible to conclude an apartment exchange agreement:

Additional terms of the agreement

All other conditions are optional. But this does not mean that they can be omitted.

These conditions may include:

Indication of the cost of housing and additional payments for the transaction

If the apartments cost the same, then everything is simple - one price is indicated, it is emphasized that the transaction is made without additional payment.

With the difference in cost indicate the prices of both apartments and the surcharge, the size of which depends on the decision of the parties. It should also be noted in the contract how and within what time frame one party must transfer money to the other.

With this surcharge, the one who received it will have to pay personal income tax. And the one who gave the surcharge can claim a tax deduction if he owned the exchanged apartment for more than 3 years.

This is only possible if provided documents confirming the transfer of funds under the transaction.

Do not throw away any receipts for receiving money or payment orders for cashless transfers of funds, they will definitely come in handy.

Since prices are determined by the parties, when making a deal between close relatives or good friends, you can indicate in the contract that there is no additional payment, and transfer it without any documents.

But even acquaintances can "throw" and not give the money, in this case you will not prove anything.

Besides, so easy to get tax problems. If the surcharge is small, for example, 50,000 - 100,000 rubles, you can take a chance and not prescribe it in the contract. And if the old Khrushchev is exchanged for a comfortable apartment in a new building, then anyone will understand that there should be an additional payment.

Rosreestr may not miss such a deal, and the tax authorities will be interested in it. Therefore, it is better to draw up a large surcharge properly.

Notary registration of the contract

You can do without it if you are confident in the other side and your knowledge of the laws, and just sign the contract.

But it is better not to save on a notary:

None of the parties will then be able to say that he knew about some article of the Civil Code of the Russian Federation or was drunk at the time of the conclusion of the contract, and therefore does not remember anything.
If the documents are lost, the notary will duplicate them, otherwise restoration will be impossible.

Termination conditions

There are two ways to terminate the apartment exchange agreement:

by mutual agreement;
judicially.

By mutual agreement, the transaction can be terminated in two ways:

If the desire to return everything to its place appeared simultaneously on both sides of the transaction. Then there are no problems, the contract is terminated, and everyone returns their living space.
If the initiative to terminate the transaction arose from one of the parties to the agreement, a written demand must be drawn up for the other party to the agreement, in which it should be written why the agreement is to be terminated. Within 30 days the other side must decide whether it agrees or not. If agreement is reached, then the contract is terminated, as in the previous case.

If the parties do not agree to terminate the transaction, you should apply to the court, prescribing the grounds for termination in the claim.

These may include:

You can file a claim within a year or three depending on the reason for the termination of the transaction.

What to do if you want to change an apartment?

The video story tells what a barter agreement is, how this transaction is regulated by the legislation of the Russian Federation.

Advice is given on how to properly draw up a real estate exchange agreement, what are its features, what should be indicated in the text of the document, how to correctly indicate the cost of the exchanged apartments and describe the conditions for additional payment in case of an unequal exchange.

When it becomes necessary to change the place of residence, the owners of real estate most often resort to the implementation of a transaction related to the purchase or sale of property. However, there are situations when, instead of exchanging housing for a certain amount of money, citizens prefer to make an equivalent exchange of one property for another. If you are faced with a similar situation, then you should keep in mind that in order to confirm the transfer of real estate between the participants in the transaction, an exchange agreement is drawn up. The presented publication will help you to learn more about the rules for drawing up an agreement, as well as the principles of the transaction.

Deal Features

In accordance with the content, an exchange agreement is an agreement on the transfer of ownership of real estate from one owner to another. It is assumed that when a bilateral agreement is drawn up, both parties to the transaction have obligations to exchange real estate. It follows from this that the parties to the contractual relationship simultaneously sell and buy new property, which means that each of them acts as a seller and a buyer. The ability to implement two transactions within one is a key feature of the barter agreement, which distinguishes it from other types of civil law agreements.

In addition, attention should be paid to the following characteristic features of the exchange agreement:

It is important to know...

According to the general rules, a transaction for the exchange of real estate is carried out in relation to objects of equal value. However, it is not easy to find an equivalent housing for an exchange. Therefore, by law, the parties are entitled to agree on the amount of the surcharge to compensate the party whose property is less in value;
It is forbidden to exchange real estate for a certain amount of money, as this is contrary to the principles of the exchange agreement;
The agreement is consensual and paid;
In most cases, the transfer of ownership to new owners of real estate is carried out simultaneously. In some situations, the participants in contractual relations have the right to determine different terms for the exchange of property and indicate them in the text of the document;
When concluding an exchange agreement with equivalent items, persons interested in the exchange of ownership rights to real estate are exempt from paying taxes. If the agreement is executed with the condition of making an additional payment, the amount of tax payments will be lower than in the case of a purchase and sale;
If the real estate has several owners, then before signing the exchange agreement, you should obtain written permission from third parties to make the exchange;
If the transaction affects the interests of citizens who have not reached the age of majority, then before drawing up a civil legal agreement, it is required to agree on the terms of the transaction with the guardianship and guardianship authorities;
The subject of the agreement has the right to be not only real estate, but also securities, movable property, and other valuables.

The parties to an exchange agreement can be both individuals and legal entities, as well as state and municipal entities. The main condition is that each of the parties participating in the exchange agreement is obliged to confirm the existence of ownership rights to the exchanged item through title documents. State and municipal institutions may be parties to an exchange agreement if the consent of the owner of real estate to conclude a transaction is obtained. It is allowed to exchange property of the state for the property of a private person.

How to draw up a contract for the exchange of real estate?

The legislation of the Russian Federation does not provide for a unified form of a contract for the exchange of real estate. It follows from this that a civil legal agreement is drawn up in accordance with the rules of official business documentation:

Competent and consistent presentation of information;
No errors or misprints;
Entering correct information;
Business style presentation of information.

In order to draw up a real estate exchange agreement correctly, it is recommended that you familiarize yourself with its generally accepted structure and content:

Unlike state registration, contacting a notary's office to draw up and certify an exchange agreement is not a mandatory step in the transaction. Participants of contractual relations have the right to independently draw up a document and certify its authenticity with their signatures. Subsequently, when applying to the registration authority, the employees will additionally check the real estate exchange agreement and related documents. It should be borne in mind that contacting a notary has a number of positive aspects. Among them, the correct drafting of the agreement and the possibility of its restoration in case of damage or loss.

Agreement on the exchange of immovable for movable property

The possibility of persons interested in the exchange of property to conclude an exchange agreement in relation to immovable and movable property has been legally established. The agreement must be drawn up in writing, indicating the essential terms of the bilateral transaction. To draw up a contract for the exchange of immovable property for movable property, the persons participating in the transaction, if desired, can apply to a notary. If the parties have decided that they will draw up the document on their own, then it should be remembered that the following key points need to be agreed upon:

Description of the characteristics that individualize the objects of the exchange agreement. For example, if an apartment and a car are to be exchanged, it is necessary to indicate in the content of the document - the address, floor, total area and area of \u200b\u200beach room separately, what furniture is attached, what are the shortcomings. When describing the car, it should be noted - brand, color, technical characteristics, existing imperfections;
If third parties have property rights in relation to the subjects of the transaction, it is necessary to reflect information about them in the text of the agreement;
The cost of objects of a civil law contract is determined and prescribed without fail. Since the persons involved in the process exchange real estate for movable property, it is important to establish the difference in the value of the objects and how to compensate for it. Otherwise, the owner of the highest value object will lose the opportunity to receive a surcharge.

Otherwise, the structure and content of the contract for the exchange of movable property does not differ from the standard agreement.

The contract for the exchange of real estate for movable property is subject to mandatory state registration, since one of the exchanged items is real estate. To register a document, you need to write an application, prepare the necessary list of documentation and contact Rosreestr.

With surcharge

One of the key stages of a transaction related to the conclusion of a contract for the exchange of real estate is the stage of determining the price of each of the items to be exchanged. The unequal value of the exchanged real estate necessitates the execution of an agreement on new terms.

The contract for the exchange of real estate with a surcharge, in addition to standard clauses, must include a section reserved for describing the subjects of the agreement. In addition to the presentation of detailed and reliable information characterizing the objects of the transaction, the cost of each of them is reflected. If it was found that the prices for real estate transferred under an exchange agreement differ, this nuance should be indicated in the content of the agreement. It is also required to note the amount to be reimbursed to the second party to the contractual relationship, the methods and procedure for compensation.

In addition to the possibility to compensate the difference in monetary terms, the parties have the right to agree on compensation for the additional payment through other property. For example, when exchanging a smaller house for another, you can include information about the exchange of a house for a house with a car in the document. Regardless of which object will be transferred into ownership, another person should provide information about it, including shortcomings.

The procedure for registering a contract for the exchange of real estate

Based on the content, state registration is mandatory for all real estate objects. This also applies to the exchange agreement, according to which only one of the objects is real estate. It follows from this that the right of ownership to real estate under an exchange agreement arises after applying to the authorized state body.

In order to avoid receiving a refusal to register a real estate exchange agreement, the application must specify a list of persons who have ownership of the objects being exchanged, including minor children. In addition, it is indicated that before signing the agreement, a written permission was obtained to transfer ownership of real estate to a new owner. In case of non-compliance with the indicated legislative requirement, a refusal to register an exchange agreement will be received.

To initiate the process of registration of a bilateral agreement, each of the parties involved in the process must prepare a list of required documentation and submit an application. The package of documents, together with the application, is submitted for consideration to the employees of the territorial department of Rosreestr at the location of the real estate. At the same time, a state duty in the amount of two thousand rubles is levied from individuals, and from legal entities in the amount of 22 thousand rubles.

When applying to different branches of Rosreestr to register an exchange agreement (when real estate is located in different areas), one of the authorities must notify the other about the receipt of documents for registering property rights. After considering the acts and making a decision on the registration of the exchange agreement within five days, employees of one department of Rosreestr must notify the employees of another. In case of refusal to carry out state registration, an appropriate message is sent. If a positive decision is made, at the end of the process, the participants in the transaction receive a certificate of ownership of real estate.

Required documents

Since the real estate exchange agreement is subject to state registration with Rosreestr, before contacting the designated institution, a package of necessary documentation should be prepared.

List of documents for registration of a real estate exchange agreement:

Properly executed application, number - two copies (from each of the participants in the civil - legal agreement);
Exchange agreement in the amount of three copies;
Individuals provide a passport, and legal entities a constituent act, a document confirming registration as a taxpayer and an extract from the Unified State Register of Legal Entities;
A check certifying the fact of payment of the state duty;
Cadastral passport of real estate;
Power of Attorney, if the interests of one of the parties are represented by a chargé d'affaires;
A document certifying the existence of ownership rights to real estate;
The act of acceptance and transfer to the exchange agreement;
Written consent of the guardianship and guardianship authorities for the exchange of housing or part of it, in which a person who has not reached the age of majority lives;
Written consent of the other owners, if the object of the exchange agreement also belongs to third parties.

Is it taxable?

When signing a contract for the exchange of real estate, within the framework of one transaction, two are carried out at once, since the sale and acquisition of property take place simultaneously. Based on this, similar tax conditions apply to this agreement, as well as to the purchase and sale agreement.

Features of taxation:

Exchanged items of equal value are not taxed;
In case of unequal value of the objects of the agreement, a tax fee of 13 percent of the income received by one of the parties for the sale of real estate is levied;
Only those owners who owned the subject of the transaction for less than three years from the date of acquisition (regardless of the basis for acquiring property rights - purchase, gift, inheritance) have the obligation to pay personal income tax;
If the owner has owned the immovable property for more than three years, he has the opportunity to exercise the right to receive a tax deduction against the tax that must be paid by the person.

It is important to note that the concealment of the true surcharge or the amount of real estate transferred under an exchange agreement entails liability. Therefore, when entering information into the content of the agreement, it is advisable to indicate the exact amounts.

in a person acting on the basis of , hereinafter referred to as " I participant”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ II participant”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. The I participant undertakes to transfer in the order of exchange to the II participant: ;

unit ;
number of units ;

1.2. The II participant undertakes to transfer in the order of exchange to the I participant: ;

unit ;
number of units ;
warranty period of operation (storage, shelf life).

1.3. The parties acquire the right of ownership to the goods specified in clauses 1.1 and 1.2 after the mutual transfer of goods.

2. EVALUATION OF THE GOODS COST

2.1. The total cost of goods of the 1st participant in rubles.

2.2. The total cost of the goods of the second participant in rubles.

2.3. The assessment of each product separately is determined in Appendix No.

3. TERMS OF DELIVERY OF THE GOODS TO THE PARTICIPANT

3.1. The goods are delivered days from the date of conclusion of the contract.

3.2. Goods are being shipped.

3.3. The goods are delivered in containers and packaging that meet the standards and specifications.

4. TERMS OF DELIVERY OF THE GOODS TO THE PARTICIPANT II

4.1. The goods are delivered days from the date of conclusion of the contract.

4.2. Goods are being shipped.

4.3. The goods are delivered in containers and packaging that meet the standards and specifications.

5. RESPONSIBILITIES OF THE PARTIES

5.1. For violation of the deadlines for the transfer of property, the guilty party compensates the other party for direct losses in full and pays a fine in the amount of rubles.

5.2. For incomplete transfer of property, the guilty party shall pay to the other party a penalty in the amount of % of the value of the property not transferred for each day of delay.

5.3. For the transfer of property that does not meet the terms of the contract in quality, as well as for the transfer of incomplete property, the guilty party pays a fine in the amount of rubles.

6. ADDITIONAL TERMS

6.1. Additional terms under this agreement: .

6.2. In all other respects not provided for by this agreement, the parties are guided by the current civil legislation of Russia governing the supply of goods.

7. FINAL CONDITIONS

7.1. All changes, additions to this agreement are valid only if they are made in writing and signed by both parties.

7.2. The headings of the articles are for ease of reference and will not be taken into account in interpreting this treaty.

7.3. This contract expresses all contractual terms and understandings between the parties with respect to all matters mentioned herein, and all previous discussions, promises, representations between the parties, if any, shall be null and void and superseded by the above text.