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Review of real estate bills

25 сентября 2020

Bill No 962484-7

Bill No. 962484-7, introduced to the State Duma by the Government of the Russian Federation in May 2020, is dedicated to changes in the field of state registration of real estate. In accordance with the bill, it is planned to speed up the state registration of contracts for participation in shared construction, to simplify the submission of a number of electronic applications. At the level of the law, the controversial issue of state registration of the lease agreement for a part of the building will be resolved.

The main innovations of the Draft Law:

1. According to the bill, when concluding transactions with state and municipal authorities, an enhanced qualified electronic signature (ESCE) will no longer be required. Through the personal account https://lk.rosreestr.ru/ on the Rosreestr website, it will be possible to submit, in particular, the following applications without certifying them with a strengthened qualified electronic signature:

· On cadastral registration due to changes in the basic information of the property;

· On entering into the USRN information about a previously registered object;

· To correct a technical error in the USRN.

2. The draft law provides for norms that allow interaction with Rosreestr through portals of state and municipal services of the constituent entities of the Russian Federation, which will make it possible to fully use the "digital" potential of the regions.

3. The draft law provides for a reduction in the time frame for registration of equity participation agreements (DAC). After the law comes into force, the terms of registration of the first preschool educational institution will remain the same, and the subsequent ones will be reduced by two days. According to the project, Rosreestr must register a DDU within 5 working days from the date of receipt of the application. We are talking about contracts concluded by the developer with the second and subsequent equity holders for a specific property. If the application and the necessary documents are submitted in electronic form, then the contract will be registered 3 working days following the day of receipt of the documents. If they are submitted through the MFC, then the period for state registration will be 7 working days from the date of receipt of these documents.

Now the term for state registration of a preschool institution, concluded with both the first and subsequent equity holders, is limited to 7 working days from the date of receipt of documents. When they are submitted to the MFC, the deadline is 9 working days.

4. The document stipulates a reduction in the time frame for state registration of contracts for participation in the shared construction of an apartment building and (or) other real estate object. Also, according to the bill, a period of 3 days is set for state registrars, when they will be required to consider additionally submitted documents to remove the suspension of state registration and (or) state registration. In addition, the registrar will be obliged to register the right within 3 days by virtue of a court decision. Previously, the applicant himself had to submit an application and pay the state fee.

5. The bill provides for a ban on the resale of USRN information, including through twin sites, since the market for such resale violates the rights of citizens and contradicts the interests of the state. This will protect citizens from providing false information about registered rights to real estate, rightholders, restrictions (encumbrances).

6. The possibility of carrying out state registration of a lease agreement for a part of a building or structure without submitting a technical plan for a part of such a building or structure is also prescribed. We are talking about the case if the USRN has information about all the premises in this building or structure.

7. The bill also expands the list of applicants who can apply for services in the field of state cadastral registration and state registration of rights. Now, for example, the heir will be able to immediately apply for deregistration of the already demolished garden house without registration of ownership. Thus, a legal gap has been closed in relation to real estate objects that have ceased to exist, but information about them is contained in the USRN.

Thus, bill No. 962484-7 provides for the acceleration of state registration of contracts for participation in shared construction (DDU), simplification of the submission of a number of electronic applications, resolution of a controversial issue about the possibility of state registration of a lease agreement for a part of a building, etc.

Bill No 835938-7

Bill No. 835938-7, introduced to the State Duma of the Federal Assembly of the Russian Federation in November 2019, provides for major changes in the legal regime of property relations between spouses.

The main innovations of the Draft Law:

1. The draft law provides that, in addition to state registration of the right to joint ownership of real estate at the request of one of the co-owners (with the exception of the former spouse), the entry into the Register of information about both participants in joint ownership should also be carried out in the absence of such an application, namely, on the basis of data that the state registrar will be required to request in the Unified State Register of the Civil Registry Office. In other words, common joint ownership should be registered by default. Such a change in the procedure for maintaining the Register will reduce the legal and economic risks for a bona fide purchaser associated with the procedure for maintaining the USRN. Ensuring the publicity of the USRN data in terms of indicating marital status will eliminate most of the problems in terms of real estate. If both spouses act as full-fledged co-owners according to the registry data, they will also become a party to the transaction in the alienation of property, and the question of the need to obtain the consent of the other spouse will be automatically removed.

2. In addition, a clarification is introduced into Art. 34 of the RF IC that all property acquired during the marriage is a common joint property, regardless of what funds it was purchased with. If spouses want to deviate from this general rule, they will need to conclude a marriage contract. Thus, the rule is excluded that objects, the rights to which one of the spouses acquired during the marriage at the expense of personal funds, do not belong to the common property of the spouses.

3. The draft law also proposes to point out the inadmissibility of splitting up objects, the division of which into parts between spouses is impossible or will entail a disproportionate decrease in value (indivisible things, complex things, the right to participate in an economic society in the amount of at least 10% of the authorized capital, etc.). The rights to objects will be recognized by the court as belonging to one of the spouses at the expense of the value of his share in the common property. If the value of such property exceeds the value of the spouse's share, then monetary compensation will be charged in favor of the other spouse.

The need for this proposal is due to the fact that at present, when dividing common property, which consists of so-called business assets, there are consequences - their total value sharply decreases. For example, if a 60% stake in a company is divided in half (30% for a husband and 30% for a wife), then this dramatically changes the structure of corporate control, creates risks of instability of intracorporate relations, which, as a rule, entails a fall in the share price.

4. It is also proposed to stipulate that common property is the aggregate of all "assets" and "liabilities" acquired by spouses in marriage. It will be viewed as an integral property complex (including things, property rights and common debts of spouses), and not a set of separate objects (so-called "assets").

5. The general obligations of spouses ("liabilities") are proposed to include those that arose during marriage as a result of the conclusion of a contract or as a result of unjust enrichment. Exceptions - if the court establishes that the obligation arose during the period of separation of the spouses upon termination of family relations or that the obligation received by one of the spouses was not used for the needs of the family.

6. The draft law specifies the procedure for the division of property: first, the share of each of the spouses is determined (by agreement or judicial act), and then - the property attributable to this share. The share regime will also apply to those objects that the plaintiff did not include in the division of property.

7. Under the bill, the alienation of common property without the consent of the other spouse may lead to a decrease in the size of the share in the common property owed to the alienating spouse. In addition, a spouse (ex-spouse) who did not know about the acquisition of some property during marriage by the other spouse will be able to protect his interests even after the divorce.

Currently, each spouse can dispose of common property by concluding deals with third parties. At the same time, the other spouse often cannot protect his interests, since these transactions can be challenged by him only in case of proven bad faith of a third party. This problem is effectively addressed in the bill.

8. Such changes will make it possible to clarify the property relations of spouses and third parties, to avoid, in the event of a divorce, multiple court disputes over the division of the property of the same spouses and at the same time to clearly define which property belongs to each of them, what property each of them should be responsible for. former spouses according to their obligations and what property is inherited after death.

9. The bill changes the rules of bankruptcy: spouses can go bankrupt together, and if one of them goes bankrupt, the sale of property will become possible only after the division of common property. It is envisaged that the bankruptcy administrator, creditors or the second spouse apply for division, following which the share of the bankrupt spouse will already be allocated for implementation in the bankruptcy case. At the same time, such an application will be considered within the framework of a bankruptcy case. This mechanism is envisaged for the foreclosure of common property for personal debts; for common debts, the bill provides for joint bankruptcy of spouses.

10. Amendments to prenuptial agreements are envisaged in order to eliminate a broad interpretation of the possibility of invalidating a prenuptial agreement, thus ensuring the principle of “contracts must be respected”. Now almost most of the marriage contracts can be invalidated as putting one of the spouses in an extremely disadvantageous position.

Thus, bill No. 835938-7 solves a number of important tasks, such as: strengthening the structure of a marriage contract, determining the procedure for dividing spouses 'property in kind and replacing property with monetary compensation, establishing the integrity of the spouses' common property, and the possibility of joint bankruptcy of spouses.

Bill No 933979-7

The bill, introduced to the State Duma on 03/31/2020 by the Government of the Russian Federation, proposes to empower the executive authorities and local governments with powers to identify real estate owners and forcibly enter information about them in the USRN.

The main innovations of the Draft Law:

1. The draft law proposes to provide for a procedure for identifying the rightholders of previously registered real estate objects, the title documents for which were drawn up before the entry into force of Federal Law No. 122-FZ, and the rights to which are not registered in the USRN. For these purposes, the procedure for identifying the rightholders of such real estate objects and entering information about them and (or) the corresponding real estate objects in the USRN is determined.

The projected article 12.1 provides that the executive authorities of cities of federal significance, as well as local self-government bodies have the right to carry out measures on their territory to identify the rightholders of previously registered real estate objects (for example, analysis of information contained in documents held in archives and (or) in at the disposal of authorized bodies; sending requests to authorized bodies, notaries, as well as to organizations that, prior to the entry into force of Federal Law N 122-FZ, were recording and registering rights to real estate objects).

2. The draft law assumes that the draft decision on identifying the copyright holder of a previously registered real estate object is posted on the Internet and sent to the identified copyright holder at the registration address at the place of residence (for an individual) or at the location of the legal entity.

According to the explanatory note, the proposed novels are aimed at entering relevant information into the USRN. In addition, the bill is designed to help solve the problem of involving previously registered land plots and capital construction projects in tax circulation.

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