Maternity capital obligation: cost, sample, allocation of share

When using maternity capital to purchase or build housing, a mandatory condition is the allocation of shares in this property for all family members .

However, it is often impossible to do this immediately after concluding a transaction; in such cases, the Pension Fund (PFR) requires the provision of a notarized obligation to allocate common property to children and (or) spouse.

The cost of notary services may vary depending on the region, usually charging a fee in the range from 500 to 1500 rubles .

The total period for fulfilling the obligation for maternity capital is 6 months . However, it begins to be calculated from the moment a certain condition specified in the document occurs, for example:

• removal of encumbrances from real estate (mortgage, loan);
• making a full contribution to the housing cooperative;
• completion of construction or reconstruction of a house - putting the house into operation or obtaining a cadastral passport for it.

Although the law does not establish liability for failure to fulfill an obligation, if this fact is discovered, the violator may be forced to allocate shares to family members forcibly or to recover the amount of damage caused to the state (in the case of resale of such real estate).

When is the commitment made?

A written obligation to allocate shares in housing that was purchased or built with maternity capital funds is required when:

1. The property is not registered as shared ownership of parents and children.
2. Property ownership was not registered at the time of applying to the Pension Fund for disposal.

In practice, citizens find themselves in situations where:

• The property right has already been registered in the name of the spouses or one of them (without children).
• There is an encumbrance (mortgage) on the property, and the children are not the owners.
• The housing has not yet been built or put into operation.
• The recipient of the certificate or his spouse is a member of a housing cooperative. Then the property can be registered only after all fees have been paid.
• The construction or reconstruction of a private house has not yet been completed.

The document does not need to be drawn up if, according to the contract for the purchase of housing, both spouses and children are buyers. In this case, ownership will be established in Rosreestr immediately after the transaction.

It is necessary to understand that an obligation drawn up by the applicant independently, without the participation of a notary, will not be accepted by the Pension Fund, as it has no legal force.

Cost of maternity capital obligation at the notary

The obligation to allocate shares can only be formalized by a notary or a person vested with such powers by law. According to paragraph 6 of Art. 333.

24 of the Tax Code of the Russian Federation, the cost of the service for certifying transactions, the subject of which is not subject to assessment, is 500 rubles .

However, the notary fee may vary depending on the region; the average cost of an obligation ranges from 500 to 1500 rubles .

To formalize the obligation, the property owner must contact a notary with a package of required documents. All persons giving the obligation must be present during the preparation. They may be:

• recipient of the certificate;
• his husband;
• both spouses, if they together act as buyers, co-borrowers on a mortgage or participants in a shared construction agreement.

When preparing the document, all circumstances of the purchase or construction of housing will be taken into account.

What documents are needed?

To enter into an obligation to allocate shares to the spouse and children in housing purchased or built using maternal (family) capital (MSC), the following documents :

• Passports of both spouses.
• Birth or adoption certificates for all children.
• Marriage certificate.
• Certificate for maternal capital.
• Title documents for real estate (purchase and sale agreement, DDU, extract from the register of a housing cooperative on membership in it, etc.).
• Certificate of state registration of ownership of housing and land (if necessary for the disposal of capital funds) - an extract from the Unified State Register of Real Estate or a certificate of the amount of the unpaid balance under the contract.
• Loan agreement and mortgage agreement (if any).

Instead of originals of the listed documents, it is allowed to provide copies, with the exception of a passport.

Obligation to allocate a share of maternity capital sample

The Federal Law on Maternity Capital does not establish requirements for formalizing the obligation to allocate common property to the spouse and children. In addition, territorial bodies of the Pension Fund sometimes impose their own requirements for the document.

Spouses can independently draw up a share obligation and then contact a notary office to have it certified. However, the notary may refuse to certify such a document, so it would be more advisable to immediately draw up an obligation with the notary.

The obligation must include the following information:

• Full name of the recipient of the certificate and his spouse (if he also undertakes the obligation to allocate a share).
• Passport details.
• Series and number of the certificate for MSK, date of issue.
• Name of the Pension Fund of Russia body that issued the certificate.
• Details of the purchase and sale agreement (credit, equity participation, etc.).
• Address of the purchased property.
• The condition after the occurrence of which the period for fulfilling the obligation begins to be calculated.
• The obligation to provide the Pension Fund with a copy of the property registration certificate (extract from the Unified State Register of Real Estate).
• A notary's note confirming the legal capacity of the person taking on the obligation.
• The number of copies compiled and the names of the places where they are stored (you must indicate the address of the notary).
• Signature of the person taking the obligation and the notary.
• Date of document certification, amount of fee.

Below are examples of obligations to allocate shared ownership:

1. Sample obligation when purchasing a home under a sales contract
2. Sample obligation to repay a mortgage
3. Sample commitment when purchasing real estate in installments
4. Sample obligation for the construction or reconstruction of a house

Liability for failure to fulfill an obligation

To date, the law does not provide for criminal, administrative or civil liability for failure to fulfill the obligation to allocate shares to the spouse and children in housing purchased for MSK.

Also, not a single legislative act specifies which body carries out verification of the fulfillment of the terms of the obligation. In practice, this is done by the prosecutor’s office - at the request of citizens or during a scheduled inspection (at the initiative of the Pension Fund).

In this regard, many citizens do not register real estate as the common property of all family members.

It is necessary to understand that persons who have not allocated shares to children and spouses violate the requirement of Federal Law No. 256-FZ of December 29, 2006 on maternity capital.

If a failure to fulfill an obligation is detected, the violator may be required to:

• If there has been no resale of such housing, compulsory granting of ownership rights to family members
• If such housing was sold, pay the amount of damage caused to the state. Such a transaction may be declared voidable and invalid, and the citizen may be found guilty of criminal inaction.

Any interested party can file a claim demanding that the transaction be invalidated: the Pension Fund of the Russian Federation, the guardianship and trusteeship authorities, children who have not received their shares, the prosecutor.

Source: https://materinskij-kapital.ru/use/uluchshenie-zhilishchnyh-uslovij/vydelenie-doli/obyazatelstvo/

Obligation to allocate a share of maternity capital

In situations where it is not possible to register housing for all family members in accordance with the law on maternity capital immediately before the transfer of state support funds from the Pension Fund (PFR) budget, a guarantee of the allocation of property shares to children (wife or husband) is a written obligation taken on yourself as the buyer (parent - title owner) of the residential premises.

The obligation to allocate shares is a document certified by a notary or another person with a similar right, on the registration of property rights of family members of the certificate holder (including minor children) to residential premises acquired using maternity capital funds.

The obligation is provided to the Pension Fund of Russia when submitting an application for the disposal of MK funds to improve housing conditions. It contains information that the owner of the property (the certificate holder and/or her spouse) undertakes the obligation in the future to register the residential premises as the common shared property of the entire family.

When is it necessary to draw up a written commitment for maternal capital?

According to the “Rules for the use of maternity capital to improve housing conditions”, approved by Government Decree No. 862 of December 12, 2007, a written commitment is required in cases where:

• at the time of applying to the Pension Fund for disposal, the residential premises are not registered as the common property of the certificate owner and his family members (spouse, children);
• ownership of residential premises has not been registered in accordance with the procedure established by law.

That is, drawing up an obligation is necessary when

1. Housing is not registered as common property the certificate holder, his spouse and/or children, namely:
   • according to the contract, the acquirer (owner) is one or both parents (children are not included in the contract);
   • the housing belongs to the owner of the certificate (spouse), but is pledged (mortgage) and shares can be allocated only after the encumbrance is removed.
2. Registration of ownership of residential premises not carried out at the time of transaction:
   • an agreement with installment payment has been concluded with the condition that the right to be registered after payment of the last installment;
   • participation in shared-equity housing construction - ownership is registered after the multi-apartment residential building is put into operation;
   • participation in a housing, housing-construction or savings cooperative (ZhK, ZhSK, ZhNK) - state registration takes place after all contributions have been made;
   • construction of a private house (individual housing construction project) or its reconstruction - ownership is registered after the house is put into operation (receipt of a cadastral passport for individual homeownership).

Notarial obligation to allocate shares in maternity capital

Within the framework of the Rules approved by the Government, the obligation to allocate shares to the spouse and children in residential premises acquired using maternal capital funds can only be formalized by a notary or a person authorized by law to do so. The original of the obligation remains with the Pension Fund of Russia, and a copy is transferred to the holder of the certificate (the person who gave the obligation).

A simple written form of obligation drawn up without the participation of a notary has no legal force and is not accepted .

The obligation is given by the person who has the right of ownership of the residential premises. It could be:

• certificate owner;
• spouse;
• both spouses, if the two of them are buyers (purchasers) of housing or co-borrowers on a mortgage.

including adults , should be allocated shares under the obligation .

Parents must sign the pledge together in cases where they are:

• co-borrowers on a mortgage loan;
• parties to the agreement (buyers, participants under the contract, etc.).

What documents are needed to register an obligation with a notary?

To draw up a document containing a person’s obligation to allocate shares in a residential property purchased using maternal capital funds, the following documents (copies are possible, with the exception of a passport):

1. Passport of the certificate holder and/or her husband.
2. Birth certificates for all children.
3. Documents on the adoption of a child (children).
4. Marriage registration certificate.
5. Maternity capital certificate.
6. Title documents for residential premises (purchase and sale agreement, residential building agreement, land agreement for the construction of individual housing construction, extract from the register for cooperative members, etc.).
7. Certificate of state registration of ownership of residential premises and/or land (from January 1, 2017 - extract from the Unified State Register of Real Estate EGRN).
8. Loan agreement and mortgage agreement (if any).

Sample obligation to allocate a share of maternity capital

The text (content) of the maternity capital obligation depends on the method of purchasing housing:

• ownership of the residential premises is registered in the name of the husband and/or wife;
• repayment of a loan or loan (with or without mortgage encumbrance);
• acquisition of ready-made housing, shared construction of an apartment building or construction (reconstruction) of a private residential building (individual housing construction project).

do not contain requirements for formalizing the obligation . In different regions, Pension Fund authorities may have their own requirements for the content of the obligation, so it makes sense to first clarify its form with the Pension Fund.

https://www.youtube.com/watch?v=Nl9UDFPMsvc

Below are sample examples of obligations to allocate a share of maternity capital:

1. When purchasing a home by the owner of the certificate under a sales contract :
2. When repaying principal and interest on a mortgage (home loan or loan):
3. When purchasing housing in installments provided by an individual or legal entity:
4. When receiving maternity capital for the construction of a residential building (or its reconstruction):

Of course, spouses can draw up an obligation form themselves and then go to a notary with it. But this is hardly advisable, since the notary may simply refuse to certify such a document. And even if he does agree to the registration, he will still have to pay the notary fee ( 500 rubles according to Article 333.24 of the Tax Code of the Russian Federation).

Be that as it may, the following information is indicated in all types of obligations :

1. Full name of the person (persons) taking on the obligation, indicating passport details;
2. Maternity capital certificate data (series, number, date of issue);
3. Name of the Pension Fund of Russia body that issued the certificate;
4. Purposes of using maternal capital funds (payment of the cost under the contract, loan repayment, construction of individual housing construction, preschool building, contribution to the cooperative);
5. Details of the agreement (credit, mortgage, purchase and sale, equity participation, etc.);
6. Description of the residential premises indicating the address of its location;
7. The obligation to register the residential premises as the common property of all family members by agreement, determining the size of each person’s shares, indicating the transfer period and conditions (removal of encumbrance, putting into operation, obtaining a cadastral passport for a residential building, etc.);
8. An obligation to subsequently transfer copies of state registration certificates of common property rights (from 2017 - extracts from the Unified State Register of Real Estate) to the Pension Fund of Russia;
9. Notary's note confirming the identity and legal capacity of the person(s) giving the obligation;
10. An indication of the number of copies of the document and the location of their storage (transfer);
11. Signature indicating full name;
12. Information about certification of a document by a notary;
13. Date, notary stamp, amount of payment according to the tariff.

Fulfilling the obligation for maternity capital

The Rules state that the person who signed the obligation must register the residential premises as the common property of all family members within 6 months after the Pension Fund transfers MSC funds to the seller of the housing, and in the case of purchase with installment payment - within 6 months after making the last payment under the contract.

But, between the date of drawing up the obligation for maternity capital and its fulfillment, quite a long time may pass - perhaps many years (loan repayment, construction of a house, apartment, etc.), despite the fact that it indicates a six-month period.

Therefore, the obligation usually contains a condition upon the occurrence of which this period begins to be calculated. The following main conditions can be distinguished :

• removal of encumbrance (mortgage, pledge);
• making a share contribution to the housing cooperative in full;
• putting the house into operation after construction (reconstruction) and/or obtaining a cadastral passport.

Liability for failure to execute a notarized document

Despite the fact that the obligation is a necessary document for receiving state subsidies and is certified by a notary, that is, the document is “weighty” and indisputable, but so far there are no rules providing for liability (criminal, administrative, civil) for failure to fulfill its conditions, on does not exist in law today .

In addition, there is not a single legislative act establishing a body that should control this process. As is known, there is no connection between the Pension Fund of the Russian Federation, where obligations are stored, the guardianship and trusteeship authorities and Rosreestr for tracking transactions with such real estate.

However, by not allocating shares to children and/or spouse, the person obligated to do so violates the provisions of Law No. 256-FZ.

And in cases where facts of non-fulfillment of obligations to allocate shares are revealed, the information can be transferred to law enforcement agencies.

The prosecutor's office, as the body supervising the implementation of laws, has the right to file a claim with the court, which will oblige the fulfillment of the obligation or independently allocate shares to all family members, including minor children.

If residential premises acquired using the MK were sold without allocating shares in it, then this transaction may be declared invalid . Any interested person has the right to file a claim with such demands - the Pension Fund of the Russian Federation, the guardianship and trusteeship authority, children who have reached the age of majority, the prosecutor.

In such situations, the court applies the consequences of the invalidity of the transaction, and as a general rule, the court:

• obliges the parties to return everything received under the transaction (to the buyer - money, and to the seller - real estate);
• will impose an obligation on the seller to allocate shares in the residential premises returned to him to all members of his family.

The only possible chance to avoid the negative consequences of failure to fulfill an obligation when selling housing purchased for MSK is to purchase another residential premises with an area equal to or larger than the previous one and distribute shares in it to all family members.

Source: http://pro-materinskiy-kapital.ru/ispolzovanie/uluchshenie-zhilischnyx-usloviy/vydelenie-doli-detyam/notarialnoe-obyazatelstvo/

Notarial obligation to allocate shares to children in maternity capital in 2020

Home / Housing disputes / Obligation to allocate a share of maternity capital to children

Views 724

Using maternity capital funds makes it easier for large families to purchase housing. Government subsidies go towards paying the first installment on a mortgage, building a new house, joining a housing cooperative and other cooperatives. However, in order to dispose of maternal capital, you need to allocate shares to the children and the second spouse.

Very often such allocation is postponed indefinitely. For example, if the spouses are just starting to build a house or have not yet paid off the mortgage. Federal Law No. 256 allows for deferment of the allocation of shares to children, but the spouses will be required to provide a notarial undertaking.

What is it and where can I apply for it? You will learn about this and more from our article.

What is a commitment?

Let's understand the concepts:

Maternity capital (MC) is financial support from the state under the Assistance Program for Large Families. Immediately after the birth of their second child, parents are entitled to a lump sum payment - maternity capital. The subsidy will not be allocated if the spouses do not provide reports on planned expenses.

The obligation to allocate shares to children in maternal capital is a document certified by a notary, which confirms the spouse’s intentions to allocate shares in the apartment to the children and husband (wife). Often the obligation is drawn up on behalf of one of the spouses - the owner of the certificate for receiving MK or the owner of the property.

When is a written commitment required?

Having defined the concept of “commitment”, it’s time to find out when it should be drawn up?

According to PP No. 862 of December 12, 2007, a written undertaking is required if:

• the property does not belong to the family on the right of common shared ownership;
• neither the mother nor the father of the child registered ownership with the Rosreestr authority - there is no certificate or extract from the Unified State Register of Real Estate;
• both parents own the home, but the children have not yet received a share;
• mortgage payments – the encumbrance prevents the immediate allocation of shares to family members;
• unpaid share contribution to housing cooperatives, housing cooperatives and other types of cooperatives;
• The couple began construction of a private house, but have not yet put it into operation.

For more information about what purposes and how you can spend maternity capital, read the article “How to use maternity capital to improve your living conditions.”

Deadlines

A standard sample obligation has a clearly defined deadline. Considering that housing situations are different, the period is also not the same.

The responsible spouse is given 6 months to fulfill the promise - to allocate shares to the children + the second spouse.

Conditions for starting the execution deadline:

• repayment of the mortgage payment - with maternity capital funds;
• settlement with the seller of real estate - for example, by renting a safe deposit box;
• completion of installment payment;
• signing the acceptance certificate of the object - construction under the DDU agreement;
• final commissioning of the house (by the contractor);
• obtaining an extract from the Unified State Register of Real Estate with cadastral data - when building a house yourself;
• other conditions.

As you can see, the law sets a very specific deadline for execution. However, the condition that triggers the countdown is taken into account. It is the condition that should be relied upon when determining the deadlines.

Let's move on to analyzing the instructions for drawing up a notarial obligation.

Procedure

The sequence of steps is not particularly difficult. Most of the work is performed by a notary - a specialist who must certify the obligation with his seal.

How to make a commitment in 2020:

1. Understand the conditions (see above).
2. Find a notary office, find out about the reception schedule for the population.
3. Visit a notary with a package of documents.
4. Pay the state fee (see below).
5. Draw up the text of an obligation to allocate a share to children.
6. The responsible notary affixes the signature and seal.

Having finished drawing up the obligation, the spouse hands it over to the Pension Fund employee responsible for issuing financial assistance. The original document will remain with the Pension Fund, and the spouse will receive a copy. This is followed by the transfer of maternity capital funds to cover housing costs.

Where to contact?

Certification of the obligation to allocate a share to children in a notary’s office is the main requirement for drawing up a document.

According to the general rules, spouses can contact a notary:

• at your place of residence - the nearest branch;
• at the place of stay.

Be sure to check that the notary has a license. It is advisable to contact trusted companies that have been providing services for more than one year.

Required documents

Along with the obligation to allocate a share to the children, the responsible spouse provides the notary with:

• original husband's passport + copy of wife's passport (or vice versa);
• a copy of the marriage registration certificate;
• documents for children - birth certificates or their passports;
• original certificate for receiving maternity capital for the birth of a second child;
• title documents for residential premises - purchase and sale agreement, mortgage agreement, agreement to join the DDU, housing cooperative and other cooperatives;
• a copy of an extract from the Unified State Register or a certificate - if the housing has already been registered as the property of the parents;
• original receipt of payment of state duty.

The notary may ask for other documents, depending on the circumstances. Missing papers can be submitted on the same day. The notary requests individual documents independently - via an electronic database.

Price

Prices for the provision of notary services depend on the region of residence. The highest price is in Moscow and St. Petersburg, with costs decreasing as the distance from the center increases.

The state duty is (Article 333.24 of the Tax Code of the Russian Federation):

• 0.5% of the amount of maternity capital (calculation is carried out strictly according to the certificate) - not less than 300 rubles, but not more than 20,000 rubles;
• stamp and signature on the obligation - 500 rubles (average price - from 800 to 1,500 rubles).

In total, even if you draw up an obligation yourself, there is no escape from the costs. That is why, in order to avoid misunderstandings, it is best to draw up a document in the presence of a notary or contact a lawyer.

Sample obligation to allocate a share of maternal capital to children

Civil legislation does not provide clear requirements for the obligation to allocate children's shares. The only thing you should pay attention to is the text part of the document.

Contents of the obligation to allocate a share to children:

• personal data about the parties (full name of parents, children, passport and certificate data);
• name, number, information about the certificate for receiving maternity capital;
• information about the property - address, technical characteristics, type of encumbrance (mortgage, cooperative), form of ownership, etc.;
• note why the allocation of the share to children is postponed (for example, building a new house or paying off a mortgage loan);
• the text part of the obligation (begins with the word “I undertake...”);
• deadline for fulfillment of agreements;
• personal signature.

The final step is for the notary to affix his signature and seal. The approved document is ready for transfer to the Pension Fund to receive a state subsidy for housing.

How to compose?

The notarial document is drawn up in accordance with Art. 10 Federal Law No. 256 “On Additional...” dated December 29, 2006, as well as general provisions of civil procedural legislation.

Rules for registering an obligation:

1. A prerequisite is the presence of the applicant and the notary and/or the person acting as a notary.
2. The form of the obligation to allocate a share to children and husband is simple, written.
3. The document contains one or more obligations regarding the further distribution of shares. The applicant indicates when the deadline for fulfilling the obligation begins (for example, making the last installment payment).
4. The text of the obligation must be legible, without ambiguous interpretations, blots or errors. Black or blue paste is used, as well as a computer for typing.

Liability for failure to fulfill an obligation

Why does the original obligation remain in storage at the Pension Fund customer service? Representatives of the department reserve the right to check the intended use of maternal capital for current needs. If it turns out that the parents agreed to allocate shares to their children, but ended up decorating the apartment in their own way, they face liability.

There are two types of consequences for failure to fulfill an obligation:

• criminal punishment under Art. 159 of the Criminal Code of the Russian Federation “Fraud”;
• redistribution of shares with the obligatory allocation of the children's part.

Non-binding parents will be asked to correct the violation voluntarily. If they refuse or begin to delay the deadline, the Pension Fund of the Russian Federation goes to court for the forced allocation of the children’s share. It is possible that parents will face a fine, and in some cases a very real sentence (usually suspended).

Further fulfillment of the obligation falls on the shoulders of one or both spouses - they will have to allocate a share in the apartment in accordance with the provisions of the law.

There are two options:

• agreement between parents on allocating a share to children;
• deed of gift for one child or for several children.

Both methods have the right to life, but the choice of a particular one is at the discretion of the spouses. Below we will consider both options, and also dwell on real-life examples.

We recommend that you read the article “Allocation of shares to children when using maternity capital” - from it you will learn about all the nuances of the allocation, you will be able to calculate the state duty and learn about responsibility.

Step-by-step instruction

Let's start with a description of the agreement, which is drawn up with the consent of both parents.

By agreement

Having agreed on the shares of the children, the spouses can formalize the agreement. It is important not only to compose the text, but also to have the document certified by a notary. The notarial form will protect against possible problems with challenging the agreement by government agencies.

Contents of the agreement:

• indicate the type - on the allocation of a share to children based on maternity capital;
• personal data about the parties (full name, passport details of parents);
• information from an extract from the Unified State Register of Real Estate about the property (apartment, private household);
• what share in the apartment will each of the children receive;
• personal signatures with transcripts.

Example:

The Medvedev couple entered into a social mortgage. The first installment was repaid using maternity capital funds.

The Medvedevs drew up an obligation to allocate the share of the children, where they indicated that they would fulfill it immediately after paying off the mortgage loan. After some time, the mortgage was paid off and the encumbrances on the property were removed.

The Medvedevs again visited the notary and drew up an agreement to allocate a share to the children in the amount of ¼ per child.

By deed of gift

Since 2016, deeds of gift require mandatory notarization. We can say that the procedure is not much different from drawing up an agreement.

Spouses draw up a deed of gift taking into account the interests of the children. In addition to personal data, the donation agreement specifies the size of the shares.

We should not forget that spouses can give children only part of their shares . Donation is appropriate in cases where both parents already have a share in the apartment, but want to register shares for their children.

Example:

A family of three (father, mother and little son) bought a 2-room apartment on the secondary housing market. The deal was arranged as an installment plan. A few years later, a second child appeared in the family, and after 3 years the happy couple were able to obtain a certificate for maternity capital. The parents planned to pay the remaining amount for housing with the help of government subsidies.

Having assessed the situation, the head of the family drew up an obligation to allocate a share to the newborn. Immediately after settlements with the seller, the husband and wife visited the notary and issued a deed of gift - the new family member received the property portion from the previously allocated shares of the parents. His elder brother kept his share intact.

Thus, the parents' shares turned out to be smaller than the children's shares.

Documents, terms, cost

Confirmation of the allocation of shares occurs in the Rosreestr authority at the location of the apartment or private household. However, it is better to submit documents through the MFC, regardless of your location.

What documents will be needed:

• ID cards of parents and children (passports and certificates);
• statements in the prescribed form;
• a copy of the notarial agreement or deed of gift (at the choice of the applicants);
• information about the spouses' marriage;
• documents for the apartment or information about the removal of encumbrances (payment of a share in a cooperative, repayment of a mortgage, installment plans);
• receipt of payment of state duty.

The issuance of new documents on property rights (from 2016 - an extract from the Unified State Register of Real Estate) is considered a paid procedure - the cost is 2,000 rubles . Spouses can pay this amount in half.

Registration of documents usually takes from 14 to 30 working days , depending on the workload of the Rosreestr office. If you act through the MFC, the period will be extended somewhat.

Source: http://law-divorce.ru/obyazatelstvo-o-vydelenii-doli-detyam-po-materinskomu-kapitalu/

Notarial obligation to allocate shares to children in maternity capital in 2020

Home » Housing disputes » Obligation to allocate a share of maternity capital to children

1,718 views

Since 2002, at the birth of a second child, the state issues a maternal certificate, which can be used to pay a mortgage payment, to build or reconstruct a house, or to otherwise improve the family’s living conditions. The main condition for using MS to improve or purchase housing is to allocate a share in the housing to children.

But, often, it is impossible to immediately allocate a share, since there is nothing to allocate yet, for example, when building a house, a certificate of ownership cannot be obtained until it is put into operation. Or, if MS is used to pay the first mortgage installment, until the loan is repaid in full, the residential premises are pledged to the bank and the allocation of the share is also impossible.

In such cases, Federal Law No. 256 requires a notarial obligation to allocate shares to children based on maternity capital.

What is a commitment

A little about maternity capital and the obligation to allocate shares.

Maternity capital or certificate (MC) is financial assistance to families with two or more children, which is allocated at the birth of the second or subsequent (if MC was not allocated previously) children. But this assistance will not be provided unless parents indicate what exactly they plan to use MS for.

An obligation to allocate shares is a document that confirms the intention to allocate shares in a residential premises after the apartment or house can be registered as ownership.

Certification by a notary office is required.

The obligation is drawn up on behalf of the owner of the MC (usually the mother) or on behalf of the owner of the residential premises, which the parents plan to improve with the help of maternity capital.

When is a written commitment required?

As stated in Decree of the Government of the Russian Federation No. 862 of December 12, 2007, drawing up a written obligation to allocate shares will be required in cases where:

• the residential premises are not in common shared ownership;
• the apartment or house is owned by the parents, the children are not co-owners;
• the property has not been put into operation, that is, there is no certificate of ownership or an extract from the Unified State Register;
• the parents pay off the mortgage, in which case the encumbrance does not allow the children’s shares to be immediately allocated;
• the share contribution to the housing cooperative or other housing construction cooperative has not been fully paid.

That is, there are two groups of conditions under which it will be necessary to draw up an obligation:

1. Residential property registered as property, but allocating a child’s share is not yet possible:
   1. children are not included in the purchase and sale agreement and, according to the terms of the agreement, registration of property is postponed for some time, for example, until the funds for the purchased property are fully paid;
   2. the residential premises were previously registered in the name of the recipient of the certificate, but are pledged to a credit institution, that is, they have an encumbrance.
2. Ownership of real estate not issued:
   1. the purchase and sale agreement specifies an installment plan for payment for the property; registration of ownership under the terms of the agreement is carried out after full repayment of the debt;
   2. the family takes part in shared construction, in which case registration of ownership is possible only after the house is put into operation;
   3. a family is building a private house or reconstructing it, in this case ownership can be registered only after receiving cadastral documents.

The obligation to allocate a share will not be required only in the case when a family purchases residential premises, which are immediately registered as common shared ownership upon purchase, that is, the children’s shares are allocated when drawing up a purchase and sale agreement.

Every legal document must be properly executed. The obligation to allocate children's shares is no exception. If the order of execution and preparation of a document is not followed, it may be declared invalid.

Parents must follow a certain procedure:

1. Decide under which conditions they need to draw up an obligation.
2. Collect all necessary documents .
3. Pay the state fee .
4. Visit a notary .
5. Together with an employee of the notary office, draw up the text of the obligation .
6. Receive the document from the notary, check the presence of all signatures and seals.
7. Transfer the obligation to Pension Fund employees.

The original document remains at the local branch of the Pension Fund, and parents receive a copy in their hands. Further, after checking the correctness of the document, PF employees will transfer funds to the MS, which will be used to pay expenses according to the drawn up document.

The main requirement for the legality of a drawn up obligation is its certification by a notary office. Thus, it is necessary to contact a notary at the nearest office at the family’s place of residence or place of stay.

Before contacting a notary office, you need to check whether it has a license.

Required documents

To draw up an obligation and certify it at a notary’s office, spouses must have the following documents with them:

• original passport of one parent and a copy of the other;
• marriage certificate (copy);
• birth certificates or passports of all minor children;
• MS original;
• any title documents for residential premises (purchase and sale agreement, mortgage loan document, agreement with housing cooperative, etc.);
• if the residential premises are already owned by the mother or father, then an extract from the Unified State Register of Real Estate;
• receipt for payment of state duty.

Price

When drawing up an obligation, parents will incur some expenses, namely:

• payment of the state duty will be 0.5% of the amount of MS intended for use, but not less than 300 rubles and not more than 20 thousand rubles;
• payment for notary services (depending on the region, this amount varies from 500 to one and a half thousand rubles).

How to compose

The document must be drawn up in accordance with Art. 10 Federal Law No. 256 of December 20, 2006. Based on this law, the rules for drawing up and designing are as follows:

1. A prerequisite for drawing up a document is the presence of both parents and a notary.
2. The form of the document is written.
3. The text of the document must be spelling and legally correct, and must not contain blots or ambiguous interpretations.
4. The document must contain one or more specific obligations indicating the deadlines for the fulfillment of each.

Sample obligation to allocate a share to children in maternity capital

 

Sample obligation to allocate a share to children in maternity capital

There are no clear requirements for the text of the document, so in order to avoid mistakes, it is advisable to seek help from a notary. The contents of the document will depend on the method in which the residential property is acquired or improved:

• the apartment or house is already registered to the mother or father;
• The MS is supposed to be used to pay off the mortgage loan;
• the capital will be used for a contribution to shared construction, or for the reconstruction of a private house.

Approximate contents of the document:

1. Personal data of all parties to the agreement . It is necessary to indicate the full names of parents, all minor children, details of their passports and birth certificates.
2. MS name, number, other information . It will be necessary to indicate when it was issued, for the birth of which child, and when it was born.
3. Information about the property . The address, main technical characteristics, form of ownership, type and period of encumbrance are indicated here.
4. Indication of the reason for postponing the allocation of the child's share.
5. Direct commitment . It should begin with the words “I undertake...”.
6. Contract execution period . It is possible to indicate a specific date, or, if the exact date is unknown, then the occurrence of some event is indicated, for example, “after the repayment of the mortgage loan, but no later than ...”.
7. Date of document preparation and personal signature of the MS owner.

Deadlines

The responsible spouse must fulfill the obligation, usually this is the one from the married couple to whom the MS was issued. The legislation gives six months to fulfill the terms of the agreement on the allocation of children's shares, while the conditions for starting to calculate the execution period are:

• full repayment of the mortgage loan using MS;
• the last payment under the purchase and sale agreement in case of installment payment;
• signing a transfer and acceptance certificate for a residential property;
• if a family is building a new house - obtaining an extract from the Unified State Register of Real Estate .

The fulfillment of each of these conditions will take a different period of time, so no strict deadlines for fulfilling the terms of the contract can be established. But after the conditions for its fulfillment have occurred, parents are given a strict period of time - 6 months to complete all documents and allocate the children's share.

Currently, there is not a single legislative act that would establish a body that controls the process of fulfilling the obligation. Also, the legislation does not stipulate what responsibility parents will bear for failure to fulfill the terms of the agreement.

Some parents, taking advantage of the imperfections of Russian legislation, take advantage of these “loopholes in the laws” and are in no hurry to transfer part of the living space to the ownership of their minor children. Some citizens generally try to subsequently dispose of their residential premises in circumvention of the law, for example, to sell an apartment without involving PLO employees.

However, such parents violate the provisions of Federal Law No. 256 and, if a violation has been identified, information about this is transmitted to law enforcement agencies.

In this case, the prosecutor's office has the right to independently file a claim for the fulfillment of the obligation in court, which, in turn, will decide on the execution of the contract, or directly at the court hearing will allocate shares to each of the family members independently.

If a house or apartment purchased or improved using MS, in which children's shares were not allocated, was subsequently sold, then the sale and purchase transaction is considered invalid. In this case, the following may apply to the court for recognition of the illegality of the sale of real estate:

• Pension Fund;
• prosecutor's office;
• child protection;
• children who have become adults.

In such situations, the court may:

1. Oblige the parties to mutually return everything received as a result of the transaction. The purchase and sale agreement is declared invalid, the seller returns the money to the buyer, and the buyer returns the property to the seller.
2. Make the seller responsible for allocating shares in the returned apartment to all family members.

 How to allocate a share in an apartment under an obligation

After the obligation to allocate the children's share is signed and certified by a notary, the parents must begin to execute the agreement. There are two options for completing the document:

• drawing up an agreement between mother and father on the allocation of the children's share;
• registration of deed of gift for minors.

The choice of option rests with the parents. Let's look at each of them in more detail.

By agreement

So, the parents chose to allocate a share by agreement. In this case, they must draw up a document in which they describe the procedure for allocating the child’s share and other important information. A notarized document guarantees its implementation and will protect the mother and father from challenging the document by the prosecutor’s office and the PLO.

Approximate contents of the agreement on the allocation of children's shares:

1. Indication of the type of agreement . This will be the title of the document: “Agreement on the allocation to children of a share in the ownership of residential premises acquired (improved) with the help of MS.”
2. Personal information of signatories . The full names of the mother and father, as well as their passport details, are indicated here.
3. Information about the property according to an extract from the Unified State Register of Real Estate.
4. An indication of what share in the property each child will receive.
5. Signatures of each spouse with transcript.

Example

The Novikov couple had a second baby, and they decided to improve their living conditions. They sold their two-room apartment, and used the proceeds from its sale to pay the down payment on a mortgage loan taken out to purchase a three-room apartment. To further repay the mortgage, they decided to use MS funds.

The Novikovs drew up an obligation to allocate children's shares, where they indicated that they undertake to fulfill the agreement immediately after the full repayment of the mortgage loan. After some time, when the loan was fully repaid and the encumbrance on the three-room apartment was lifted, they drew up an agreement to allocate children's shares in the amount of a quarter for each child.

By deed of gift

The procedure is almost no different from allocation by agreement. The spouses visit a notary's office, where they draw up deeds of gift for each child, which will indicate the share of each child.

Example

The Zakuraev family bought a two-room apartment when they were expecting twins. The purchase and sale agreement was drawn up in such a way that they had to pay part of the money for the apartment after the children were born and the MS was received.

After the birth of the babies and receipt of the MS, the parents fully paid the seller and issued a deed of gift: each of the children received 1/3 of the apartment, the parents were left with a third of the apartment for two, that is, 1/6 of the living space.

In order to confirm children's shares, you must contact Rosreestr or the MFC. The second option is preferable, since documents are submitted to the MFC regardless of the location of the residential premises.

The following documents will be needed:

• parents’ passports and children’s birth certificates (the MFC will make photocopies of them);
• application in the prescribed form (the MFC employee will fill out the form himself);
• agreement on the allocation of a child’s share or deed of gift (copies);
• a copy of the marriage certificate ;
• title documents for residential premises, or information that all encumbrances have been removed;
• receipt for payment of state duty .

Registration of all documents directly at Rosreestr will take from 14 to 30 working days, depending on how busy the organization is. When processing documents through the MFC, the period will increase slightly, but not by much.

Obtaining an extract from the Unified State Register is a paid procedure, it will cost 2,000 rubles.

The procedure for allocating children's shares when purchasing or improving residential premises using a maternal certificate is quite complicated, and it also takes a lot of time. Each specific case requires clarification of some details and has its own nuances, which only an experienced lawyer can understand.

By contacting our on-duty lawyer online or by calling the numbers provided, you can get a free consultation on your specific case.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then :

• describe your situation to a lawyer in an online chat;
• write a question in the form below;
• call +7(499)369-98-20 - Moscow and Moscow region
• call +7(812)926-06-15 - St. Petersburg and region

Source: https://ros-nasledstvo.ru/obyazatelstvo-o-vydelenii-doli-detyam-po-materinskomu-kapitalu/

Obligation to allocate shares in maternity capital

Maternity capital funds have a specific purpose and the most common way to use them is to purchase housing. This right can be exercised only on the condition that the property is registered as the common property of the children and their parents.

Maternity capital funds can be used as payment for the missing amount for the purchase of finished or under construction real estate. And also used to pay a mortgage or during the construction or reconstruction of a residential building.

It is possible to allocate shares when purchasing a home in these cases only when drawing up a purchase and sale agreement for finished housing .

It is not possible to register the right of common ownership with children when purchasing real estate on other grounds, since the property is pledged to the seller or cannot be registered due to unfinished construction.

At the same time, the legislation provides for the possibility of allocating funds for these needs before all encumbrances are removed . This right can be exercised on the basis of submitting to the Pension Fund (PFR) an obligation to allocate shares .

Depending on the method of improving housing conditions, this document contains instructions on the circumstances after the occurrence of which the owner will have to allocate shares to family members. For example, after making the last payment to pay off the mortgage.

Is it necessary to allocate shares to children when using maternity capital to buy housing?

The law regulating the rules for the use of maternity capital funds establishes the obligation of parents to allocate shares to all family members (Part 4 of Article 10 of Federal Law No. 256 of December 29, 2006):

• natural or adopted children , including those born after the purchase of real estate;
• spouse who is the natural father or mother of the child.

Moreover, if the property was acquired by both parents and the shares of each were determined, then each of them . If one of the spouses refuses to fulfill the obligation, then the shares can be distributed in court at the request of the second spouse.

In the event of a trial, the size of the share of each spouse will be established depending on the funds spent by them, and for children - in proportion to the amount of maternity capital.

If property is acquired by only one of the spouses, then it will be part of the jointly acquired property during the marriage and will be their joint property .

The law obliges all family members to share shares, however, with this form of ownership, the shares of spouses are recognized as equal by law .

Regardless of the size of the shares allocated to the children, the remaining part of the property of the spouses will in any case be considered their joint property.

Allocation of shares in an apartment based on maternity capital under obligation

The obligation establishes conditions for parents that they must fulfill, regardless of the circumstances that occurred at the time of its execution.

For example, if, under the terms of the obligation, both parents must allocate shares to their children from their share , then in the event of divorce and division of property, each parent will in any case be obliged to allocate shares to the children.

The obligation must be fulfilled within 6 months after the occurrence of the circumstances specified in its contents. The duration of this period varies depending on the method of purchasing housing:

• When directing capital funds to participate in shared construction - after putting the house into operation and signing a transfer deed between the developer and the buyer.
• During the construction or reconstruction of a residential building - after registering the building with the cadastral register and receiving a cadastral passport. Funds can be allocated for such needs provided that the living space is increased by at least one accounting norm for all family members.
• When compensating the costs of building your own home - after the Pension Fund transfers maternity capital funds.
• When participating in a housing, housing-construction, housing-savings cooperative - after making the last payment, completing the payment of the share contribution.
• When purchasing real estate under a credit agreement or loan agreement - after the last payment has been repaid.

Documents for drawing up an obligation with a notary

The legislation establishes exclusively the notarial form of obligation . To certify this document, the notary must provide the following documents:

1. Identification documents of parents.
2. Identification documents for children - birth certificate, passport or adoption certificate.
3. Marriage certificate.
4. Maternity capital certificate.
5. Title documents for real estate (purchase and sale agreement, share participation in construction, extract from membership in a housing cooperative, loan agreement).
6. Documents on the ownership of real estate - an extract from the Unified State Register of Real Estate (if available).

Sample obligation to allocate a share of maternity capital

The obligation has legal force after it is notarized, but the document itself can be drawn up independently .

The role of the notary during certification is to verify the legal capacity of citizens, as well as the voluntary expression of will. Moreover, if there are errors in the text of the obligation, the notary has the right to refuse to certify it.

This document must indicate all essential conditions regarding the subject of the transaction, namely:

1. Details of the person making the obligation (full name, passport details, registration address).
2. Information about the family certificate - serial number, name of the issuing authority.
3. Reasons for using funds, for example, to repay a mortgage under a loan agreement.
4. The text of the obligation indicating the condition upon the occurrence of which the owner will have to register the property as common ownership for all family members, for example, 6 months after making the last payment under the loan agreement.
5. Rights and obligations of the parties to the transaction in accordance with the law.
6. Number of copies of the document.
7. Certification data of the notary and the signature of the originator.

Sample obligation to determine shares in an apartment

Cost of maternity capital obligation at the notary

For certification of unilateral transactions requiring mandatory notarization, including for registration of an obligation, the state duty must be paid as for certification of transactions, the subject of which is not subject to assessment, and amount to 500 rubles .

Source: http://materinskiy-kapital.molodaja-semja.ru/kak-ispolzovat/vydelenie-dolej/obyazatelstvo/