How to protect yourself when buying an apartment on the secondary market. Analysis

There are more frequent cases in Russia when pensioners who sold their apartments under pressure from fraudsters return them to themselves through the courts, while bona fide buyers remain without an apartment and without money. The case of the apartment of singer Larisa Dolina, who managed to return the sold property in court, proving that the deal was made under pressure from fraudsters, inspired many. Lawyers talk about increased uncertainty in the secondary market. What can be done to prevent risks when buying an apartment is discussed in Izvestia.

Risks in the secondary market

• Not only pensioners can challenge a deal in court on the grounds that the seller was unaware of his actions at the time of the sale. Young people can also demand that the transaction be declared invalid, and the number of such cases is growing. Lawyers say that previously used precautions in the real estate market are no longer a guarantee of protection for buyers.

• Article 178 of the Civil Code provides for the possibility of invalidating a transaction if it was made under the influence of a misconception. Since the process of establishing the fact of error is not clearly regulated, courts of different instances may make different decisions on the same situation.

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• If the transaction is declared invalid, the principle of bilateral restitution applies: the apartment is returned to the seller, and the funds paid for it are returned to the buyer. However, paragraph 4 of article 167 allows not to comply with this requirement if its application would be contrary to the principles of law and order or morality. In such cases, the courts may side with the elderly, and buyers will lose the funds paid when buying an apartment.

How to protect yourself when making a deal

• Large real estate agencies adhere to certain regulations developed jointly with law enforcement agencies in order to identify cases when elderly people go to sell apartments under pressure from fraudsters. Mortgage title insurance is also considered an inexpensive way to protect yourself from such cases, but it does not provide a complete guarantee.

• When selling their only home, an elderly person most often plans to buy something in return, and they are usually accompanied by relatives in such transactions. Therefore, when the seller cannot explain where he plans to live next and refuses to give family contacts, this is a reason to be wary. In some cases, it is already possible to stop the actions of scammers at this stage.

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• Urgent transactions are a risk when housing is sold at a price below the market. If the seller signed the documents in a hurry, then it will be difficult to prove that he was not misled. And if the seller files for bankruptcy after the transaction, the transaction itself may be challenged on the grounds that selling the apartment at a lower price worsened his financial situation. Proxy transactions also carry great risks. It is recommended that they be conducted with the participation of the notary who issued the power of attorney.

• To protect yourself when buying an apartment, you need to make sure that the person is able to assess what is happening: a certificate from a neuropsychiatric dispensary may indicate that a person is not ill, but it does not guarantee that he is aware of his actions at the time of the sale. The procedure for concluding a transaction is designed to identify risks, when a notary asks what a person's name is, how he feels, and whether he understands where he is.

• If the seller has signs of alcohol or drug intoxication, it is better to refuse to sign the contract. In addition, in some diseases, such as cancer, people may take medications that affect their ability to perceive what is happening — for a court, this may be the basis for invalidating the transaction.

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• Non—cash payment becomes an additional protection for transactions - when money is placed on a letter of credit until the transfer of ownership rights. That is, the seller will not receive the funds until he releases the housing. At this stage, it is also sometimes possible to detect that a person is making a deal under the influence of fraudsters — they usually tell the elderly that they will not have to move out of the sold housing. Some notaries conduct video registration during the conclusion of a purchase and sale agreement. Such a video recording may be useful later for conducting a psychological and psychiatric examination and presentation in court.

• Signs of good faith in the transaction: the apartment was viewed, there were negotiations, mandatory examination, the transaction took place with the participation of a bank, by wire transfer and at a market price. It is better to purchase an apartment with the participation of a realtor who is familiar with all the details of the procedure and knows how to protect the buyer. The fact that the housing being sold is not the only one owned by the seller also provides some guarantees that the court will take the buyer's side in terminating the transaction.

Chances of a refund

• Even the fact that the price of the apartment is on the market, the sale is executed with the participation of a realtor and the necessary documents, and the preparation of the transaction took several months, will not prevent the seller from trying to challenge the deal in court. Therefore, it is important to prepare all the documents confirming that the sale procedure was transparent and voluntary even at the stage of purchase.

• Experts disagree on whether the buyer will be able to return the funds after the termination of the transaction. Lawyers warn that it is often impossible to predict the outcome of a case, and courts can make decisions without long consideration and thorough examinations. At the same time, in the practice of real estate agencies, there were rare cases when the court acted on the side of buyers and helped them recover funds.

During the preparation of the material, Izvestia interviewed:

• Andrey Nekrasov, lawyer, Candidate of Law, Managing Partner of the Moscow Bar Association Nekrasov, Rudomanov and Partners;
• Alexander Chernokulsky, the manager of Zhilfond LLC;
• advisor to the President of the Guild of Realtors of Moscow Konstantin Barsukov;
• real estate lawyer Elena Rudakova.