Is A Notary Always Necessary When Buying And Selling Land?

2024 Author: Sebastian Paterson | [email protected]. Last modified: 2023-12-16 13:47

The law provides for two forms of registration of contracts for real estate transactions.

The first option is to conclude an agreement at a notary office with the subsequent registration of the transaction at the Office of the Federal Registration Service (FRS - the former RRB).

The second, stipulated by the Civil Code of the Russian Federation and the Federal Law "On state registration of rights to real estate and transactions with it", is the conclusion of an agreement in simple written form. According to article 550 of the Civil Code of the Russian Federation "Form of the contract for the sale of real estate", the contract for the sale and purchase of real estate is concluded in writing by drawing up one document signed by the parties. As follows from the law, such an agreement does not require compulsory notarization.

Let's consider the advantages and disadvantages of each of the listed methods.

Registration in a notary's office by individuals of such documents as, for example, a loan agreement, will or power of attorney, in most cases is justified - with the exception of situations stipulated by law, the notary is the only representative of the law who can certify the document, confirm the legal capacity of the citizens who signed it. The document comes into force from the moment it is certified by a notary or from the moment specified in the certified document. In the event of some conflict situations requiring legal proceedings, there is no doubt more confidence in documents certified by a notary than in simple written form, especially if one of the parties cannot be present at the hearing.

The situation with real estate transactions is different. The duties of a notary include certifying the fact of concluding an agreement on a real estate transaction, certifying the identity of citizens who signed the document drawn up. However, the agreement will come into effect only after it is registered with the UFRS, which takes ten working days from the date of submission of documents. Naturally, when submitting documents to the UFRS, the relevant officials of this organization must also verify the identity of the citizens who have concluded the contract, check the correctness of the contract, the ownership of the alienated (acquired) real estate. That is, the registration procedure with the UFRS is absolutely the same both for a notarially concluded contract and for an agreement drawn up by the parties without the participation of a notary.

It is clear that it is quite difficult for people who are far from jurisprudence to draw up a contract on their own competently, especially concerning transactions with expensive real estate. As a rule, when drawing up such contracts, they turn to lawyers specializing in this area of law.

What is the difference between drafting a contract with a notary (who is also, of course, a specialist with a higher legal education) and a lawyer in the field of land use?

A. If you contact a lawyer, the payment for drawing up the contract will not depend on the value of the property. This allows the parties to the transaction to indicate the real market value of the object, regardless of whether you are making a deal with a room or buying an entire house. In a notarized contract, many do not indicate the real market price only because the cost of registration is calculated as a percentage of the value of real estate. Judicial practice shows that often the only proof of payment by the buyer to the seller is a receipt from the seller. Excessive fuss with receipts can be avoided if the parties indicate the real value in the contract, indicating that the money has been transferred.

B. In a notary office, you will most likely be asked to use one of several standard contract templates that are more or less suitable for your situation. A specialist in the field of land law, having thoroughly studied the specifics of your particular transaction, will be able to draw up an agreement that best suits the interests of the parties, foresee possible risks, give recommendations if necessary and assist in collecting additional documents that exclude the possibility of challenging the transaction in the future. An agreement is also possible on further legal support of the owner of the acquired real estate, for example, its resale, leasing, reconstruction, etc. An option is not excluded in which a lawyer, having carefully analyzed the submitted documents, will recommend that you refuse this transaction altogether,motivated by pointing out possible negative scenarios. Ultimately, the interests of the parties to the transaction and the lawyer interacting with them completely coincide, while the functions of a notary are reduced to a simple statement of the conclusion of an agreement.

B. If the agreement needs to be amended before it is submitted to the UFRS (for example, the parties decided to change the value of the property or the deal fell through at the last moment, but the seller found a new buyer willing to purchase the property on the same terms), the seller can independently rewrite a ready-made contract by entering corrected data. If the contract is drawn up in a notary office, it is necessary to re-apply to the notary, pay the fee, that is, start the process anew, which will result in a waste of both time and money. In addition, in order to avoid possible complications, it is advisable to terminate the previously concluded agreement, which requires the goodwill of both parties and their joint visit to the notary office.

Is it possible to conclude that when concluding real estate transactions, a notary is an "extra link"?

Yes, but with only one and very significant caveat - the lawyer involved in drafting the contract must be a highly qualified specialist in the field of land use, have experience in concluding similar contracts, successfully participate in litigation related to land issues, be an employee of an organization specializing in supporting transactions with real estate.