Owner. Children's property in real estate.

Children, like adults, have the right to property. They can own property, participate in privatization, etc. The state particularly protects the rights of minors in this regard.

Minors, like all Russian citizens, have certain rights, including in the field of real estate. Children can own property, but the property of their parents is not theirs by birthright.

Anton Ladygin, a legal consultant at IntermarkSavills, notes that the right to real estate arises for a child only if the apartment is gifted to them or transferred to them through inheritance, as well as in the case of their participation in privatization. If a child is just registered in an apartment that was purchased by one of the parents or both parents before marriage, they have the right to live in it, but this does not mean they own it. According to the Family Code, "children and parents living together should only use each other's property with mutual consent." It should be noted that parents also do not have ownership rights to the child's property. Olga Slavkina, Director of the Legal Department at Kalinka Real Estate Consulting Group, clarifies that the child can also be the owner of a share in the parent's apartment.

If an apartment is purchased for a child, their interests are protected by guardianship and custody authorities. After this, any transactions with this property can only be made with their consent. Olga Slavkina also points out that parents can only sell an apartment in which the child is a co-owner, even if it is just a share, after obtaining the prior permission of the guardianship and custody authorities. "Guardianship grants such permission if the child is endowed with the right to ownership of a similar share in another apartment, or if money for their share is transferred to their account. If the share in the new house is worse than in the previous apartment, the difference in value is also placed in the child's account." Tatiana Pikunova, Head of the Legal Department at Great Realty, notes that guardianship authorities usually approve deals involving real estate owned by minors only in cases where it is beneficial for them, as well as in cases of a change of residence and in some exceptional circumstances that require the child's interests. For example, in the case of expensive medical treatment. Usually, guardianship not only looks at the area but also at the cadastral value of the new property; the law does not provide direct instructions regarding its location. For example, Irina Mogilatova, Managing Partner of TWEED Agency, mentioned that guardianship consent is also required for deals in the luxury segment. Large financial sums are not evidence that the child's rights will be protected. "Guardianship needs to prove not the fact that the child-owner will not be left without housing after the transaction in principle, but the fact that they will not lose their housing conditions."

It would seem that everything is clear and understandable, the child's interests should not be compromised. However, in reality, everything is much more difficult. Nina Kuznetsova, founder of Urban Realty, said that recently, there have been more cases of guardianship authorities refusing to alienate such apartments, even if a new property with a significantly larger area is purchased in Moscow or the Moscow region in return. The expert gave the most recent example from her own practice.

A family with two children and a grandmother lived in a one-room apartment measuring 35 square meters in southeast Moscow. The parents decided to purchase an 80-square-meter three-room apartment in one of the residential complexes being built, where sales are carried out under the 214-FZ act, in exchange for the existing residential property. The guardianship authorities, during the preliminary discussion of this situation, stated that they would not give permission to sell the apartment and purchase a new one. They suggested endowing the children with ownership in another apartment instead. The sister of the mother, who owns a two-room apartment in Moscow, agreed and endowed the nephews with a share equal to or greater than what they had in their "one-room" apartment. However, the guardianship still refused permission, justifying the refusal by stating that the seller is a relative, even though the Family Code does not define aunts and uncles as direct relatives. And even though the refusal is unfounded, officials insist on it and advise seeking recourse to the court. Unfortunately, this is not the only precedent. It turns out that in reality, guardianship can hinder the improvement of children's living conditions.

To make transactions with housing where children are registered but not owners, no consent from the guardianship authorities is required. This was reported by Irina Shugurova, Deputy Managing Director for Legal Affairs at MIEL Real Estate Network, noting that if the rights of a child living in an apartment are in any way affected, permission still needs to be obtained. Timofey Titarenko, Senior Legal Consultant at Baltiyskaya Zhemchuzhina JSC, believes that this legal "caveat" complicates a lot in practice and gives the following example.-

It is quite typical that a man owns an apartment. He gets married, registers his spouse in the apartment, and then the newborn child is automatically registered there as well. Then the couple argues and gets divorced. The father moves out first, leaving his spouse and child in the apartment, but then he considers selling the property. The new buyer, after registering ownership rights to the apartment, wants to deregister and effectively evict the seller's wife and child, relying on Article 292 of the Civil Code, which states that "the transfer of ownership rights to a residential house or apartment to another person is grounds for termination of the right of family members of the former owner to use the residential premises." This rule has been in effect since 2005 and protected bona fide buyers. It was assumed that the child is under the care of the parents, and it is their responsibility to provide shelter for the child, not the buyer of the apartment. Consent to alienation was to be obtained only if the child was under guardianship or custody, or was an orphan. However, the situation changed in 2010 when guardianship began overseeing the rights of all minors, so even if the child has a mother and father, they cannot be evicted into "nowhere."

Titarenko notes that now "unscrupulous mothers started taking advantage of this situation, seeking recognition of the child's right to reside in the sold apartment out of personal revenge against the former spouse. After all, together with the right of the child to reside, these mothers effectively moved into this apartment. In this case, the bona fide buyer has to delve into the situation of the scandalous family and find out where the child actually lives and attends school. Only if the buyer can prove that at the time of the transaction the child actually lived elsewhere, even if registered in the disputed apartment, the right of the child to reside will be terminated and it will be possible to deregister them. If the child had no other housing and the mother proves her lack of housing as well, their right to reside in the purchased apartment is retained."

Speaking about a child's right to real estate, it is worth noting that a child can become an owner in the case of privatization of an apartment. There are also many legal nuances here.

In addition, as Anton Ladygin points out, apartments are provided by the state to orphaned children without any waiting lists, based on their place of residence. Firstly, a lease agreement is concluded for a period of five years. This was done to prevent possible illegal transactions with such properties. If nothing bad happens within five years, then this apartment is removed from the specialized housing stock and a standard social lease agreement is concluded. After that, the apartment can be privatized and become a property.

So, children have the right to real estate. It is precisely this right that forces careful checks of apartments on the secondary market.