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Lawyer's explanation: how to sell property to an immigrant in his homeland, if there is no way to go there

Many people living abroad are faced with the need to sell or buy real estate in their home country. For example, in Russia. Our office helps in the implementation of your plans. At the same time, you do not have to fly abroad or look for a window at the consulate - you can complete all the necessary steps in our office.

Photo: IStock

Quite often, people fall under the influence of agents, friends, acquaintances and neighbors who, not being professional lawyers, give the wrong recommendations. As a result, thousands of people are misinformed, unable to make a sale and purchase transaction.

In fact, neither a trip to Russia nor an appeal to the consulate is required. Our office draws up powers of attorney, which are legalized in accordance with the Hague Convention of 1961. Legalization is a formal procedure for authenticating the seal and signature of the person who signed the document, as well as the capacity in which this person acted (be it a notary, a judge, or the head of a registry office). The only necessary formality in this case is the affixing of an apostille, which is issued by the competent authority of the state where the document was issued.

Apostille is affixed on the document itself or on a separate sheet attached to the document. The Apostille is issued in the official language of the issuing authority, but the phrase “Apostille, Convention de la Haye du 5 octobre 1961” is always in French. Apostille is affixed at the request of any bearer of the document, therefore, a power of attorney is not required for its execution.

The established procedure is confirmed by Article 408 of the Code of Civil Procedure of the Russian Federation, which guarantees that documents issued, drawn up or certified in accordance with foreign law in the prescribed form by the competent authorities of foreign states are accepted in the Russian Federation in the presence of legalization. However, documents drawn up in a foreign language require a properly certified translation into Russian.

therefore our office, taking over registration of your documents, does it on a turnkey basis, which covers:

  • direct execution of the document;
  • affixing an apostille on it;
  • delivery of the document to Russia or another country;
  • registration of a notarized translation and certification of the document by a Russian notary (service only for documents that will be used in Russia).

Thus, your representative in Russia, having received your power of attorney, can immediately work with it.

On the subject: Apostille, power of attorney, important information: myths about documents that complicate the life of immigrants in the USA

Legal "spokes in the wheel"

There are also other nuances that are required in Russia and in the regions for documents issued abroad. All this must be taken into account, based on the knowledge and professional experience of the person to whom you turn for help. So, Rosreestr (the body that carries out state registration of rights to real estate) imposes additional requirements on foreign powers of attorney, and asks that a foreign power of attorney be drawn up with the direct participation of a lawyer.

Here is how Rosreestr of Moscow substantiates its position:

“On behalf of the sellers, the application and other documents for state registration are submitted by their representative acting on the basis of a power of attorney certified on January 15, 2021 by a notary public in Michigan, USA.

In accordance with paragraph 1 of Art. 185.1 of the Civil Code of the Russian Federation, a power of attorney for transactions requiring a notarized form, for filing applications for state registration of rights or transactions, as well as for disposing of rights registered in state registers, must be notarized.

Legal actions, for which the above power of attorney was issued, require a mandatory notarial form by virtue of a direct indication of the law - clause 1 of Art. 16 of the Registration Act. Therefore, by virtue of paragraph 1 of Art. 185.1 of the Civil Code of the Russian Federation, the participation of a representative in the state registration of rights to real estate is possible only on the basis of a notarized power of attorney.

However, according to the requirements of US law, a public notary certifies only the authenticity of the signatures contained on the acts provided to him by interested parties, and the notary is not responsible for the content of the documents. Only participation in the execution of a power of attorney by a certified lawyer/lawyer will meet the requirements of the qualified form required for its operation in Russia. Thus, for recognition in Russia, a power of attorney from the United States must be prepared in the presence and with the help of a lawyer and certified by a public notary, and then legalized with an apostille.

Based on the foregoing, the presence of an apostille as such does not make up for the lack of full legal force of such a power of attorney, associated with a violation of the imperative requirements of Russian law. Therefore, these documents, although they are genuine, nevertheless do not give rise to the desired legal consequences on the territory of the Russian Federation.

To eliminate the reasons that prevent state registration, you need to bring the documents in line with the current legislation".

There are two ways out of this situation: agree with the requirements of Rosreestr and fulfill them, or disagree with them and appeal the refusal in court.

In a situation where the deal is in full swing, there is neither time nor desire to sue. Yes, and the expected result will be ambiguous. Therefore, it is better to initially issue a power of attorney for processing transactions abroad with a professional lawyer, thereby removing possible claims from Rosreestr.

Our office issues powers of attorney for real estate transactions at the highest professional level, our powers of attorney are accepted in all regions of Russia and in other countries of the former USSR. Moreover, our clients successfully complete their transactions in other countries: Israel, Croatia, Montenegro, Bulgaria, etc. And of course, we make powers of attorney for use in the United States. By issuing a power of attorney our office, you can be sure that everything was done correctly.

You may be interested in: top New York news, stories of our immigrants and helpful tips about life in the Big Apple - read it all on ForumDaily New York.

You can buy or sell real estate without your personal participation

The process of buying and selling real estate does not require the personal participation of either the seller or the buyer. Even if both parties are abroad, they can authorize their proxies to complete the transaction on their behalf. Some types of transactions require mandatory notarization; for some, it is enough for representatives of both parties to jointly apply to Rosreestr. The main thing at the same time is the fullness of powers and the correct execution of the power of attorney, which will save you from the risks of denial of state registration or its suspension.

Karina Duval. Photos from the personal archive

Quite often, people do not draw up a power of attorney for the sale of real estate, because in their inner circle there is no person whom they would completely trust. They are justifiably afraid of deception, for example, when the apartment is sold, but the money is not received. And these situations do happen. To avoid this, you should not trust the representative to receive cash - it is advisable to immediately transfer the money from the sale of the apartment to the account.

The next nuance arises with an extract / deregistration. There is a common misconception that an apartment in which minor children are registered cannot be sold. It's a myth, it's actually possible. If the child is the owner of the share, then the sale will require the consent of the guardianship and guardianship authority, which can be obtained if the child is provided with equivalent housing or an account is opened with the child's money credited to it.

But if the child is only registered in the apartment, not being its owner, then the fact of registering the child will not interfere with the process of selling the apartment. There is a mechanism for extracting the seller's family, including the child, by the seller himself - in this case, the relevant applications are drawn up, notarized, legalized, and submitted to the FMS in the prescribed manner. There is also a mechanism for extracting the seller's family in court after the transaction is completed. I repeat - a child who is not the owner of a share in the alienated apartment is not a hindrance.

Undoubtedly, the easiest way to exercise your rights is to come to your hometown and personally solve problems. But, alas and ah, this option is not available to everyone. As well as not everyone has the option of contacting the consulate. The 1961 Hague Convention provides an affordable mechanism to deal with most problems. You just need to know how to use this mechanism.

Material prepared in partnership with

Karina Duval - lawyer, notary, expert in international law

Russian registration: #78/857
NYS registration: 4775086
Notary public, registration: 02DU6376542

tel: + 7 (495) 662-8721 (in Russia) / + 1 (212) 205-2211 (in USA)

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