For each of us, real estate transactions are quite a serious undertaking. When buying or selling our property, we must take into account all legal aspects and likely Negative consequences, it is necessary to take measures in advance to prevent them.

In such situations, it would not be superfluous to take advice from trusted and professional specialists and realtors.

A realtor (translated from English as “realtor” means “real estate agent”) is a person, natural or legal, who is professionally engaged in intermediary activities in the real estate market when concluding transactions for the purchase or sale of real estate or when providing it for rent. His income when concluding any transactions is a commission or remuneration for the services provided by him. And what they do professionally is called “real estate activity.”

One of the most sought after and highly paid in the world. It develops and expands every year. Therefore, in order to set out in this direction, you need to have not only basic knowledge about this matter.

A competent and successful realtor in his business is the result of not so much long work as hard work on himself. To achieve this title, a person must be educated and savvy, be able to think analytically, be attentive, positive and resistant to stressful situations.

Real estate activities are carried out between two parties - a real estate agent and an interested consumer - on the basis of an agreement or power of attorney for a civil transaction with land, buildings, structures, structures, residential and non-residential premises. Not all countries practice obtaining appropriate permission from a government agency to provide this type of service. For example, in Russia there is no licensing of real estate activities.

Unfortunately, it is the lack of restrictions and control of this activity by the licensing authority that allows anyone into the market as a realtor.

An uncontrolled situation in this case actually turns into an immense field for the development of fraudulent activities. And this fact negatively affects the reputation of professional specialists.

Real estate activity is not only the actions of a broker or agent. To conduct such a business professionally, organized real estate platforms with established rules of the game can be created. On such platforms there are buyers, on the one hand, who create demand for real estate, and sellers, on the other hand, who make their proposals for the sale of such property. The broker, or organizer of such platforms, receives his commissions for bringing both parties together and pre-fixing transactions. Transactions on such platforms can be concluded using various auction methods. It is worth noting that this form of transaction minimizes the likelihood of fraudulent transactions, and will also allow the seller to receive the optimal price for his property, and the buyer - the most acceptable purchase price.

In the CIS countries, real estate activity is a relatively young type of professional service, which was not previously used in practice, or had a very meager history. But as people’s well-being increases, interest and attention to this type of employment increases.

IN last years The real estate market began to actively develop. Its development is mainly due to two main factors.

Firstly , this is due to the construction of new housing stock. In many large cities of Russia in recent years there has been a sharp increase in the number of new buildings. The largest cities in Russia are being “rebuilt”, and the number of construction firms is also growing. At the end of the 90s of the last century, our country faced a serious problem. Much of the country's housing stock had aged significantly and was soon in need of replacement. It was at this time that quite a few different programs were adopted at the federal level to improve living conditions citizens.

To build residential buildings, you must organize a legal entity (organization) or be registered as an individual entrepreneur and obtain a special permit - a license from the State Construction Committee of Russia. However, it should be noted that soon the licensing of construction activities will be abolished, first the licenses for the design of residential buildings, and then the construction licenses themselves. Currently, obtaining a construction license is not so difficult, and the number of violations during the construction of new buildings is constantly growing. Therefore, the state intends to tighten control when accepting (putting) a residential building into operation. Perhaps a system of trademarks and quality marks will be introduced, similar to Europe. It has become very profitable to build multi-storey buildings for subsequent sale; investing capital in construction is associated with minimal business risks, since housing is always in demand.

Secondly , this is due to a serious reform of the country’s civil legislation. Let us recall that until quite recently, according to the Housing Code of the RSFSR, housing could only be used for personal residence; the use of living space for making commercial profit was impossible. With the adoption of the new Civil Code of the Russian Federation (parts one, two and three) (as amended and supplemented on July 21, 2005) (hereinafter referred to as the Civil Code of the Russian Federation), it became possible to introduce residential premises into civil circulation, in relation to them it became possible to conclude purchase and sale agreements, commercial leases. The number of real estate transactions is constantly growing.

At the same time, this is not the first year on the market paid services Real estate firms also offer their services. They appeared almost immediately, along with the very opportunity to buy and sell residential premises. Realtors work where there is a constant demand for the purchase or rental of residential premises. The number of real estate firms and the scope of their activities in a particular city in the country are completely regulated by the needs of the residential services market. Currently, real estate activity is widespread in our country; we can talk about two types of real estate firms. First , the most common type of real estate firms are firms that provide only intermediary services in the real estate market. This small organization, which employs about a dozen realtors (often even less) who are engaged in “searching” for suitable options for the purchase or sale of real estate, their exchange, and rental. Such companies operate in most cities of Russia and not necessarily in large cities; they exist where, at a level “sufficient” for the company, there is a demand for the purchase, sale, exchange, rental of residential premises.

Second view of real estate firms as “real estate agents” in pure form you can't name it. They not only provide intermediary services for various real estate transactions, but can also participate in transactions themselves. These companies participate in the construction of residential complexes on a shared basis, invest money in construction, and buy housing. These are quite large companies; in terms of the number of employees they employ, they can be classified as “medium-sized businesses.” As a rule, they have a complex organization and structural division, possibly branches and representative offices. Such firms can be called “mixed” because, as already noted, they are engaged not only in real estate activities, but also in other real estate businesses.

The term is now increasingly used "realtor", the meaning and content of which is invested by the person who provides intermediary services in the real estate market. The term itself appeared in the United States in 1916, when it was registered as a special mark to designate an association of realtors. Realtors stood out among other real estate dealers because they engaged exclusively in “intermediary” services and often did not themselves act as a party to the transaction. In principle, real estate firms appeared and developed in developed and developing countries of Europe (mainly Western) and America. The concept and content of the activities of realtors mainly include intermediary services for purchase and sale; the share of other transactions that realtors help to conclude with real estate (mainly housing stock) is relatively small. Mostly, realtors abroad are engaged in buying and selling.

In our country, the market has a completely different structure and, in principle, the existence of a large real estate company that would only be engaged in providing intermediary services for purchase and sale is impossible. In order to successfully develop and receive significant profits, real estate firms must participate in the civil circulation of real estate in other ways. Therefore, real estate firms invest in the construction of housing stock and can, under agreements for the assignment of rights of claim, “sell” real estate objects that have not yet been completed. Realtors themselves can buy real estate (housing stock) for subsequent rental. Realtors in our country provide not only intermediary services for the purchase and sale, but also for the rental of residential premises.

Within the framework of this book, we will talk not only about the participation of real estate firms in intermediary real estate transactions, but also talk about many other forms of participation of real estate firms in the real estate market. Based on the Presidential Housing Program, we can say that real estate services mainly cover the “secondary” real estate market. The secondary market is precisely all subsequent resales of real estate from the moment of their construction. The primary real estate market includes all transactions with real estate that are related to its construction and the acquisition of ownership of a newly constructed real estate property.

It should be noted that in legislation the definition of real estate refers not only to residential premises, but also to all possible other objects firmly connected to the land; they cannot be moved to another place without causing damage to them. In relation to the topic we are considering, when we say “real estate”, we will mean not only residential premises, but also other real estate. Currently, realtors are not only looking for clients and counterparties for transactions with residential premises, but also with non-residential ones. They find clients tenants for premises for offices, shops, warehouses, sell garages, etc. All this significantly distinguishes our market for real estate services from the one that exists, for example, in the European Union. This is explained by the level of economic development of our country, therefore, in most regions of the country, real estate firms, in order to develop and exist, must also engage in other services in the field of real estate. Of course, this cannot be said for regions of Russia such as the city of Moscow; the market for real estate services there is at a completely different level. Let's give the concept of real estate activity.

Real estate activity– professional activity carried out on an ongoing basis to provide services for other persons for a fee when performing transactions with real estate, as well as other commercial professional activities in the real estate market, this is entrepreneurial activity to provide intermediary and information services when carrying out transactions with real estate, including including the acquisition, sale and exchange of real estate.

Real estate services– services provided in the implementation of real estate activities.

Professional market participant– a legal entity or individual entrepreneur carrying out real estate activities in the market of services in the field of real estate turnover and property management.

Qualified professional market participant– a professional market participant who has undergone the accreditation procedure in accordance with the established procedure and received a document confirming the compliance of its activities with the legislation of the Russian Federation, high quality services provided and professionalism in carrying out activities.

There are several types of real estate activities (certain types of realtor services), in particular:

1) activity of a realtor as an agent or attorney;

2) activities of a realtor as a broker;

3) activity of a realtor as a dealer;

4) the activity of a realtor as an intermediary in concluding transactions with real estate or rights to it between third parties;

5) activities of a realtor in organizing trade in real estate;

6) the activities of a realtor in the creation of individual real estate objects for the purpose of their subsequent sale and transfer for paid use;

7) activities of a realtor in the trust management of real estate;

8) the activities of a realtor in providing consulting services, services for studying market conditions, and other paid services accompanying the civil circulation of real estate.

All of these activities will be discussed below.

Real estate firms also provide a number of other real estate-related services that are not directly related to the provision of intermediary services for concluding real estate purchase and sale agreements. For example, they provide services for the reconstruction and redevelopment of residential premises. This type of service does not apply specifically to real estate companies, but if realtors do not do this kind of work, the company simply will not be able to exist.

In principle, the client can instruct the realtor to perform any action with his real estate. To do this, the realtor must obtain a notarized power of attorney from the client. The power of attorney can be issued for a period of three years. When certifying a power of attorney, the client pays a state fee to the notary.

We can say that the term itself "real estate company" in relation to our market of paid services has a completely different meaning from what was originally intended given word, when it was registered as a trademark in the early 60s. The level of economic development of our country is uneven. In different regions of the Russian Federation, the economy has a diverse structure. Our country is going through a complex process of economic development; factors influencing its structure are constantly changing. The economy of our country has remained unstable for a very long time; some industries (oil production) are significantly ahead of all others in their development, which ultimately had a very negative impact on it. Therefore, real estate firms in some economically more prosperous regions have a completely different structure (provide a slightly different list of services) than those located in less developing ones. But, nevertheless, the market for real estate services throughout the country is growing and developing. Although its development is taking place in spurts in certain regions of the country.

Thus, real estate activity– entrepreneurial activity in the real estate market, activities carried out by independent subjects of the real estate market for the purpose of making a profit by organizing and completing civil transactions (purchase, sale, barter, rent, leasing, mortgage) with real estate that does not belong to them (land plots, buildings, buildings, structures, residential and non-residential premises) and rights to it, including brokerage and agent activities in real estate, real estate management activities, activities to attract private investment in the creation and development of real estate. In addition, this is the activity of providing all other services related to the client’s real estate (transfer of residential premises to non-residential premises). In the most general view, all the work of a realtor can be represented as two groups of services provided to clients:

1) services for concluding real estate transactions;

2) services for performing other actions that give rise to any rights and obligations for the client in relation to his property, but not related to the civil circulation of this property. We will look at the characteristics of realtor services in more detail in Chapter 2 of this book.

A realtor must be a sociable, self-possessed and understanding person. In addition, his work is related to the preparation of documents; the realtor accompanies the transaction until its completion, which occurs when the transaction is registered with the registry office. This means that a realtor must have the ability for analytical thinking, attentiveness, clarity, preferably with a higher education. The entire “document flow” that goes through a realtor can be divided into two main stages (stages). First , this is the drawing up of all possible contracts, agreements, and the conclusion of other transactions. All of them are related to the main service, the result that the client wants to achieve from the realtor. Second , is precisely connected with the state registration of a transaction in the justice body of the Russian Federation for registration of rights and transactions with real estate. If the realtor does not immediately, at the first meeting with the client, inform him about the point to which he will “accompany” the client, then most likely you may be deceived. A conscientious realtor must accompany a real estate transaction until the client receives all necessary documents from the registration chamber, testifying to its state registration. It is at the stage of state registration of a real estate transaction that a number of problems with state registration of the transaction may arise.

Recently, a huge number of companies engaged in real estate activities have appeared on the real estate market. Such tough and “close” competition is one of the many factors that determine both the situation and the quality of services in the real estate market. “Tightness” leaves room only for those who work honestly, conscientiously and highly professionally. Competition is beneficial to the consumer of our services: those who come to the real estate market seriously and for a long time must think about how to win the trust of the client. This is only possible if we provide the full range of services for real estate transactions. It is not without reason that some agencies undertake to provide a full range of turnkey services, including assisting the client in moving from a sold living space to a purchased one. Although it is clear that the decisive role will not be played by the possibility of relocation, but by the level of quality of the entire range of services.

Within the framework of the topic we are considering, we note that the state does not particularly control the activities of real estate firms. Let us compare this with the fact that back in the 90s of the last century, real estate activities were subject to licensing, but now this is not the case. However, this does not mean that the state has abandoned the functions of monitoring the activities of real estate firms.

We have already noted that real estate activities are not subject to licensing. However, the state can control the activities of real estate firms in other ways available to it. Let us immediately note that state control also includes tax control. Within the framework of this issue, we will consider only the issues of conducting an audit by the tax authorities, but the taxation issues themselves will be discussed in a separate chapter of the book. What types of government control will we touch upon as part of this issue?

Firstly , this is control carried out by government agencies in accordance with the law on combating the legalization (laundering) of funds obtained by criminal means. Secondly , this is antimonopoly control, Thirdly - This is tax control. Here are the most “active” types of control for real estate firms that they encounter in their practice. The given list of controls is far from exhaustive and is a type of active control. For example, a real estate company may become subject to control by labor safety inspectors, fire inspectors, etc.

One can also identify a kind of “passive” control by the state over the activities of real estate firms. A real estate company, like any other, can commit a criminal offense punishable act or commit an administrative offense. This type of control is “activated” when specific offenses are committed. Let's take a closer look at all types of control.

The first type of control is related with legalization (laundering) of funds obtained by criminal means . Federal Law No. 115-FZ of August 7, 2001 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism” (as amended and supplemented on November 16, 2005) stipulates that a transaction with real estate is subject to mandatory control if the amount for which it is made is equal to or exceeds 3,000,000 rubles or equal to or exceeds an amount in foreign currency equivalent to 3,000,000 rubles. A transaction with funds or other property is subject to mandatory control if at least one of the parties is an organization or individual in respect of which there is information received in accordance with the procedure established by the Federal Law about their participation in extremist activities, or a legal entity directly or indirectly owned or controlled by such organization or person, or a person or entity acting on behalf of or at the direction of such organization or person.

Thus, when making a transaction for an amount exceeding 3,000,000 rubles, you automatically become the object of control by regulatory authorities to determine whether you have a sum of money of this size.

The country's Ministry of Antimonopoly Policy also controls the activities of real estate firms. This mainly applies to large companies . The NTU MAP of Russia received a statement from a commercial organization about an anti-competitive agreement within the Novosibirsk Association of Realtors (hereinafter referred to as the Association), which consisted of the following actions:

1) coordination of business activities of members of the Association, which resulted in restriction of competition;

The territorial administration opened a case on grounds of violation of Art. 10 of the Federal Law of June 23, 1999 No. 117-FZ “On the Protection of Competition in the Financial Services Market” (as amended and supplemented on December 30, 2001) (hereinafter referred to as the Competition Law). At the meeting of the commission of the NTU MAP of Russia, materials and documents were presented that indicated the existence of an anti-competitive agreement. Coordination (harmonization) of business activities was carried out in two directions:

1. Coordination of pricing policy. From the presented materials it follows that from the very beginning of the Association’s activities, a unified pricing policy was pursued. Such coordination limited competition between members of the Association and infringed on the interests of their clients.

2. Coordination of advertising activities. Advertising activities are a component of competition policy, and the consequence of its coordination has been a significant restriction of competition. The minutes of the Association meeting contain restrictions regarding advertising and were aimed at maintaining a certain price level.

At the Association meetings, it was decided not to advertise discounts on services and not to publish information about the cost of services. Apparently, this decision was made to hide the fact of establishing uniform prices, tariffs and discounts. The commission of the NTU MAP of Russia decided to issue an order demanding that the violation of Art. 6 of the Competition Law, expressed in:

1) coordination of business activities that resulted in restriction of competition;

2) carrying out an agreed pricing policy;

The commission of the NTU MAP of Russia decided to go to court with a claim to liquidate the Association. The association filed a lawsuit to cancel the decision and order of the commission of the NTU MAP of Russia. In support of its demands, the Association indicated the following: based on signs of violation of antimonopoly legislation, a commission was created to review the case for violation of antimonopoly legislation. The determination to initiate a case indicated that the Association violated /Art. 10 of the Competition Law, however, the commission decided to issue an order to stop the violation of Art. 6 of the Competition Law, thus, according to the plaintiff, the decision-making procedure was violated and, therefore, the decision and order on this basis are invalid. The plaintiff also indicated that the commission's conclusion about the agreed pricing policy, which led to restriction of competition, does not correspond to the actual circumstances of the case.

In accordance with Art. 121 of the Civil Code of the Russian Federation, commercial organizations can create associations in the form of associations specifically for the purpose of coordinating business activities. The very fact of coordination of activities is not a violation of antimonopoly legislation. Only if such coordination results in a restriction of competition does it become illegal. Coordination of pricing policy was understood only as forms of communicating information about prices to consumers of real estate services.

Having considered the decision and order of the commission, the minutes of the meeting of members of the Association, in one of which it was decided to give one of the members of the Association a period to change the pricing policy, which was one of the proofs of the existence of price coordination, the court found the arguments of the NTU MAP of Russia unfounded, based on the following. In accordance with Art. 121 of the Civil Code of the Russian Federation, commercial organizations can create associations in the form of associations in order to coordinate their business activities. In accordance with the Association's charter, one of the statutory goals of its activities is to coordinate the activities of real estate firms. Thus, coordination of the pricing policy of real estate firms in order to comply with antimonopoly legislation cannot lead to a restriction of competition. According to the plaintiff, at the meeting of members of the Association they discussed the coordination of pricing policy in the form of communicating information about prices to consumers of real estate services, which is not a circumstance that entails or may entail a restriction of competition. NTU MAP of Russia did not provide any other evidence of restriction of competition.

According to the plaintiff, the members of the Association did not stipulate any price level, and the defendant did not provide evidence to the contrary. According to the decision of the commission, the restriction on advertising campaigns established by the Association was reflected in the minutes of the meeting of members of the Association. Having examined these protocols, the arbitration court found the following. At the meeting, in the speeches of representatives of members of the Association, the issue of advertising discounts was raised. However, the minutes of the meeting do not contain solutions to this issue. The very raising of the question does not mean a violation of antimonopoly legislation. However, the following decisions were made at the meeting: not to punish for telephone answers about percentage discounts, not to publish information about the size of the cost of services and discounts.

Having examined the circumstances of the case, the arbitration court found unfounded the defendant’s argument that coordination of advertising activities automatically entails a restriction of competition, since the defendant did not prove that the restrictions regarding advertising were aimed at maintaining a certain price level. The court found the defendant's conclusions that the Association's decision not to publish information about discounts limits competition in the real estate services market to be contrary to the rules of law, and proceeded from the following.

In accordance with /Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is understood as activity independently carried out at one’s own risk, aimed at systematically generating profit. Publication or non-publication of any information, including information about the services provided, does not relate to the subject of business activities carried out by real estate companies. Based on this, the decision of the NTU MAP of Russia on the existence of restrictions on the publication of discounts is not at all related to the coordination of business activities. Taking into account the lack of proof of the restriction of competition and the agreement of the Association members to establish a certain price level, the arbitration court overturned the decision and order of the NTU MAP of Russia.

NTU MAP of Russia filed an appeal against the decision of the arbitration court. The arbitration court of appeal overturned the decision of the arbitration court of first instance on the following grounds. According to paragraph 4 of Art. 6 of the Competition Law prohibits associations (unions or associations) business companies and partnerships, coordination of business activities of commercial organizations, which has or may result in a restriction of competition. From the decision of the NTU MAP of Russia it follows that the Association coordinated the entrepreneurial activities of its members. Coordination was carried out in two directions: pricing policy and advertising activities. As can be seen from the case materials, at one of the meetings of the Association members the issue of pricing policy was discussed. A decision was made to provide AOZT with a deadline for changing its pricing policy. This fact indicates the influence of the Association on the pricing policy of members.

Coordination of pricing policy is clear from the Association’s decision of February 13, 1996 to prohibit the implementation of dumping policies in the Association, which is in in this case ban on price reductions. At the Association meeting, the issue of reducing the cost of services by 6–7% was raised. Despite the rejection of the proposal, this fact indicates the existence of coordination of pricing policy. Coordination of the pricing policy of members by the Association is a violation of clause 4 of Art. 6 of the Competition Law. Advertising information about the cost of services and discounts helps to increase the sale of goods (services). Consequently, restrictions on the publication of information about discounts and the cost of services are associated with restrictions on business activity (2 firms were excluded from the Association that violated the requirements for limiting the dissemination of information about discounts).

Thus, the arbitration court recognized that the Association coordinated the entrepreneurial activities of its members, which resulted in a restriction of competition between members of the Association. This is a violation of Article 6 of the Competition Law. The arbitration court of the first instance indicated that the NTU MAP of Russia did not prove that such coordination entailed a restriction of competition. However, this argument was not taken into account by the appellate court, since Article 6 of the Competition Law prohibits associations from coordinating business activities that have or may result in a restriction of competition.

The Arbitration Court of Cassation, leaving the Association's cassation appeal unsatisfied, indicated that the plaintiff's reference to the fact that the NTU MAP of Russia violated the procedure for issuing an order (the case was initiated on grounds of violation of one article, and the order was issued to stop the violation of another article of the Competition Law ), is insolvent for the following reasons. The norms of the Competition Law and the Rules when considering a case initiated on grounds of violation by a legal entity of antimonopoly legislation do not limit the commission of the antimonopoly authority in its powers to re-qualify the actions of a legal entity and make decisions on established facts of violation. Therefore, to reclassify an act, it is not necessary to initiate a new case.

Then this situation developed further. NTU MAP of Russia in accordance with Art. 6 of the Competition Law brought a claim to the Novosibirsk Arbitration Court for the liquidation of the Association. In presenting a demand for the liquidation of the Association, the plaintiff referred to clause 2 of Art. 61 of the Civil Code of the Russian Federation and qualified the defendant’s actions as carrying out activities prohibited by law, namely clause 4 of Art. 6 of the Competition Law. NTU MAP of Russia also considered that the actions of the Association are a gross violation of the Competition Law, since only for the specified violation by virtue of clause 4 of Art. 6 of the Competition Law, antimonopoly authorities may bring claims for the liquidation of associations of commercial organizations.

The arbitration court did not find any grounds for liquidating the defendant and proceeded from the following. Paragraph 2 of Article 61 of the Civil Code of the Russian Federation contains a list of grounds on which a legal entity can be liquidated by a court decision. These, in particular, include carrying out activities prohibited by law or in other gross violations of the law. Indeed, the commission of the NTU MAP of Russia established the fact of a violation of antimonopoly legislation, and the Competition Law provides for the right to file claims for the liquidation of legal entities in court, but, nevertheless, this cannot serve as a criterion for a gross violation of the law. Based on the general principles and meaning of civil legislation, a gross violation of the law can be considered actions committed for the purpose of knowingly contrary to the foundations of law and order and morality, as well as those that entailed adverse, irreparable consequences.

The arbitration court of appeal also pointed out that the NTU MAP of Russia did not provide documentary evidence that the Association had repeatedly violated antimonopoly legislation. The territorial administration also did not provide documentary evidence that the Association carried out activities prohibited by law... The cassation court agreed with the arguments of the arbitration courts of the first and appellate instances and pointed out the following. In accordance with clause 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8, a legal entity can be liquidated only in cases provided for by the Code (clause 2 of Article 61 of the Civil Code of the Russian Federation). Consequently, the failure of the specified person to comply with the requirements contained in other laws may serve as grounds for the liquidation of a legal entity if the court qualifies the relevant actions as repeated or gross violations of this law or other legal act. The arbitration court, taking into account the circumstances of the case and the current legislation, gave a proper assessment of the actions of the Association and reasonably came to the conclusion that there were no grounds provided for in paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, for its liquidation.

The supervisory authority also found no grounds for canceling the decision of the arbitration court. Thus, according to the court, associations of legal entities (unions and associations) can be liquidated in judicial procedure only as a result of gross and repeated violations of antimonopoly legislation.

When conducting tax control over the activities of real estate firms, tax authorities must be guided by Art. 89 of the Tax Code of the Russian Federation (as amended and supplemented on November 4, 2005) (hereinafter referred to as the Tax Code of the Russian Federation), tax control is carried out by officials of tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and tax payers, verification of accounting and reporting data, inspection of premises and territories used to generate income (profit).

Tax authorities, customs authorities, bodies of state extra-budgetary funds and internal affairs bodies, in the manner determined by agreement between them, inform each other about the materials they have on violations of the legislation on taxes and fees and tax crimes, measures taken to suppress them, about the tax audits they conduct, and also exchange other necessary information in order to fulfill the tasks assigned to them.

When exercising tax control, the collection, storage, use and dissemination of information about the taxpayer (payer of the fee, tax agent) obtained in violation of the provisions of the Constitution of the Russian Federation, the Tax Code of the Russian Federation, federal laws, as well as in violation of the principle of security of information constituting the professional secret of other persons, in particular attorney-client secret, audit secret.

When conducting an audit, the tax authorities are guided by the Federal Law of August 8, 2001 No. 134-FZ “On the protection of the rights of legal entities and individual entrepreneurs during state control (supervision)” (as amended and supplemented by July 2, 2005). ).

Control measure is a set of actions of officials of state control (supervision) bodies related to the verification of compliance by a legal entity or individual entrepreneur with mandatory requirements, implementation necessary research(tests), examinations, registration of inspection results and taking measures based on the results of control activities.

According to Art. 3 of this federal law, the basic principles of protecting the rights of legal entities and individual entrepreneurs during state control (supervision) are:

1) presumption of good faith of a legal entity or individual entrepreneur;

2) compliance with international treaties of the Russian Federation;

3) openness and accessibility for legal entities and individual entrepreneurs of regulatory legal acts establishing mandatory requirements, the implementation of which is verified during state control (supervision);

4) establishment of mandatory requirements by federal laws and normative legal acts adopted in accordance with them;

5) carrying out control measures by authorized officials of state control (supervision) bodies;

6) compliance of the subject of the control activity with the competence of the state control (supervision) body;

7) the frequency and efficiency of carrying out control measures, providing for its complete and fastest possible implementation within the established period;

8) accounting of control measures carried out by state control (supervision) bodies;

9) the possibility of appealing against actions (inaction) of officials of state control (supervision) bodies that violate the procedure for carrying out control measures established by the specified Federal Law, other federal laws and normative legal acts adopted in accordance with them;

10) recognition, in the manner established by federal legislation, as invalid (in whole or in part) of regulatory legal acts establishing mandatory requirements, compliance with which is subject to verification if they do not comply with federal laws;

11) elimination in full by state control (supervision) bodies of violations committed if the court recognizes the complaint of a legal entity or individual entrepreneur as justified;

12) responsibility of state control (supervision) bodies and their officials during state control (supervision) for violation of the legislation of the Russian Federation; the inadmissibility of state control (supervision) bodies charging fees from legal entities and individual entrepreneurs for carrying out control measures, with the exception of cases of reimbursement of expenses of state control (supervision) bodies for carrying out research (tests) and examinations, as a result of which violations of mandatory requirements were identified;

13) the inadmissibility of direct receipt by state control (supervision) bodies of deductions from amounts collected from legal entities and (or) individual entrepreneurs as a result of control measures.

Control measures are carried out on the basis of orders (orders) of state control (supervision) bodies.

The order (order) on carrying out control measures shall indicate:

1) number and date of the order (order) to carry out the control measure;

3) last name, first name, patronymic and position of the person (persons) authorized to carry out control activities;

4) the name of the legal entity or the last name, first name, patronymic of the individual entrepreneur in respect of whom the control measure is being carried out;

5) goals, objectives and subject of the control measures being carried out;

6) legal grounds for carrying out control activities, including regulatory legal acts, the mandatory requirements of which are subject to verification;

7) start and end date of the control activity.

The order (order) to carry out a control measure or its sealed copy is presented by the official carrying out the control measure, to the head or other official of a legal entity or to an individual entrepreneur simultaneously with an official identification card. The control measure can be carried out only by the official (persons) indicated in the order (order) on the control measure.

The duration of the control activity should not exceed one month. In exceptional cases related to the need to conduct special studies (tests), examinations with a significant volume of control measures, on the basis of a motivated proposal from the official carrying out the control measure, the head of the state control (supervision) body or his deputy, the period for carrying out the control measure may be extended, but not more than one month.

In order to verify compliance by legal entities and individual entrepreneurs with mandatory requirements, the state control (supervision) body, within its competence, carries out planned control measures. In relation to one legal entity or individual entrepreneur, each state control (supervision) body can carry out a planned control event no more than once every two years. In relation to a small business entity, a planned control measure can be carried out no earlier than three years from the date of its state registration.

An unscheduled inspection, the subject of which is monitoring the execution of orders to eliminate identified violations, is subject to the activities of a legal entity or individual entrepreneur when violations of mandatory requirements are identified as a result of a planned monitoring event. Unscheduled control activities are carried out by state control (supervision) bodies also in the following cases:

1) obtaining information from legal entities, individual entrepreneurs, government bodies about the occurrence of emergency situations, changes or violations of technological processes, as well as failure of structures and equipment that can directly cause harm to life, health of people, the environment and property of citizens, legal entities and individual entrepreneurs;

2) the emergence of a threat to the health and life of citizens, environmental pollution, damage to property, including in relation to similar goods (works, services) of other legal entities and (or) individual entrepreneurs;

3) appeals from citizens, legal entities and individual entrepreneurs with complaints about violations of their rights and legitimate interests by the actions (inaction) of other legal entities and (or) individual entrepreneurs related to their failure to comply with mandatory requirements, as well as obtaining other information confirmed by documents and other evidence indicating the presence of signs of such violations. Appeals that do not allow the identification of the person who applied to the state control (supervision) body cannot serve as a basis for carrying out an unscheduled control event.

In relation to legal entities and individual entrepreneurs - members of a self-regulatory organization, jointly and severally bearing, in accordance with the statutory documents, subsidiary liability for damage caused by members of the said organization due to failure to comply with the mandatory requirements for professional activity which is the subject of self-regulation, a procedure for state control (supervision) is established, providing for the implementation of planned control measures in relation to 10 percent of the total number of members of the self-regulatory organization, but not less than in relation to two members of the self-regulatory organization, determined by the choice of the state control (supervision) body . The procedure for carrying out planned control measures in relation to members of a self-regulatory organization is established by a decree (order) of the state control (supervision) body at the request of the self-regulatory organization, which must contain information confirming membership in the self-regulatory organization and the joint bearing of the subsidiary liability of its members for damage provided for in this paragraph.

Establishing a procedure for carrying out planned control measures in relation to members of a self-regulatory organization may be refused if the state control (supervision) body at the time of appeal has grounds for carrying out unscheduled control measures in relation to its members.

The decision to refuse to establish the procedure for state control (supervision) of a self-regulatory organization, made by the head of the state control (supervision) body, can be appealed in the prescribed manner. If violations of mandatory requirements are detected by members of a self-regulatory organization, officials of the state control (supervision) body are obliged, when carrying out planned control activities, to inform the self-regulatory organization about the identified violations. If, when carrying out planned control measures, one of the members of a self-regulatory organization violates mandatory requirements, the state control (supervision) body may decide to carry out unscheduled control measures in relation to any other members of the self-regulatory organization.

Violations of mandatory requirements by members of a self-regulatory organization identified during unscheduled control activities are the basis for a decision by the state control (supervision) body to cancel established order carrying out planned control measures in relation to members of a self-regulatory organization. The adopted decision, indicating the violations committed by members of the self-regulatory organization and the circumstances that served as the basis for the adoption of such a decision, is brought to the attention of the self-regulatory organization in writing by the state control (supervision) body within three days from the date of its adoption.

When carrying out control measures, officials of state control (supervision) bodies are not entitled to:

1) verify compliance with mandatory requirements that are not within the competence of the state control (supervision) body on behalf of which officials act;

2) carry out scheduled inspections in the absence of officials or employees of inspected legal entities or individual entrepreneurs or their representatives during control activities;

3) demand the presentation of documents, information, samples (samples) of products, if they are not the objects of control measures and do not relate to the subject of inspection, and also seize original documents related to the subject of inspection;

4) demand samples (samples) of products for carrying out their research (testing), examination without issuing an act on the selection of samples (samples) of products in the prescribed form and in quantities exceeding the norms established by state standards or other regulatory documents;

5) disseminate information that constitutes a secret protected by law and obtained as a result of control measures, except for cases provided for by the legislation of the Russian Federation;

6) exceed the established deadlines for carrying out control measures.

Based on the results of the control event, the official (persons) of the state control (supervision) body carrying out the inspection draws up an act of the established form in two copies. The act specifies:

1) date, time and place of drawing up the act;

2) name of the state control (supervision) body;

3) date and number of the order on the basis of which the control measure was carried out;

4) last name, first name, patronymic and position of the person(s) who carried out the control event;

5) the name of the legal entity being inspected or the last name, first name, patronymic of the individual entrepreneur, last name, first name, patronymic, position of the representative of the legal entity or representative of the individual entrepreneur present during the control event;

6) date, time and place of the control event;

7) information about the results of the control measures, including the violations identified, their nature, and the persons who are held responsible for committing these violations;

8) information about familiarization or refusal to familiarize with the act of a representative of a legal entity or individual entrepreneur, as well as persons present during the control event, their signatures or refusal to sign;

9) signature of the official (persons) who carried out the control measure.

Attached to the act are acts on the selection of samples (samples) of products, inspection of environmental objects, protocols (conclusions) of studies (tests) and examinations, explanations of officials of state control (supervision) bodies, employees who are held responsible for violations of mandatory requirements, and other documents or copies thereof related to the results of the control activities.

One copy of the act with copies of the attachments is handed over to the head of the legal entity or his deputy and the individual entrepreneur or their representatives against signature or sent by post with a receipt receipt, which is attached to the copy of the act remaining in the file of the state control (supervision) body. If, as a result of an administrative violation, an official of the state control (supervision) body draws up a protocol in the manner established by the legislation of the Russian Federation on administrative offenses, and gives instructions to eliminate the identified violations.

Legal entities and individual entrepreneurs keep a log of control activities. In the journal of control activities, an official of the state control (supervision) body makes a record of the control event carried out, containing information about the name of the state control (supervision) body, the date, time of the control event, the legal grounds, goals, objectives and subject control measures, violations identified, protocols drawn up, administrative offenses and orders issued, as well as the last name, first name, patronymic, position of the person(s) who carried out the control measure, and his (their) signature. The logbook of control activities must be stitched, numbered and certified with the seal of a legal entity or individual entrepreneur. In the absence of a log of control measures, a corresponding entry is made in the report drawn up based on the results of the control measures taken.

When committing various offenses, a real estate company will be subject to liability depending on the type of offense committed. This can be criminal, tax, administrative, or civil liability. Let's consider some options for criminal liability for real estate firms.

The most common crime committed is fraud involving the client's real estate. Fraud– theft of someone else’s property or the acquisition of rights to someone else’s property through deception or abuse of trust – has all the signs of theft listed in Note 1 to Art. 158 of the Criminal Code of the Russian Federation, with the only difference that the subject of encroachment in fraud is broader than the subject of other forms of theft. According to the disposition of Part 1 of Art. 159 of the Criminal Code of the Russian Federation, the subject of fraud can also be the right to property (for example, a savings book for receiving a deposit in a bank, IOU to receive money from a creditor, etc.). The objective side of fraud is expressed in actions characterized by two ways of committing them: deception or abuse of trust. As a result of deception or abuse of trust, the victim, misled, voluntarily transfers his property to the fraudster. Thus, a realtor may deliberately mislead his client regarding the rights transferred to him, or the further actions of the realtor and the result obtained. Deception of the owner, possessor or person under whose protection the property is located can be expressed in deliberate distortion or suppression of the truth. Deceptive actions during fraud are committed until the transfer of property in favor of the perpetrator. Consequently, a causal connection must be established between the deception and delusion of the victim, who voluntarily transfers property to the perpetrator, mediated by the consciousness of the victim.

Most typical forms deception are expressed in the fact that the perpetrator pretends to be a person who has the right to receive property, which he actually is not. In the field of real estate services, this is most often expressed in the realtor exceeding his authority. Deception can be expressed in receiving a cash advance for work that the perpetrator does not intend to perform, or keeping silent about circumstances that are important (for example, the death of a relative while receiving his pension by proxy). Finally, the perpetrator may submit false documents to obtain someone else's property or money (fake power of attorney).

Another form of fraud is breach of trust . The essence of abuse of trust as a fraudulent method of taking someone else’s property is to use trust relationships between the perpetrator and the victim. In order for abuse of trust to be recognized as a method of fraudulently taking possession of someone else’s property, it is not enough for the offender to arouse through his actions special trust in himself on the part of the victim or to use this trust due to the special relationship existing between him and the victim. The perpetrator must convince the victim to transfer the property into his possession. Breach of trust covers cases of fraudulent conclusion of contracts (for example, someone gets a signature on a bill under the pretext of obtaining a loan from a bank and instead presents it to the signatory for collection). This method of fraudulently taking possession of someone else’s property for personal gain will occur when, for example, a realtor formalizes and actually acquires real estate purchased for a client into his own ownership, or appropriates the money received from the sale.

Of particular interest is the issue of the use of counterfeit or illegally acquired documents giving the right to receive someone else's property. By presenting such a document (for example, a fake power of attorney to receive money), the offender creates a fictitious legal basis for receiving someone else’s property, but if the offender himself produced such a forged document, then liability must arise for the totality of crimes provided for in Art. 159 and 327 of the Criminal Code of the Russian Federation. Currently, so-called fraudulent transactions have become widespread, when a person or group of persons enter into an agreement to perform any work or purchase things, trying to take possession of someone else’s property and not intending to fulfill their obligations. The Supreme Court of the Russian Federation, in one of the rulings of the Judicial Collegium for Criminal Cases, indicated that the actions of a person who entered into agreements with citizens to purchase goods from them, with the intent to deceive in order to seize their funds, contain signs of fraud.

Fraud is considered a completed crime at the moment the victim, misled as a result of deception or abuse of trust, voluntarily transfers his property to the perpetrator. In those cases when the perpetrator acquires the right to property using the same methods, the crime is considered completed at the moment of receiving a document granting the corresponding right.

The next common crime in the field of real estate activities is the crime provided for in Art. 201 of the Criminal Code of the Russian Federation – abuse of power. This crime infringes on the normal activities and interests of service in commercial and other organizations, as well as on the rights and legitimate interests of citizens or organizations, society or the state. This composition provides that the realtor, through deliberate abuse of his powers, caused harm to his client. This composition should be distinguished from fraud because fraud implies the acquisition of the client’s property into the ownership of a realtor or other persons, but according to his intent (direct, indirect). In case of abuse of power, a realtor intentionally or through negligence (frivolity) causes or allows damage to the property of his client, while the realtor himself does not acquire anything, nor do other persons acquire anything.

We have already said above that all services provided by a realtor to a client can be divided into two groups. First group – these are the services of a realtor for the participation of “real and residential” property in civil circulation. Second group real estate services consist of the realtor’s actions with the client’s real estate, not related to transactions for its alienation, rental, lease, etc. Let us consider in more detail all the options outlined for the services provided by the realtor.

First group services are always provided by any real estate company. They are connected with the fact that the realtor provides intermediary services for concluding civil transactions with the client’s real estate, or with his material assets with the ultimate goal of acquiring real estate by the client.

In connection with this type of service, we can talk about the participation of a realtor in the purchase and sale, exchange, donation, lifelong maintenance with dependents, hiring and leasing of real estate. All of these transactions can be distinguished as an independent type of services provided by a realtor within the framework of the first group of realtor services we have identified.

When providing such services, the realtor’s entire job is what he finds for the client suitable option to conclude a deal. In this case, the realtor can participate in the conclusion of the transaction himself as a proxy, or not legally participate in the conclusion of the transaction at all, but only prepare all the necessary documents for the transaction and find a suitable option for the client. All transactions that we have identified as an independent group of services can be characterized by the fact that they are aimed at transferring the right of use - always and necessarily, or even the right of ownership of real estate for the client. In this case, the realtor’s service is of a “one-time” nature. It is required to conclude one to a maximum of three transactions in the interests of the client.

The process seems more complex when a real estate company provides a client with a range of services for managing his property, purchasing property for the client, and participating in its construction. Here, a real estate company can provide several services; all transactions will be of a civil nature, but all of them are related to the transfer of any rights in relation to real estate. Moreover, the real estate company in this case can provide the client with services that are not related to the conclusion of transactions, but are expressed in the performance by the realtor of other actions that are significant for the client, which are necessary for the client to achieve the ultimate goal of the realtor’s services. In this case, we are talking about such services for clients as the transfer of residential premises to non-residential premises, registration of reconstruction (redevelopment) of residential premises, management of the client’s real estate. All these services for clients are formalized through property trust management agreements. In such cases, the real estate firm acts as a broker, agent or attorney for its client in the real estate brokerage market. It all depends on what authority the client represents for the real estate company and what kind of results he wants to receive from the work of realtors.

In addition, a real estate company can provide the client with services for preparing the necessary documents to change the legal status of the land plot on which the client’s real estate is located. Here we are talking about a whole range of services. This is due to the fact that the previously existing property rights in relation to land plots have changed; according to the current land legislation, for citizens, land plots can be owned or leased. Initially, the Land Code provided exactly this. However, with the adoption of the new Housing Code of the Russian Federation dated December 29, 2004 No. 188-FZ (hereinafter referred to as the Housing Code of the Russian Federation), a law was adopted to put the Housing Code of the Russian Federation into effect. This law provided for the provision of land plots under the right of ownership for HOAs and housing cooperatives. It turns out that now the rights of citizens and participants in housing cooperatives have been violated by the fact that they cannot purchase land plots on a lease basis if they want, but must acquire them as their own. If a land plot is acquired as a property, this will significantly affect taxation issues; citizens themselves will pay the land tax. If a land plot is purchased on a lease basis, then citizens will not pay tax on this land plot, but will pay rent to the owner of the land plot.

There are other types of rights that are subject to re-registration in connection with the adoption of new legislation in this area. For example, the right of lifelong inheritable ownership cannot be transferred in a purchase and sale transaction. Therefore, if the owner of a residential property wants to sell it, he must sell it along with the land, otherwise it is simply impossible, the registration chamber will definitely refuse to register such a transaction. It is necessary to re-register this land plot as a lease or ownership right.

Another case is that to all organizations that were previously only state-owned, land plots were often provided with the right of permanent, unlimited use. As a result of the privatization, non-state commercial organizations appeared that use land plots on the right of permanent, unlimited use. The right of permanent perpetual use was left as a type of real right to land plots, but now, according to the current land legislation, land plots can be provided with such a right only to state and municipal enterprises (municipal unitary enterprise, state unitary enterprise, federal state unitary enterprise). The law on the enactment of the Land Code of the Russian Federation provided for the obligation of these organizations to re-register the right of permanent perpetual use to the right of ownership or lease.

This gives rise to a whole direction, a mass, of work for real estate firms that can provide their services for the re-registration of land rights in all of the above cases, both to citizens and legal entities.

In addition, in all cases when a legal entity or citizen sells their real estate, the right to this real estate (building and land) must also be re-registered to the new owner, and this also creates a wide field for the work of real estate firms. It should be noted that in small provincial towns, real estate firms largely derive their profits from providing this type of service to clients.

The work of a realtor is also associated with the provision of another line of services. All of them are related to the construction of residential buildings. Real estate firms can participate in agreements for the assignment of the right to claim a real estate property that has not yet been completed by construction, agreements for shared participation in construction and other civil law transactions. At the same time, a real estate company can act as a party to a transaction or provide intermediary services without assuming any rights or obligations under the transaction. In addition, a real estate company can, in its own interests, acquire rights under transactions, that is, make a profit from the purchase and sale or assignment of claims, and not from the client’s remuneration.

In cases where a realtor acts as an intermediary for his client, his relationship with the client can be formalized by establishing obligations for a commission, assignment, trust management of property, commission. If the realtor independently participates in his own interests in civil obligations regarding residential premises, then no additional contracts other than those directly transferring rights to real estate are concluded. In Chapter Two of this book, we will consider in more detail all possible transactions with real estate, dividing them into two groups: transactions that formalize the powers of the realtor and the client, intermediary transactions of realtors, as well as transactions in which the real estate firm acts in its own interests and on behalf of your name.

Each real estate company has its own payment rules . Each real estate company chooses its own methods of determining payment for the services of a real estate company. The organization, as a rule, establishes a system of tariffs for customer services. The price of payment for the services of a real estate company can be set depending on the value of the real estate with which transactions are made in the interests of the client, or can be set at a fixed fixed amount. For example, when making transactions for reconstruction (redevelopment), re-registration of rights to a land plot, it is most advisable to set the price of the service in a fixed (fixed) amount; when making transactions with real estate, the price for services is made dependent on the value of the real estate.

The business practice of real estate firms shows that basically the company chooses one method of determining the price and sets it depending on the type of work (services provided to the client).

There are realtors who charge an advance payment for the services provided. In other real estate companies, the client is charged an advance payment. Some realtors only charge for their services after their work is completed. In the latter case, the price is set depending on the value of the real estate, which is the subject of the client’s “order.” For example, 5% of the price for which the client’s apartment will be sold. In this case, it is important to take into account the interests of the client who wants to receive a certain amount from the sale of his apartment, since the realtor can sell it at any price. Therefore, when determining the price of a realtor’s services, it is most acceptable for the client to agree with this payment procedure: the client sets a fixed amount for which he wants to sell his apartment and, if the realtor sells it for a larger amount, then the entire difference in price goes to the realtor, as remuneration for services rendered.

It should be noted that the legal relationship between the client and the realtor regarding the procedure for payment for services, and other conditions of their legal relationship with the client, is subject to the provisions of the Civil Code of the Russian Federation on the provision of paid services (Chapter 39).

Under a contract for the provision of services for a fee, the contractor undertakes to provide services on the instructions of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. Unless otherwise provided by the contract for the provision of paid services, the contractor is obliged to provide the services personally. The client can always find out who provides him with this type of service, since the client will notarize a power of attorney for the realtor who will handle his “business.” If in the power of attorney the client does not provide for the realtor the right of subrogation, this means that no one except the realtor for whom the power of attorney is issued will be able to perform a single legally significant action. Namely, no one will be able to order BTI equipment to a client’s apartment, conclude transactions in the client’s interests, or enter into other civil, housing, land, administrative or municipal legal relations.

The customer is obliged to pay for the services provided to him within the time frame and in the manner specified in the contract for the provision of paid services. In case of impossibility of performance due to the fault of the customer, services are subject to payment in full, unless otherwise provided by law or the contract for the provision of paid services. So, for example, the client hid from the realtor the fact that previously the apartment had undergone reconstruction (redevelopment), for which permission had not been obtained from the authority local government. When preparing documents for state registration of a transaction, a realtor must call BTI employees to draw up a plan. The client becomes aware of the unauthorized reconstruction (redevelopment). Of course, the new buyer will have to spend a lot of money in order to “legitimize” the reconstruction (redevelopment). This fact will certainly affect the purchase price of the apartment, in the direction of its reduction, and then, if the client does not agree to the new conditions for paying for the apartment, then the contract for the provision of real estate services with him can be terminated.

In the event that the impossibility of performance arose due to circumstances for which neither party is responsible, the customer reimburses the contractor for the expenses actually incurred by him, unless otherwise provided by law or the contract for paid services.

Thus, as can be seen from the contents of Chap. 39 of the Civil Code of the Russian Federation, in the norms of civil law regulating issues of paid provision of services, the use of a dispositive method of legal regulation of legal relations. All rights and obligations of the customer (client) and the contractor (realtor) can be changed by the contract for the provision of services.

The Civil Code of the Russian Federation allows the realtor and the client to unilaterally refuse to fulfill the contract for the provision of real estate services, without the occurrence of any reasons that make the execution of the contract impossible. The customer has the right to refuse to fulfill the contract for the provision of services for a fee, subject to payment to the contractor for the expenses actually incurred by him. The Contractor has the right to refuse to fulfill obligations under the contract for the provision of paid services only if the customer is fully compensated for losses.

Services provided by real estate companies are arranged between the client and the real estate organization contract for the provision of services . As a rule, the content of an agreement for the provision of real estate services depends mainly on the nature of the services that need to be provided to the client. If these are “one-time” services, then the legal relationship between the parties (realtor and client) is formalized by a simple written agreement for the provision of services for a fee. If a real estate company is required to repeatedly provide services (for example, trust management of property), then the legal relationship of the parties can be formalized by an agreement on trust management of property, commission, or agency.

The agreement for the provision of real estate services is governed by the provisions of Chapter. 39 Civil Code of the Russian Federation. These provisions of civil law allow, in many respects, the parties to determine legal regulation provision of services, meaning the establishment of specific terms of the contract. It should be noted that the contract for the provision of services, including real estate services, will be a public contract, and therefore it is subject to Art. 426 of the Civil Code of the Russian Federation. In addition, the practice of providing services by real estate firms shows that basically firms offer their clients to enter into contracts with them, the approximate terms of which have already been developed (i.e., through an adhesion agreement). From the contents of Art. 426 and 427 of the Civil Code of the Russian Federation it follows that a real estate firm is obliged to provide its services to everyone who contacts it. The company does not have the right to give preference to one person over another, since, as we have already noted, this is a public contract. The price of the services provided, as well as the terms of the contract, should be set approximately the same for all clients.

An agreement for the provision of real estate services cannot contain more discriminatory conditions than are usually contained in contracts of this kind. A direct prohibition on this can be traced from the analysis of the provisions of Art. 428 Civil Code of the Russian Federation. What conditions are usually contained in contracts for the provision of real estate services?

All terms of the contract can be divided into essential and non-essential. The essential condition of the agreement (if an agreement on it is reached between the parties and it is contained in the text of the agreement) allows such an agreement to be considered concluded. All other conditions may not be included in the text of the agreement for the provision of real estate services, but they will be observed by the parties based on business customs. So, according to Art. 424 and 425 of the Civil Code of the Russian Federation establishes legal regulation of cases when contracts do not provide for a price or duration of their validity. In such cases, the prices and terms that are usually established between the parties when providing real estate services are used.

The only essential condition of the contract for the provision of real estate services is the condition on the subject of the contract. Accordingly, if a client wishes to purchase or sell or exchange any residential premises with the help of a real estate company, then it or its properties must be described in detail by the contract. Perhaps the client wants to get an apartment on a certain floor, in a certain area of ​​the city, this must be reflected in the contract, in otherwise, any residential premises that a realtor offers to his client can be considered proper execution of the contract for the provision of real estate services.

Very often, in addition to the subject matter, contracts for the provision of real estate services indicate the amount of remuneration for services as a percentage of the cost of the property sold for the client, or in the form fixed amount, if these are services of a different kind. As a rule, contracts for the provision of real estate services do not contain a term, or they are not specified by a specific calendar date, but are made dependent on the occurrence of some event or fact. For example, “the company undertakes to sell the client’s apartment no later than three months from the day the privatization of the client’s apartment is formalized” and other options for conditions.

Very often, an agreement for the provision of real estate services contains conditions according to which the client does not have the right to turn to another company for the provision of services with which he has already come to this company. Moreover, in some cases, the text of the contract includes conditions according to which the client will be obliged to compensate the real estate company for material damage associated with such a case. Material damage in this case can be expressed in lost profits; as a rule, an unscrupulous client is obliged to pay the remuneration that he would have paid if he had been properly provided with the service. In general, one can note the relative freedom in the conditions that a real estate firm establishes in relations with its clients.

Collage: Tatiana Voronina

The discussion about the need for a law regulating real estate activities has moved to a practical level: the other day a corresponding bill was submitted to the State Duma.

The draft federal law “On intermediary (agency) activities in the real estate transaction market” was prepared by a group of deputies of the A Just Russia party led by Dmitry Ushakov.

A short course in history

Discussions about the need for a special law dedicated to the activities of the army of thousands of realtors began even before the abolition of licensing, which happened in 2001. By this time, two unsuccessful attempts had already taken place to pass the law “On real estate activities in the Russian Federation.” Both bills with this title were rejected.

In 2005, at the initiative of the Kostroma Regional Duma, it was proposed to return real estate activities to the list of subjects subject to licensing, but also without success.

Since then, with varying degrees of intensity, the discussion has continued at numerous real estate congresses and forums. The arguments of opponents and supporters have now been formulated. Opponents argue that current legislation is sufficient and that a special law would create a new, unsustainable burden for businesses. Supporters of the law insist on the need to cleanse the market of unprofessional and unscrupulous participants and improve the status of the real estate profession.

Naturally, there will be no return to licensing: the state has made it clear that the focus is on self-regulatory organizations (SROs). In this regard, the authors of the bill tried to comply with the spirit of the times.

What are they offering now?

The bill is based on a model of self-regulation of professional activities. At the same time, the property liability of realtors is established.

So, every real estate agent, according to legislators, should be a member of one of the real estate SROs. Conducting real estate activities is allowed “in the form of realtor activities as individual and/or an individual entrepreneur or in the form of a legal entity with whom the realtor has entered into an employment contract.”

From the mandatory contributions of SRO participants (each contributes at least 30 thousand rubles), a fund will be formed for payments to victims. In addition, intermediaries will have to insure their property liability for 10 million rubles.

To become a member of a self-regulatory organization, a realtor must have a higher legal education and (or) work experience in the real estate market, as well as a qualification certificate as a professional agent in the real estate market.

Certification is supposed to be carried out “in the form of a qualification exam conducted by a qualification commission of an organization accredited by the institutional association of realtors.”

“Every day, hundreds of people buying or renting housing become victims of “black realtors,” notes one of the authors of the bill, State Duma deputy Dmitry Ushakov. “Thanks to the Law on Intermediary Activities, the real estate intermediary will be responsible for his actions and answer with his own money to the buyer.”

The optimal number of SROs is from 500 to 1,500 members. National associations will be formed from self-regulatory organizations. At the same time, the bill specifically states that it is optimal to have two such associations.

“As practice shows, the lack of an alternative to a national association with mandatory membership leads to the degeneration of such an association into a self-sufficient bureaucratic structure,” the explanatory note says. Obviously, among other things, the current realities are also taken into account, when both the Russian Guild of Realtors and the National Chamber of Real Estate can claim the status of a national association.

Everyone will be counted

In addition to the unified register of SROs, it is proposed to create a consolidated register of all members of the organization. In other words, all realtors of our vast country will be registered and taken under control.

They are also going to control the media in terms of disseminating information about real estate objects. There are three innovations here.

First: information about a real estate property can be published by the owner of the property, subject to the presentation of the relevant title documents.

Second: information about a real estate property can be published by a realtor only if he carries out his activities in accordance with the requirements of the law (including an agreement with the owner).

Third: “charging a fee by a media outlet or other person for obtaining contact information of the owner of a property should be considered as carrying out intermediary activities in the market for real estate transactions, which in case of violation of legal requirements for real estate activities entails liability in accordance with the legislation of the Russian Federation on administrative offenses "

What do the professionals think?

The bill received negative feedback government. The main reproaches: the absolute need for mandatory self-regulation of real estate activities has not been proven and the provisions of other federal laws, in particular 315-FZ “On Self-Regulatory Organizations,” are duplicated.

The President of the St. Petersburg Chamber of Real Estate, Dmitry Shchegelsky, does not consider this fact critical: the bill can be brought to fruition during its consideration by the State Duma. “The authors of the bill consulted with representatives of the professional community,” he says, “and our wishes have already been reflected in the text. The bill can, of course, be criticized, but I believe that a step forward has been taken. Because, frankly, I’m tired of these endless conversations about what kind of law on realtors is needed. We now have the basis for a substantive and constructive discussion. Opponents would like to say the following: for those realtors and agencies who honestly conduct their business, the new law will not interfere in any way, but for scammers and pseudo-realtors who disgrace the profession, a barrier will be put up.”

Vice-President of the Russian Guild of Realtors Valery Vinogradov was laconic: “The bill is completely crude and does not meet the realities of today’s market. The government did not support him - and did the right thing.”

“The bill is definitely needed,” comments the chairman of the board of the North-Western Chamber of Real Estate, Pavel Sozinov. - Realtors from different regions are preparing their offers. For example, our Omsk colleagues noticed that not all regions will have 500 specialists to form an SRO. At the same time, it is obvious: the authors of the bill proceeded from the fact that these organizations will be formed not only and not so much on a territorial basis. Many agencies today successfully operate in several regions at once, and geographic reference when creating an SRO is not at all necessary. At the same time, the SRO should not become an organization of one agency; even in St. Petersburg there are companies with more than 100 people (the minimum number of 100 members is regulated by the framework Federal Law-315). I agree with the opinion of my colleagues that during certification it is necessary to include representatives of supervisory government authorities in the commissions; we need clear regulations for the relationship between government agencies and professional communities.”

Today, at an evening meeting, the State Duma finally buried the bill “On intermediary (agency) activities in the real estate transactions market.” Let's try to figure out what consequences this could have for the real estate business.

The latest version of the bill, designed to regulate real estate activities, did not pass the first reading in the State Duma; the discussion took only a minute. The project - long-suffering in the full sense of the word - was introduced yet. By the end of last year he should have been deprived of his life. But he hobbled until April 2017. Something went wrong?

Self-regulation and something

Firstly, the bill was introduced by the wrong deputies, or more precisely, from the wrong faction, namely from “A Just Russia”. Moreover, in the new composition of the Duma, out of five authors of the real estate law, only one remained, and he never spoke publicly on this topic. Secondly, and this was noted in all reviews, the bill was aimed at establishing a regime of mandatory participation of real estate agencies in self-regulatory organizations, which contradicts the Concept of Improving Self-Regulatory Mechanisms, approved by the Government of the Russian Federation in December 2015. It clearly states that mandatory self-regulation is possible only in those sectors of the economy where there is “ high degree potential danger of causing... damage to the rights, legitimate interests, life and health of citizens.”

Despite all the horror stories about “black realtors,” real estate activities are not considered potentially dangerous. In addition, critics note, the legal specifics of real estate activities are not defined by the bill.

Right to profession

The most interesting document is, of course, the conclusion of the State Duma Committee on Natural Resources, Property and Land Relations. The most radical version of its reading is this: in the near future, real estate activities will cease to exist. And this is the opinion of the state! What are such assessments based on?

The fact is that in their conclusion, legislators do not simply criticize the bill from the point of view of legal conflicts, but try to analyze current state real estate market and the role of realtors in this market. In particular, it is said that the concept of the bill is morally outdated, and that this is what the market was like 10-15 years ago, when intermediary services were in demand. Today, the market has “changed radically.”

Referring to certain results of large law firms conducting practices in support of real estate transactions from 2006 to 2016, representatives of the committee claim that the number of realtors in the real estate market has almost halved.

Five are cited as “the main reasons for the significant decline in demand for intermediary services in the real estate market.”

Reason number one is Internet search services that allow citizens to search for real estate on their own. Conclusion: you don’t need a realtor to search and select. Reason number two is the development by the state of a network of multifunctional centers (MFCs), which have simplified the procedure for submitting and processing documents for the acquisition and registration of ownership rights to residential real estate. Conclusion: now citizens can make real estate transactions even without having special knowledge and skills; a realtor is not needed.

The third reason is the intensification of sales of housing stock on the open market by the largest real estate owner in Russia represented by state-controlled structures. Today they own about 10% of the country's housing stock. The reason is strange, but the realtor is again out of business.

The fourth argument is also not so hot - “the recently widespread practice of selling real estate at open auctions” - so be it.

But reason number five is already very, very interesting: the already notorious Sberbank Domklik. However, the legislator does not mention this name, but speaks of the Sberned center, which includes “services for electronic registration transactions with housing, purchasing apartments with a mortgage, as well as legal examination of real estate properties put up for sale and verification of all participants in the transaction.”

And as a bright finale to this part of the conclusion, the following deadly phrase sounds: “It is unlikely that the few real estate companies remaining on the market will be able to provide real competition to such serious opponents.”

Reaction of the real estate community

Having recovered from the shock, representatives of “a few real estate companies” began to speak out.

“The conclusion made by the relevant State Duma committee forces me to state that its members absolutely do not represent the essence of real estate activity. Of course, what Sberbank offers is good, because, by improving its tools, it helps citizens resolve issues related to purchasing real estate with the help of a mortgage. However, this in no way replaces the work of a realtor. I’ve said it many times already, but I’ll repeat it: a realtor, first of all, is a professional negotiator who agrees on the terms of the transaction between the seller and the buyer, and most of the transactions that are currently taking place in the real estate market are alternative or counter, when the client sells something old and buys new housing,” says Alexander Romanenko, president of the Advex corporation.

At the end of his speech, the patriarch of the domestic agency business called for “at least” the return of licensing for real estate activities. But, in general, everyone understands that such a scenario is unlikely.

According to the President of the St. Petersburg Chamber of Real Estate, General Director of the Benois Academy of Sciences Dmitry Shchegelsky, if you believe the conclusion of the committee, the state does not need realtors.

“Deputies believe that previously citizens, fearing fraud, turned to realtors, but now there is no longer a need for their services. Have our “black realtors” disappeared? - he is perplexed. - Committee members do not understand what the specifics of agency activity are. They believe that realtors are needed to submit documents to register a transaction. If the state has such an opinion in relation to realtors, then it should be consistent and exclude our activities from 115-FZ. In many ways, realtors themselves are to blame for what is happening. We are divided and the market is deteriorating. But he is already 25 years old.”

EXPERT OPINION

Valery Vinogradov, vice-president of the Russian Guild of Realtors

Regardless of when and what kind of law is adopted, given the current state of political life and the country’s economy, it will deal a blow to the civilized real estate community. Moreover, both organizationally and financially. Therefore, in my opinion, it is probably good that such a situation has developed today. Based on the text of the conclusion of the State Duma Committee on Property, we saw the level of competence of the people who will pass the law for realtors. Today's civil law allows you to conduct real estate activities and ensures freedom of competition. And voluntary self-regulation shows everyone - both clients and our market partners - who is a professional.

EXPERT OPINION

Alexander Ginovker, vice-president of the Association of Realtors of St. Petersburg and Leningrad Region

I believe that all this noise around the bill is caused more by the desire of individuals to promote themselves than by real legislative work. No matter how good the law is passed today, it will not solve any problems in the market. There are huge “gray” and “black” segments of individuals - both individuals and legal entities - who provide services without advertising their activities at all. It costs nothing to hold them accountable. But no one was doing this and in those years when there was licensing, no one is doing it now. Until the state begins to toughly combat illegal entrepreneurship, the new law will not help. Therefore, as a cautious skeptic, I will say this: no law on real estate activities is better than a bad one. Which will drive part of the legal business into the shadows.