Who can be officially recognized as close relatives?
First of all, it will be necessary to determine who receives the legal right to be part of the circle of “close relatives”.
This understanding will be useful in determining the list of relatives who are legally exempt from the mandatory payment of tax when drawing up a deed of gift or will.
To determine the degree of relationship, lawyers use the provisions of Article 14 of the Family Code of our state.
It states that these may be called:
- relatives in a descending or ascending direct line (grandparents, parents, children, grandchildren);
- blood (full) brothers and sisters, as well as half-sisters and brothers (those who have the same mother or father).
When drawing up a gift agreement, Article 54 of the Family Code, which includes: spouse, does not apply.
This degree of relationship refers to the relationship of “family members” and is considered only by the criminal procedure code.
Taxes when donating a plot:
If the transaction was concluded between close relatives, the recipient of the gift will not need to pay income tax.
In other cases of donation of a land plot, the Donee must pay a tax - 13% of the value of the land plot.
Thus, it is most profitable to enter into land donation agreements with close relatives, because they do not need to spend money on paying taxes on income in the amount of 13%.
However, the Donee must submit an income tax return. This is necessary even if the Donee is exempt from paying tax as a relative.
Peculiarities
A special feature of the deed of gift is its one-sided procedure. The donor initially assumes all risks associated with the execution of such a document.
Important: if additional clauses are included in the contract, it may be considered void. The recipient has the legal right not to comply with additional terms included in such a document.
Registration of a transaction excludes any additional explanation of the reasons for its preparation. True, there are exceptions. Explanations may be required if a deed of gift is issued in relation to:
- legal entity;
- gifting between the donor and the recipient, representing commercial firms.
Such situations between close relatives do not actually occur and are not considered in such agreements.
In addition to tax preferences that relieve blood close relatives from paying tax on such a transaction, it is convenient because it allows for the execution of an agreement between stateless persons and persons with citizenship of other states.
A convenient feature of such an agreement for the parties is the prospect of immediate transfer of the property to the new owner, as well as a delayed transfer option.
For example, transfer of property registration after the death of the donor.
Important: you can refuse to fulfill such an agreement only before it is signed.
Sample agreement for donation of land and house between relatives. Donation agreement for a share of a house and a plot of land between relatives: sample.
Legal basis for donation
The owner has the legal opportunity to dispose of his property: donate, bequeath, sell or lease. To carry out legal actions, the owner of the property must have a state-issued certificate confirming his rights. In the case of private home ownership, two certificates will be required to participate in legal transactions - for a land plot and a house.
A land plot must undergo state registration, after which it is considered property. According to current legislation, the transfer of ownership can be carried out simultaneously for a house and land, so first of all you will need to deal with the existing documents establishing the right to the site.
The deed of gift is drawn up in two copies for each participant in the procedure; it can be written in any form or on a standard form. The signatures of the donor and the recipient are required to record the fact of familiarization with the document. The consent of the recipient implies that the citizen understands the ensuing rights and obligations of the new owner. Notarization is not required, but this can be done if participants wish.
A gift agreement may include certain conditions and obligations of the parties that do not contradict legal norms.
Notarization is desirable in cases where problems may arise from other relatives challenging the actions of the donor. The specialist will certify the donor’s legal capacity, explain to him the essence of his actions and warn him against a rash act. If the notary doubts the legality of the gift, he has the right to request a medical certificate on the date of execution of the contract. It is recommended to contact a notary of the area where the object of donation is located.
If the house and plot have several owners and are jointly owned, then you can dispose of your share by first making an allocation. Jointly acquired property during marriage can be donated with the notarized permission of the other half. It is permissible to allocate your share, which according to standard provisions is half, and then dispose of it at your own discretion.
What documents will be required?
The gratuitous transfer of property involves a minimum package of documents necessary for the implementation of transactions for donating a land plot to a relative:
- passports of the donor and recipient;
- title documents for the house;
- when transferring a land plot adjacent to a house under a donation agreement, title documents for the land plot;
- description of the house and, if necessary, land plot (size, area, number of residential and utility rooms, etc.);
- addresses of the parties to the transaction.
In addition you will need:
- for married parties to the transaction, a marriage certificate;
- in case of divorce, documents confirming the dissolution of the marriage;
- if there is a marriage contract;
- if there is a spouse, his consent to the transaction;
- all documents that are available for the house;
- BTI passport;
- a certificate received from the tax office confirming that there are no debts on the house and land;
- extract from the house register;
- certificate of absence of debts for housing and communal services;
- if necessary, permission from the guardianship authorities.
Important: such a document must necessarily include confirmation of the fact of relationship and its degree.
Basic terms of the land donation agreement
The land plot belongs to the category of real estate. Consequently, it is subject to general requirements for the execution and implementation of a gift agreement. Such a transaction means the gratuitous alienation of a plot of land owned by a citizen to another person.
The gratuitous nature of the transaction means that the donor transfers an object belonging to him without demanding payment for it and without putting forward counter-conditions for the provision of certain services. If this requirement is violated, and the donor nevertheless puts forward in exchange for the gift the fulfillment of the conditions specified by him for payment or provision of services, then the very concept of the gift agreement will be violated, and it must be recognized as legally void.
Expert commentary
Leonov Victor
Lawyer
An agreement on the transfer of a plot as a gift may oblige not only the donor, but also the one to whom he transfers this plot. He may be subject to responsibilities in possession of the donated land that limit its use. This condition is not a counter-condition and does not contradict the gift agreement, because concerns the property, not the donor himself. For this reason, it is important that not only the donor himself agrees to the transaction, but also the person receiving the gift from him.
A feature of a deed of gift for a land plot is the need to alienate it together with the buildings located on it, if they are owned by one person.
This provision is reflected in Article 35 of the RF Land Code. It means that the donor, when drawing up a deed of gift for a land plot, must simultaneously formalize the gift of the building located on it, if it is registered as an independent piece of real estate.
The donor of the plot can transfer his functions to an authorized person who has the right to act under a power of attorney to conduct a gift transaction. It must indicate the object of the transaction with its legal address, as well as the details of the person to whom this object is intended to be transferred under the contract.
How is it compiled?
The uniqueness of this document is the ability to compose it yourself.
True, you will need to have certain legal knowledge in order for the document to be recognized as valid.
There is no dependence; a donation of an entire part of the property, a donation of land to a relative, or a donation of a share of a land plot is formalized.
Only the husband or wife must give their spouse consent to such a transaction. All other shareholders do not have to do this.
The procedure for registering a gift of a house and a land plot to a relative, a deed of gift for a house, a land plot or a house with a land plot are no different.
Both parties to this gratuitous transaction are involved in drawing up the gift agreement. It records the fact of the donor’s gratuitous transfer of a certain piece of real estate to the recipient with a detailed description of the transferred property with a link to the application. The appendix provides a cadastral plan (drawing) of the property indicating the cadastral number.
A clause of the donation agreement becomes a mandatory indication of the value of the property, indicating the data of the appraisal report. It also confirms that the object being donated is not under pledge or other encumbrance, that it is not in dispute or under arrest, and indicates that there are no restrictions on use.
The agreement is signed by both parties to the transaction indicating passport data in the presence of a representative of the registration authority.
Important: to properly complete the transaction, you will need to separately submit title documents for the house and land. Including documents confirming their value.
State registration of a residential building donation agreement
In order to donate a residential building, it is not enough to conclude a donation agreement and transfer the keys to it to the other party. The transfer of ownership of real estate from the donor to the donee is subject to mandatory state registration with the authorized bodies (Article 12 of the Federal Law “On state registration of rights to real estate and transactions with it”). For this purpose, a number of basic documents are prepared and submitted:
- statements from the donor and donee, respectively, about the transfer and registration of ownership of the house;
- receipt of payment of state duty;
- identification documents of the donor and the recipient;
- deed of donation of a residential building, the number of copies of which depends on the number of parties to the transaction, as well as one for the registration authority and one for the notary in the case of notarization of the agreement;
- certificate of the donor's ownership of the house.
In each specific situation, some documents are submitted additionally. It could be:
- written consent of the second spouse to donate a house that is in their joint ownership, which requires notarization;
- permission from the guardianship and trusteeship authorities, provided that minor children are registered in the house;
- written consent of the legal representative or parents of a minor child aged 14 to 18 years or an incapacitated citizen, if they are a party to the agreement;
- permission from the guardianship and trusteeship authorities, if such persons (14-18 years old) are on the side of the donor;
- documents relating to the encumbrance of the house, if it is under a mortgage, pledge, etc. ;
- a notarized power of attorney from the representative of the party to the transaction and a copy of his passport.
The Federal Law has established a deadline for registering the transfer of ownership of real estate, which is 10 days from the date of submission of documents to the registration service. During this time, their legal examination and verification of the legality of the donation transaction is carried out. After which, the donor and the donee are each given a copy of the agreement with a registration inscription, and the donee is also given a certificate of ownership of the donated house.
Important
From this moment the donation is considered a completed process. Ownership of real estate has passed from the donor to the donee. The latter, as the legal owner of the residential building given to him, has the right to dispose of it in any way that does not contradict the law.
Options for a separate registration of land donation agreement
can also be drawn up separately. Then it will need to be assessed separately from the house, taking into account the adjustment of the value of the plot, considered separately from the residential building standing on the territory, which is necessarily taken into account in the final cost, in most cases downward.
Form of agreement for donating a plot of land to a relative.
Deed of gift for a plot of land between close relatives: form.
Sample contract for donation of land between relatives.
Donation agreement for a share of land: sample.
Certificate of acceptance and transfer of land: sample.
In the case where a donation simply involves the transfer of a plot of land to a new owner without a residential building located on its territory, an assessment of its value and a clear definition of the boundaries of the territories will be required.
Cancellation of deed of gift for a share of land
Cancellation of a DD is possible after the death of the donee, if the condition is specified in the document.
Be sure to read it! Who are considered disabled children of the testator?
There are other grounds for annulment of a transaction in court:
- the donor signed the agreement under the influence of blackmail, threats, psychological or physical violence;
- the former owner did not understand the consequences of the transaction, was incapacitated or had limited legal capacity at the time of signing the DD;
- the donee made an attempt on the life and health of the donor and his relatives.
The heirs of the donor who died due to the fault of the donee also have the right to demand cancellation. A court verdict that has entered into force will be required. This right is also granted to creditors of the former owner of the share if it was purchased within six months from the date the bankruptcy decision entered into legal force, and the donated land was purchased with money from business activities.
Important! According to Art. 35 of the RF IC, the spouse of the donor has the right to demand the cancellation of the DD if the share was donated without his consent certified by a notary. The statement of claim must be filed within 12 months from the moment the illegal transaction became known.
