Stages of donating a share of a house and land

According to the Housing Code of the Russian Federation, a residential private house is understood as a separate building containing residential rooms and non-residential (domestic) premises. In general, the house must satisfy housing and construction standards, then the Housing Inspectorate issues permission to use the premises for permanent residence.

Private houses can be located within the boundaries of a populated area or outside it, which makes it possible to classify them as dachas. Like privatized apartments, houses can have one owner or several. The house can become the property of the co-owners by inheritance, after registration of the sale or purchase or deed of gift.

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To transfer property for free possession to another person - a close or distant relative, an outsider, it is necessary to draw up a donation agreement for a part of the house. Most often, along with the house, the owner formalizes a donation of the land on which the house is located; these two pieces of real estate are considered indivisible by law.

Thus, you cannot give part of a house to one person and land to another. To formalize a deed of gift, the desire of the owner alone is not enough; the donee must agree to accept the gift and sign a document on the basis of which the rights to own the property will be re-registered to the new owner.

In order for the owner to give a part of the house to another person, he himself must be the full owner of the entire building, its part or share. A gratuitous transaction, which includes a deed of gift, is understood as a unilateral transfer of property when, in response to the donor’s gift, the recipient does not owe him anything.

It is possible to draw up an agreement with certain conditions; the donor independently decides whether the property will pass into the hands of the donee immediately after the transaction is completed or after the occurrence of a certain event, with the exception of his death.

A significant difference between a deed of gift for a part of the property is a specific indication of its name, location, characteristics and other parameters. A piece of real estate received as a gift is legally indivisible, that is, it cannot belong to anyone other than the recipient.

If part of the house is gifted to one of the spouses, then even after the divorce process it cannot be divided as jointly acquired property.

Property donated is considered income for the donee, therefore he is obliged to pay tax to the state based on its value, and gift agreements between close relatives are not taxed

Main concepts

In 32 ch. Of the Civil Code, the legislator regulates the donation procedure, but at the same time he does not indicate exactly how to go about it for both parties to the transaction. The only indication is that after registration of the deed of gift, state registration of property rights is necessary. These rules have not changed since the release of regulations governing real estate issues, which is important for citizens who plan to complete a transaction in 2020.

Citizens should also remember that after the transaction is completed, when the new owner receives a registration certificate, it will be very difficult to terminate the contract, although the legislator reserves this right for the donor, his relatives and the donee. Moreover, termination without mutual consent of the parties occurs only in court after providing compelling reasons that are specified in regulations. Sometimes a court may declare a transaction void or invalid if it turns out that it was carried out in violation of the law.

Chapter 32 - Giving

A special feature of the deed of gift is also the fact that the gift, in this case part of a private house (dacha), must be transferred to the donee during the life of the donor. If after execution of the document the donor died suddenly and the recipient did not have time to undergo state registration, then the transaction is considered void.

In another case, it will not take place if the donee first signs the deed of gift, and then changes his mind about accepting the gift and writes a refusal. In any case where property is required to be returned to the original owner, it must be returned to the donee in the same condition in which he received it.

Registration of donation of a residential building in Rosreestr

The transfer of ownership of a share of a residential building when making a donation is subject to the state registration procedure in accordance with the requirements of Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it” (Federal Law No. 122). The registering authority is the Office of Rosreestr for the constituent entity of the Russian Federation (Government Decree No. 457 of June 1, 2009 “On the Federal Service for State Registration, Cadastre and Cartography”).

The procedure itself is regulated by Art. 13 Federal Law No. 122 and consists of several stages:

• acceptance of documents;
• their legal expertise;
• making entries in the Unified Register of Rights and issuing relevant documents to applicants.

It is necessary to dwell in more detail on the first of these stages - acceptance of the submitted documentation . Among such documents are Art. 16 - 17 Federal Law No. 122 name the corresponding application and other documents necessary to carry out this procedure. Other documents when donating a share of a residential building include the following:

• share donation agreement in three copies (according to the number of parties plus one for the registering authority);
• identification documents of the parties to the transaction (passports);
• the donor's title document for the residential premises;
• receipt of payment of the state duty (its amount in accordance with paragraph 22, paragraph 1, article 333.33 of the Tax Code of the Russian Federation (TC RF) is 2000 rubles );
• technical documentation from BTI;
• an extract from the house register or a certificate from the passport office about persons registered in the residential premises;
• consent of the guardianship and trusteeship authorities, in the case where minors or incompetent persons live in the residential premises, when such a transaction may affect their legal rights and interests;
• documents confirming the authority of the representative of the party to the transaction;
• in some cases, a notarized consent of the second spouse and an act of acceptance and transfer of property may be required.

The second stage of registration consists of legal examination of documents . By it, the law understands the establishment of the absence of any contradictions in the declared and existing rights to the share of a residential building, the legality of the transaction (if it is not made in notarial form), the validity of the documents, as well as the grounds for suspending registration (Order of the Ministry of Justice of the Russian Federation No. 184 of 01.07. 2002 “On approval of methodological recommendations on the procedure for state registration of rights to real estate and transactions with it”).

At the final stage of registration, a corresponding entry is made in the unified register of rights, i.e. transfer of ownership from one person to another for a share of a residential building, and issuance of a title document to its new title holder (as a rule, this is a certificate of state registration of rights ).

Design details

When drawing up donation agreements for part or all of the property, the legislator establishes a certain list of persons who may or may not be parties, for example:

• The donor must be aware of what he is doing, that is, be of sound mind, be mentally healthy. Sometimes a notary may require a medical examination of the donor.
• The donor can be an individual or a commercial organization, but only citizens are allowed to act as recipients.
• The recipients cannot be doctors, educators or civil servants if the donor is an outsider who is their patient, ward, or subordinate. In fact, in this case, the legislator indicates that the presentation of a gift should not be a thank you for work performed. For example, if a doctor saved the life of a patient, the recovered person cannot gift him with movable or immovable property.
• Only legally capable donors can take part in the transaction. Incapacitated persons include minors under 14 years and minor children 14–18 years of age . Only their legal representatives can accept a gift for them.
• Other situations provided for by law.

To draw up a gift agreement, it is necessary to collect documents from the donor and the recipient. It is best to carry out the transaction through a notary, although it is also possible without his participation. Both the donor and the donee are allowed to take part in the transaction by a trusted person, but a power of attorney must be issued to him.

After the contract is signed, it is necessary to submit a package of documents for state registration of ownership rights to part of the house by the new owner. The donor and the donee must transfer the documents together; if one of the parties is a minor, then the presence of his legal representatives is mandatory.

When registering property rights to the new owner, you will need to pay a state fee.

How much does a deed of gift for a house cost?

Concluding a donation agreement for a house and land involves paying a state fee. According to the old rules, the parties to the transaction paid the following costs :

1. registration of the agreement - 500 rubles each from the donor and recipient;
2. certificate of ownership – 1000 rubles per recipient;
3. notary 's expenses .
4. After making the changes, prices have changed:
5. drawing up an agreement - 500 rubles from the recipient;
6. certificate of ownership – 1000 rubles per recipient;
7. notary 's expenses .

According to the new rules, the donor is exempt from all duties. An agreement to donate a share of a house is recognized as a gratuitous transaction, and all costs of registration are borne exclusively by the recipient.

Income tax is calculated based on the value of the donated real estate. By law, close relatives of the donor are exempt from tax deductions.

What does a contract for donating a part of a house consist of?

The donation agreement, which is drawn up in writing, states:

• information about the parties involved in the transaction based on passport data or birth certificate (for minors);
• data of the legal representatives of the minor, as well as documents that can confirm their status;
• the subject of the contract, it is a part of the house with a specific description of the premises, their sizes and various characteristics;
• as a separate line, the plot under the house with the necessary characteristics, if it is also the object of a donation;
• the rights and obligations of the donor and the donee, there may be conditions under which property rights must pass to the new owner; in their absence, the contract is considered to come into force instantly;
• the procedure for transferring part of the house, the phrase must be indicated that the deed of gift is endowed with the legal force of an act of acceptance and transfer of property; if it is missing, then it is assumed that a separate document will be drawn up;
• liability of the parties;
• procedure and grounds for termination of the contract;
• various conditions: dispute resolution, force majeure, etc.;
• place of the transaction;
• date of drawing up the contract;
• signatures of the parties.

When transferring a house without a plot or with land, it is necessary to indicate exactly what is being transferred into the possession of the donee. It is also important to indicate what the owner is transferring - a separate share to which he has rights, or a part of the house where he has equal rights and obligations with the other owners.

All data in the contract is entered from documents presented by both parties, the main ones include:

• passports, birth certificates;
• cadastral and technical passport for real estate;
• property documents.

Before going to the notary, it is recommended to prepare a draft gift agreement. Its standard sample can be downloaded on the Internet, but it is best to prepare a version of the contract together with a qualified lawyer, this will help to avoid possible negative consequences in the future.

It will be important to include in the contract information that:

• the donor and recipient are of sound mind and capable;
• the transferred property is not the subject of disputes, is not officially promised to other persons, is not pledged, etc.;
• a deed of gift is an ordinary agreement between the parties or a consensual contract, when the donor binds himself with a promise to present a gift in the future;
• there are persons whose rights may be infringed by the execution of this agreement;
• in the part of the house that is transferred to the donee, such and such citizens are registered (not always required);
• another.

To whom and how to transfer

Transfer of property on the basis of a deed of gift can be made to complete strangers. Only in some cases described above, the donor cannot do this. Although in fact, donation occurs most often between persons who are related, and close ones at that.

One of the categories of donees includes minor children under 18 years of age . The procedure for donating to them has its own characteristics.

Child

A donation can be made in favor of a minor, but his legal representatives must give written consent to the transaction if the child is under 14 years of age . Upon reaching the age of 14, he can independently agree to accept the gift.

The preparation of documents for concluding an agreement, the registration procedure with a notary and the subsequent registration of property rights to a minor can only be carried out by legal representatives (parents, guardians, adoptive parents, representatives of institutions where the child is being raised).

When a child turns 14 years old , he is allowed to sign the gift agreement on his own, but it must also contain the signatures of legal representatives. When submitting documents for registration of property rights in Rosreestr, a child who has reached the age of 14 can also independently write a statement that he does not object to receiving the gift.

Giving a share of an apartment to a minor child is becoming an increasingly popular procedure today. Is it possible to terminate a gift agreement? Find out in this publication.

For minors, such an application is completed by legal representatives. According to the law, the child receives ownership rights to part of the house, but in fact, until he comes of age, his legal representative will manage the property, except for sale, gift, exchange and other transactions.

If both parents are present at the transaction, then the permission of the guardianship authority is not needed to draw up a deed of gift; otherwise, its consent is required. When one of the parents wants to transfer his share to the child, he is not obliged to inform the other about this.

One of the parents can take permission from the guardianship authority and invite a civil servant to be present at the conclusion of the deed of gift. In this case, the parent is the donor, and the receiving party on behalf of the donee is an employee of the guardianship authority. In this case, the transaction can be completed without the presence of the second parent.

A deed of gift for a child is drawn up in the same way as any deed of gift, except that information is entered about the donee, who is a minor, and his legal representatives present at the transaction.

It is deeds of gift for children that are most often drawn up with the conditions that the property will not be transferred to them easily when they turn 18 years old, but:

• after graduating from a higher educational institution;
• marriage;
• and others.

It is necessary to take into account that a minor can be a donee, but a donor only after reaching the age of majority.

Relatives

A donation in favor of the donee, from a legal point of view, is an alienation of property. Regardless of who the donor is, the form of the agreement and the procedure for the transaction do not differ. The difference between a transaction between close relatives and one conducted between strangers occurs at the stage of paying income tax.

For the donee, income is the property received, but only transactions between strangers are subject to taxation. Moreover, distant relatives of the donor are classified as strangers in this case.

The legislator considers the following to be close:

• children;
• parents;
• spouses;
• grandchildren;
• grandparents;
• brothers and sisters.

For the donor, the most convenient option is a situation where a close relative is already a co-owner of one part of the house. When the contract is drawn up, the second one will simply pass to him and he will become the full owner of the entire building.

There are often situations when, in order to avoid paying taxes to the state, relatives draw up several deeds of gift. For example, it is impossible to give a part of a house to a nephew without taxation, so the aunt should draw up a deed of gift in the name of her brother, the nephew’s father. Then the father will be able to issue a deed of gift for his son. In both cases, you do not need to pay income tax.

Things to consider

When drawing up a contract, both parties must take into account that:

• donating a part of a house with a plot has its own characteristics;
• the share can be donated subject to certain conditions;
• The income tax rate differs for different categories of citizens.

Land plot

The land is the same real estate as the building erected on it. It can be sold, donated, bequeathed. The only condition is registered rights to it. It often happens that the land belongs to a cooperative or an enterprise that has allocated plots for development to employees, and the houses that were built there are registered to the owners.

In another case, the owner of the house received land from the state many years ago, and has not yet formalized the privatization, but he built the house. Thus, the owner will not be able to make a deed of gift for the house and the plot at the same time.

In this case, the citizen will first have to receive the land for free use from the official owner, although in fact he has been managing it for a long time. If the house belongs to several owners, then it is logical to divide the plot of land under it between them. The donor should allocate his share of the land, register ownership rights to it, register it with the cadastral register, and only then donate it along with part of the house.

The land and the house on it are integral parts of each other; by law they must belong to the same person. The donated land plot, like the house, is the indivisible property of the new owner, and cannot be divided even in the event of a divorce.

In the deed of gift, part of the house and the land under it are described separately. It is necessary to indicate the exact location, dimensions, boundaries, cadastral number, category and others. Also, when drawing up a contract, you should attach documents for the land: property rights and cadastral passport, consent of the co-owners.

As with the building, information about the plot is entered that it does not have an encumbrance, is not pledged, etc., and after the deed of gift is issued, the new owner will have to separately register the ownership rights to the house and plot

Share

If desired, the donor can draw up a deed of gift for a share, and not for the entire house, which is important when the recipient is a son or daughter. When transferring a share, the permission of other owners, if any, is not required. When a part of a house is donated, the co-owners must give permission to formalize the deed of gift.

The contract for a part of the house should indicate what it includes, for example:

• number of living rooms and utility rooms;
• area of ​​each room;
• on what floor the premises are located;
• another.

If we are talking about a share, then first it should be isolated from the general structure, and then only rewritten. In a private house, it is allowed to allocate a share if the owner or co-owners come to an agreement, remodel and equip a second entrance. A separate part of the house must also be equipped with communications for supplying gas, water, and electricity.

The room inside should have living rooms, a bathroom, and a kitchen. The division of the house can only be carried out after a technical examination. When the share is allocated and the documents for it are drawn up, then it can be donated.

If the owner of a private house, for example, is one citizen, and he decides to give a share to his son, then first he makes a division of the house, where both shares will belong to him, and then he transfers one of them to his son. A deed of gift for a share is no different from an agreement drawn up for a part. It will have to clearly describe the premises being transferred and what is included in it.

Taxes

Only gift agreements between strangers, which also include distant relatives, are subject to taxation. The donee is required to pay income tax; if he is a minor, then his legal representatives do this for him.

Citizens who are:

• residents pay 13% of the value of the property received;
• non-residents – 30%.

To calculate the tax amount, the market value of part of the house is accepted; it can be indicated by the donor in the contract. But for the tax office this figure will only be approximate; they will definitely check it. After receiving the property and registering ownership rights, the new owner next year, before April 1, is required to submit a declaration calculating the amount of tax.

He pays it until July 15 of the year following the reporting year in which the income was received. If a plot of land was donated along with the house, then the tax amount will have to be calculated based on the total cost.

How to properly formalize the donation of a share of a house and land

With housing

A person who is going to donate a share of a house and a plot of land must understand that these are 2 different objects. According to current legislation, their owners may be different. Moreover, each of their objects can be separately in shared ownership. In practice, this situation occurs quite often.

If you familiarize yourself with the current legislation, it turns out that land and house are inextricably linked. Thus, objects belong to one owner; their separate donation and sale cannot be carried out.

The condition must be met regardless of how many people have shares in the house. So, if a person wants to donate only part of a land plot without a share in housing, such manipulation will not be possible. Rosreestr will not agree to register the transaction.

The owner of the house has a pre-emptive right to purchase the land on which the house stands. If there are several owners of the building, the purchased plot, like the property, will be registered as shared ownership.

To kid

A child can also act as a recipient. Moreover, if the little citizen is not yet 14 years , all manipulations are carried out on his behalf by his parents.

If they do not agree to such a gift, it is impossible to influence the procedure. But donating on behalf of the children will not work. Such manipulation is strictly prohibited by current legislation.

To a relative

Most often, the donation transaction is concluded between close relatives. Current legislation allows such manipulations to be carried out on preferential terms.

So, if close people take part in the process, he may not pay income tax. However, it is necessary to take into account the degree of relationship.

The possibility of receiving real estate as a gift without paying tax is present only if the following persons participate in the transaction:

• spouses;
• parents;
• brothers and sisters;
• children.

In all other cases, you will have to pay taxes for performing the action on the usual basis. In favor of the state, it will be necessary to transfer 13% of the value of the real estate transferred free of charge.