Donating a share of an apartment to a minor child

Author of the article: Anastasia Ivanova Last modified: January 2020 1318

An agreement implying the gift of a share in an apartment to a minor must be drawn up in accordance with the law and taking into account the nuances relating to transactions in which children are participants . Where to go to get help in drawing up a deed of gift and what formalities will need to be followed so that the child can enter into an inheritance in the future, read below.

Features and difficulties

There are many features in giving.

For example, regarding the subject of this transaction.

On the one hand, it is the donor, that is, a person who is related to the recipient, perhaps a relative, but perhaps not.

It is also necessary to understand that the second party in this situation is a minor who cannot yet, in the full sense of the word, be responsible for his actions, and therefore, in fact, cannot independently accept the gift.

This should be done for him by his legal representatives - guardians and trustees .

Another feature of the gift is that it does not require formal registration of the contract by a notary.

All you have to do is download the contract form from the Internet and fill it out. You can also draw up a preliminary agreement yourself and then consult with a lawyer.

Notarization in this case is only your whim.

Form of agreement for donating a share of an apartment to a minor child (sample).

Is it possible to give an apartment to a minor child, registration of the transaction

1. The transaction does not provide for any obligations to the donor of the apartment, that is, he does not need to be looked after, maintained, etc. P . In other words, the contract implies an unconditional and gratuitous gift.
2. A deed of gift has a significant advantage over a will, consisting in the guaranteed receipt of an apartment by the person to whom it was intended under the contract. If the donor dies, none of the relatives will be able to sue the donated living space.
3. The gift agreement cannot be revoked. This means that the donor cannot change his decision and rewrite the contract to another person.
4. The services of a notary are not required for registration.
5. The State Register requires a minimum of documentation and issues an agreement within 5 days.
6. A donated apartment cannot serve as compensation for debt obligations.

1. If parents have issued a deed of gift for their minor child and then decided to sell it, it is impossible to complete the transaction before the owner of the living space comes of age.
2. The donor cannot note in the deed of gift such a convention as an annuity agreement.

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In what case is it possible?

Donating a share of an apartment to a child is possible subject to certain important conditions specified in the Civil Code.

So, the first and most important of them is the fact that the minor has a legal representative . Otherwise, he cannot accept the gift on his own.

Also, if the gift of a share in an apartment to children occurs in a family, then both spouses must agree to this transaction. For example, a father bought an apartment and decided to give its share to his son from his first marriage. But his current wife is against such an action and does not give her consent.

Due to the fact that all property acquired during marriage is jointly acquired, the transaction will not take place due to the lack of consent of one party.

Cost of service No. 1 - drawing up and certification of a share donation agreement

Additionally: if the owner bought the apartment while married, then when donating a share, the notarized consent of the owner’s spouse will be required - clause 3 of Art. 35 IC RF. Any real estate purchased during marriage is considered the joint property of BOTH spouses, even if the real estate is registered in the ownership of only one of the spouses - clause 2 of Art. 34 RF IC.

SHOW EXAMPLES ↓ Example No. 1: Alexander bought an apartment before marriage and decided to give a 1/2 share to someone. To make a donation, it is not necessary to contact a notary. His wife has nothing to do with this apartment.

Example No. 2: Andrey bought an apartment before marriage and decided to give 1/3 shares to his wife and child. When donating, you can do without a notary.

Example No. 3: Oksana inherited an apartment from her mother during her marriage. If she wants to donate a share (no matter to whom), then a notary is not required. Her husband has nothing to do with this apartment.

Many on the Internet write that once a share is given, a notary is always needed. It is not true. I specifically asked questions about this in support of Rosreestr. The answers are below. And if the MFC requires you to have a notarized gift agreement, and you are sure that the agreement is suitable in a simple form, insist on accepting the documents. MFC employees do not have the right not to accept documents. If anyone can refuse, it is the Rosreestr registrar to register the donation transaction itself.

Answers from Rosreestr

Moscow

St. Petersburg

After a citizen has been given a share, he can safely register in the apartment.

I strongly advise against looking for gift agreement templates on the Internet and drafting one yourself. Almost all the templates there are outdated or generic. Understand that almost every gift transaction is unique, and typical templates do not have the items that need to be included in each specific case. Therefore, contact a lawyer, because...

• A) Drawing up a contract - from 3 to 9 tr. In each region, the price for compilation differs because it is not determined by law. It is established by the local notary chamber at a general meeting. In addition, the price changes every year. For example, at the time of writing in Moscow - 6 thousand rubles, in St. Petersburg - 4.8 thousand rubles, in Arkhangelsk - 8.8 thousand rubles. This is called technical and legal services. Is it possible to bring your own gift deed and not pay for drafting?
• B) Notarization (certification) of the agreement - 0.5% of the transaction amount (clause 5, clause 1, article 333.24 of the Tax Code of the Russian Federation). Usually, when donating a share, notaries take its cadastral value for the transaction amount. Is it possible to indicate another value instead of the cadastral value?
  cost of the certificate = 0.5% * cadastral value of the apartment share

  The cost of the certificate also has a framework - it must be at least 300 rubles. and no more than 20 tr.

  First you need to find out the cadastral value of the entire apartment - instructions. Next, multiply the cadastral value of the apartment by the size of the share being donated. For example, a 1/3 share is given, the cadastral value of the entire apartment is 3.4 million rubles. It turns out the cadastral value of the share: 1/3 * 3.4 million = 1.33 million rubles.

  SHOW EXAMPLES ↓ Example No. 1: Andrey and Marina have an apartment in Moscow, where each has a 1/2 share (shared ownership). Andrey decided to give his share to Marina. In their case, a notary is required. The cadastral value of the apartment is 4.7 million rubles. For drawing up the agreement, the notary charged them 5,400 rubles, and for its certification - 0.5% * (4.7 million * 1/2) = 11,750 rubles. Total RUB 17,150.

  Example No. 2: Marina and Olga have an apartment in Moscow, where Marina has a 1/4 share, and Olga has a 3/4 share (shared ownership). Olga decided to donate her 3/4 share to her children, i.e. 3/8 each. In their case, a notary is required. The cadastral value of the apartment is 5.2 million rubles. For drawing up the agreement, the notary charged them 5,400 rubles, and for its certification - 0.5% * (5.2 million * 3/4) = 19,550 rubles. Total RUB 24,950.

  Example No. 3. Alexander, Christina and Svetlana each have a 1/3 share of an apartment in St. Petersburg. Svetlana decided to give Alexander half of her share, i.e. 1/6. The cadastral value of the apartment is 11.3 million rubles. They paid the notary 3,800 rubles for drawing up the agreement. For his ID - 0.5% * (11.3 million * 1/6) = 9,150 rubles. Total RUB 12,950.

Useful links - how a deed of donation of a share of an apartment is certified by a notary and what documents are needed.

Go to the cost of service No. 2 - submitting a gift agreement for registration of the transaction

Before donating, check whether the apartment is pledged. When a citizen is given a share in the apartment, he can independently register in it.

(if mandatory notarization is not provided)

• A) Drawing up a contract - approximately from 4 to 10 tr. In each region, the price for compilation differs because it is not determined by law. It is established by the local notary chamber at a general meeting. In addition, the price changes every year. For example, at the time of writing in Moscow - from 8 tr., in St. Petersburg 6 - 8 tr. Is it possible to bring your own gift deed and not pay for drafting?
• B) Notarization (certification) of the agreement - % of the transaction amount. Usually, when donating a share, notaries take its cadastral value for the transaction amount. Is it possible to indicate another value instead of the cadastral value?
  You can only find out the cadastral value of the entire apartment - instructions. Next, multiply the cadastral value of the apartment by the share. For example, a 1/3 share is given, the cadastral value of the entire apartment is 4.1 million rubles. It turns out the cadastral value of the share: 1/3 * 4.1 million = 1.36 million rubles.

  The percentage for certification depends on the amount of the transaction and whether it is given to a close relative. Tariffs are taken from clause 1 of Art. 22.1 Basics about notaries.

  A share of the apartment is given to a close relative(s)

  That is, spouse, parent, son/daughter, grandson/granddaughter.

• — If the cadastral value of a share is up to 10 million rubles, then certification of the contract costs 3,000 rubles. (0.2% * cadastral value of the share).

— The cadastral value of the share is more than 10 million rubles, then 23,000 rubles.
(0.1% * (cadastral value of the share - 10 million)). But the final cost of the certificate should not exceed 50 tr. SHOW EXAMPLES ↓ Example No. 1: Alexander has an apartment in Moscow, he is the sole owner. He decided to give half of the apartment to his son, i.e. 1/2. Although not necessary, they decided to contact a notary, i.e. at will. The cadastral value of the apartment is 4.8 million rubles. The notary charged them 8,000 rubles for drawing up the agreement, and 3,000 rubles for certifying it. (0.2% * (4.8 million * 1/2)) = 7,800 rub. Total RUR 15,800

Example No. 2. Oksana has a large apartment in St. Petersburg, the cadastral value of which is 21.8 million rubles. She decided to give her grandson a 2/3 share, i.e. to a close relative. They turned to a notary, even though he was not necessary in their case. They paid the notary 6,000 rubles for drawing up the agreement. For his ID - 23,000 rubles. (0.1% * ((21.8 million * 2/3) - 10 million)) = 27,500 rub. Total RUR 33,500

Yes, according to paragraph 5 of Art. 333.25 of the Tax Code of the Russian Federation, donors and recipients have the right to choose themselves what value to take as the transaction amount - cadastral, inventory or assessed (market). The inventory value is almost always less than the cadastral and market value, which means you will have to pay less to certify the contract.

We invite you to familiarize yourself with step-by-step instructions on how to register an inheritance according to the law without a will.

But the catch is that to do this, the notary will have to provide certificates for each cost. The notary will find out the cadastral value himself; a certificate of inventory value is taken free of charge from the BTI, but the estimated (market) value is determined only by appraisal companies and this service is paid (clause 8 of Article 333.25 of the Tax Code of the Russian Federation). The cost of assessment in each region is different - from 4 thousand rubles.

It is important to understand whether it makes sense to order an appraisal at all or is it easier for the notary to calculate from the cadastral value. Let's describe it with an example: donors and recipients decided to provide the notary with all 3 certificates in order to charge the least amount for the transaction amount. We ordered a report on the appraised value of the apartment from an appraisal company for 5,000 rubles.

1/2 share of the apartment is given. The cadastral value of the apartment is 3 million rubles, the inventory value is 2.5 million rubles, the estimated value is 2 million rubles. It turns out that the cadastral value of the share is 3 million * 1/2 = 1.5 million, the inventory value is 2.5 million * 1/2 = 1.25 million rubles, the estimated value is 0.5% * 2 million * 1/2 = 5 tr. The cost of the certificate according to the tariff at the cadastral value will be equal to 0.

5% * 1.5 million = 7500 rubles, with an inventory value of 0.5% * 1.25 million = 6250 rubles, with an estimated value of 0.5% * 2 million * 1/2 = 5000 rubles. Of course, donors and recipients chose the estimated value, because it turned out to be the lowest. But if you remember that the report on the estimated value cost 5,000 rubles, then the total costs came out to 10,000 rubles. It turns out that it would be cheaper for the notary to take the cadastral value of the share for the transaction amount.

1. Passports of the parties to the agreement - the donor and the donee.
2. Documents that confirm the rights to the apartment - a certificate of ownership or an extract from the Unified State Register of Real Estate.
3. Sometimes they may ask for a technical passport, but usually it is not needed. You will definitely need it if you are donating an apartment that was privatized but not registered in the cadastral register. This happens with old apartments owned by older people.

How to give?

In order to give real estate as a gift, it must first be in your direct ownership .

Also, do not forget that you can formalize a donation in two ways - by contacting a notary, and by contacting the body that registers real estate transactions, in other words - Rosreestr .

You must collect a package of necessary documents in proper form. In addition, you should contact a representative of the minor who could help him accept the gift.

Remember that it is strictly forbidden to simultaneously act as a donor and a representative of the recipient.

After the documents are collected, you either visit a notary, who properly draws up a power of attorney, or go to Rosreestr with the representative’s signature on the papers.

There they check all the documents and information you provide, study them carefully and only then register both the transaction and the documents, and after that your child becomes the full owner.

Who pays for everything

Notaries don’t care who will pay for their services, but most of them will have the donee appear on their payment receipts, because they are beneficiaries. And the law does not specify who is obliged to pay, so it is better for donors and recipients to agree on payment in advance.

We suggest you read How to register a marriage in a colony

Only the court can help the owner of an apartment to discharge a person without his consent.

But even though the tax fee is not paid, the parties will have to spend money when preparing documents. But which side will bear the costs, they decide among themselves.

It is also worth remembering that close relatives have the right to give a share in real estate to another relative free of charge.

Collection of documents

Of course, in order to apply for registration of a gift, it is necessary to correctly collect the documents. The very fact of whether your documents will be accepted or not depends on this.

Therefore, you need to pay great attention to drawing up the necessary package of documents - this is what we will do.

The first thing that should be in your folder is an application for state registration of rights to real estate and transactions with it.

You must also have a document that would indicate that you, as expected, paid the state fee , which means you can apply for a government service.

Since one of the parties to the donation is a minor, there must be a document proving the rights of his representative. In our case, this is a power of attorney.

Since three people are involved in the transaction - the parties and the representative, everyone must be identified. Therefore, it is necessary to present passports and original birth certificates of minors if they have not reached the age of fourteen.

Since property is alienated in favor of a specific person, you must have evidence that this property is actually owned by the donor.

To do this, you need to present documents that would indicate for you that you are the owner, for example, a certificate of ownership .

Don’t forget about such an important and at the same time necessary document as a gift agreement. We talk about the basic requirements for drawing up a donation agreement for a share of an apartment in the next article.

If you are married to your spouse, he must notarize his consent for you to give the child real estate. Consent is required even regardless of the fact that the spouse acts as the child's representative.

If you are divorced and want to donate property acquired during marriage, you have the right to do so without the consent of your spouse only after three years have passed from the date of divorce.

It is also necessary to obtain a certificate from the BTI authorities that would confirm the direct registration address of each of the participants in the donation.

Now let’s figure out how exactly a contract for donating a share of an apartment to a minor child should be drawn up.

Is it possible to give your daughter your share of joint property?

The essence of the gift agreement is that one party (the donor) transfers or undertakes to transfer to the opposite party (the donee) a certain thing (gift), and such transfer is carried out absolutely free of charge. In addition, within the framework of such a transaction the following may occur:

• transfer of property rights of claim (to the donor or any third party);
• release of the donee from a certain property obligation (to the donor or any third party).

When giving an item as a gift, the recipient's consent to accept the gift is required. The recipient also has the right to refuse the gift at any time.

The right of common property is traditionally understood as the right of several people, together and at their own discretion, to use and dispose of property that belongs to them on a trust basis. The most common option for the emergence of joint property, provided for by the Civil Code of the Russian Federation, is joint property of spouses (Article 256 of the Civil Code). This applies only to an apartment purchased during marriage.

It is worth emphasizing here that we are talking only about real estate that the family received as a result of so-called compensated transactions. If the apartment was inherited by one of the spouses, or under a gift agreement, it is recognized as the private property of only this one spouse. True, if the second spouse has made significant improvements to the donated or inherited home, such property will already be considered joint.

How to draw up a contract?

A deed of gift for children for a share in an apartment is a document that contains an agreement to act when one party gives something as a gift to the other.

The contract for the child must also be drawn up in accordance with the rules .

The content of this document is always the same, so you can easily find a sample agreement for donating a share in an apartment to a minor child on the Internet. But it’s also worth remembering that you must edit the contract to suit yourself, some things you need to include and some you don’t.

The rights and obligations of the parties must be specified in the gift agreement . That is, the donor must donate the property, and the recipient must accept it or fulfill some condition in order to accept it. In our case, for example, finish school, enter a university, and so on.

The contract also clearly states the circumstances for which the parties are necessarily responsible.

So, for example, if the donor knows that there are shortcomings in his gift that can cause various types of damage to the recipient, for example, material or, even worse, physical damage, then the donor will definitely have to compensate for it.

The conditions as a result of which this agreement is terminated must also be specified.

For example, if the donee did not fulfill the conditions that were specified in the contract, then it must certainly be terminated.

There are also other circumstances that affect the termination of the contract.

Cost of additional service No. 3 - notarized consent from the donor’s spouse

Also, the reason for returning a package of documents may be your lack of property rights, the disagreement of other owners, or the refusal of the opposite party to accept the gift.

After the transaction is registered in Rosreestr, the recipient will become the new owner of the share. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.

Of course, the parties can refuse and submit the agreement for registration themselves. You will also have to pay 2000 rubles. for state duty.

Useful links - how to formalize the donation of an apartment from a notary in 2020 and what documents are needed; Find a notary “near me” on Yandex.Map - displays customer reviews and ratings, addresses, phone numbers, opening hours, etc.

1. If there are several shared owners in the apartment, and one of the owners decides to donate his share to another person, or shareholder;
2. The apartment was purchased during marriage, and now one of the spouses wants to give part of this apartment to another person.

But there are cases when notarization is not required; a simple form deed of gift of a share of an apartment can be used. That is, this is an agreement that is written on an A4 sheet, and it bears the signatures of the donor and the donee. Such cases include:

1. If there is only one owner in the property, and he decided to donate part of the property to another person;
2. If, after purchase, the apartment was registered as joint ownership between the spouses, and the donation of the share does not occur to the second spouse.

A written refusal must be registered, so the recipient must contact the nearest branch of the MFC or Rosreestr. After the refusal passes state registration, the gift agreement will be terminated.

A deed of gift may be invalidated if the following reasons exist:

1. The agreement was signed under threat or blackmail;
2. The second spouse did not give written consent to the transaction;
3. When signing, the participant was under the influence of alcohol and drugs;
4. The donor was a minor child or an incapacitated citizen;
5. The donor has mental illness, for which he is not responsible for his actions.

A deed of gift can be declared invalid only in court, where the donor or his official representative can file a claim. If the recipient violated the law, for example, threatened the donor, then he will additionally need to contact the investigative committee so that they initiate a criminal case against him.

1. When there are several owners in an apartment, where each has a certain share (1/2, 1/3, 5/7, etc.), and one of the owners of the share wants to give it to someone, a notary is required. Then when the apartment is registered as common shared ownership - clause 2 of Art. 244 Civil Code of the Russian Federation.
   Here it does not matter to whom the owner is going to give his share - another owner or a stranger, a relative or not, one person or several, a minor or an adult, etc. Since the apartment is in common shared ownership and one of the owners donates his share, we must go to the notary. If all owners donate their shares in one transaction (in fact, the entire apartment is donated), then in this case a notary is not required.

   SHOW EXAMPLE ↓ Oleg and Olga own an apartment. Each has 1/2 (shared ownership). If Oleg decides to donate his share (or part of the share) to someone, a notary is required. It makes no difference to whom the share will be given - Olga (another owner) or a stranger, the entire share or only part of it (for example, 1/4), one person or several. Moreover, consent from the other owner is not required.

   When donating a share of an apartment, a notary: 1) draw up a donation agreement; 2) certify the signatures on it from the parties to the transaction; 3) submit the agreement and documents to Rosreestr for registration of the transaction. For more details, follow the link - how to have a deed of donation of a share in an apartment certified by a notary in 2020 and how much it costs.

   Additionally: if the owner bought a share during marriage, then when donating this share, the notarized consent of the owner’s spouse will be required - clause 3 of Art. 35 IC RF. Any real estate purchased during marriage is considered the joint property of BOTH spouses, even if this real estate is registered in the ownership of only one of them - clause 2 of Art. 34 RF IC. A notary's consent costs about 1000-2000 rubles.

A small digression - if you need free legal advice, you can write online to a lawyer at the bottom right at any time, you can order a call at the bottom left, or call yourself: 8 (Moscow and region); 8 (812) 425-64-92 (St. Petersburg and region); 8 (all regions of the Russian Federation).

To donate a share, you do not need to ask the consent of other owners - legal justification. Before donating, I advise you to check whether there are any encumbrances on the apartment - instructions.

Read also:  How to draw up a termination agreement - sample
2. If spouses from a joint apartment want to give a share to someone else, they will have to contact a notary. And twice.
   If the apartment is jointly owned, then the shares of the owners are not determined - clause 2 of Art. 244 Civil Code of the Russian Federation. It is impossible to give a share in such an apartment as a gift. After all, you cannot give something that is not defined. Therefore, the spouses will first have to transfer the apartment from joint ownership to shared ownership. And only then can you donate a share.

   To transfer an apartment into shared ownership, you need to draw up a marriage contract with a notary (Article 41 and Article 42 of the RF IC) or an agreement on the division of common property (Art. 38 of the RF IC). A prenuptial agreement is cheaper. Shares can be specified in any proportion. Next, the contract or agreement must be submitted for registration with Rosreestr.

   After registration, you need to contact a notary again, but this time certify the agreement of gift of share. After all, the apartment is now in shared ownership, and in this case a notary is required.

   Exception: A notary is not required when allocating shares to children when using financial capital.

   It often happens that spouses buy an apartment with a mortgage and register it as joint ownership between them or as the property of one of them. After the birth of the second child, they pay off part of the mortgage debt with maternal capital and sign an obligation on the future allocation of shares to each family member.

   To allocate a share, they do not have to go to a notary. It is enough to draw up an agreement on the DETERMINATION of shares, which indicates that the share of the spouses will be jointly owned by the spouses. For example, each child gets 1/6, and the remaining share of 1/3 is registered by the spouses as joint property between them. This agreement will be registered in Rosreestr on the basis of clause 90.1 of Order of the Ministry of Economic Development dated December 16, 2020 N 943. The Pension Fund will not have any questions. I will write a detailed article about this soon.

   SHOW EXAMPLES ↓ Example No. 1 (the situation is not about children): Spouses Alexey and Marina bought an apartment and registered it as joint ownership for both of them. Later they decided to give a 1/3 share to Alexey’s mother, Oksana. To do this, they will have to contact the notary twice.

   First, they draw up a marriage contract with a notary. It indicates that Alexey’s share will be 2/3, and Marina’s share will be 1/3. Later I will write why they did this. They submitted the notary agreement for registration.

   After registration, all that remains is to donate the share. The couple knew that if Marina gave the share to Oksana (her mother-in-law), then Oksana would have to pay a tax of 13% on the value of the share. Because a son’s spouse (daughter-in-law) is not considered a close relative by law, but a son is.

   Therefore, Alexey goes with his mother to a notary and draws up a share donation agreement, where he gives her 1/3 of his 2/3. They then submit contracts for registration. As a result, everyone has 1/3 in the apartment.

   Example No. 2 (about allocating shares to children with financial capital): Spouses Andrey and Daria bought an apartment with a mortgage. After the birth of their second child, they received financial capital, which they used to pay part of the mortgage. They formalized an obligation with the Pension Fund - after paying off the mortgage, they are obliged to allocate shares to their children.

   After they paid off the mortgage, they only had to allocate shares to the children according to the obligation. Spouses do not need to go to a notary. They just need to draw up an agreement on the determination of shares in a simple form and submit it for registration. As a result, each family member will have a certain share in the apartment.

By maternity capital

Property acquired under the “maternity capital” program can be gifted, but only to your child . This is evidenced by Federal Law No. 256-FZ of December 29, 2006, which regulates this program.

.

About the pros and cons of a deed of gift, as well as what is better - to give or sell, or to draw up a will, whether it is possible to cancel a deed of gift or challenge it, what the law says about donating an apartment that has already been donated, is described on our website.

How to draw up a deed of gift for a share in an apartment

According to Part 4 of Article 244 of the Civil Code of the Russian Federation, common property arises when two or more persons acquire property that cannot be divided without changing its purpose (indivisible things) or is not subject to division by force of law. In relation to residential premises, the law does not prohibit or restrict the right of common shared ownership.

residential building, part of a residential building;2. apartment, part of an apartment;3. room. The grounds for the emergence of the right of common shared ownership can be very different, among which the following grounds should be particularly highlighted: 1. Transactions with residential premises with the participation of both citizens and organizations (donation, barter, purchase and sale, rent);2.

In the second case, to formalize the donation of one part of it, the consent of all owners is required. In this case, all parties must sign an agreement defining their shares, which must be notarized. If the owners do not agree on the share division, the court will be the solution.