One of the separate types of residential premises is a room . According to paragraph 4 of Art. 16 of the Housing Code of the Russian Federation, a room should be considered a part of a residential building or apartment , which is intended for the direct residence of people in it. Thus, one should distinguish between several types of such premises - rooms in apartments, communal apartments or dormitories.
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Since a room, like a living space, according to Art. 15 of the Housing Code, is an object of housing rights; it can act as an independent object of property rights. All other premises (bathroom, kitchen, utility rooms, etc.) will be in shared ownership of the co-owners of the residential premises, for example, communal apartments.
Acting as an independent object of property rights, it can be donated under a gift deed . According to Art. 572 of the Civil Code, such an agreement will imply an agreement between the donor and the donee on the free transfer in favor of the latter of property rights to the room.
Please note that donating a room is only possible if it is separated from the shared property and is in the private property of the donor. Otherwise, the donee can only receive a share in the ownership.
Since the donee receives the room free of charge , the gift agreement cannot give rise to his property obligations. If they exist, the transaction cannot be considered a donation - it is feigned, and therefore void (clause 2 of Article 170 of the Civil Code).
Like any gift agreement, a deed of gift for a room is distinguished by its simplicity of execution - the absence of a notarial form and the need to register the agreement. But since the item is a piece of real estate, according to Art. 131 of the Civil Code, state registration of the transaction .
According to tax legislation, receiving a room as a gift is considered to be receiving income commensurate with the market value of such a room, on which income tax is charged (Articles 208, 217 of the Tax Code of the Russian Federation). According to Art. 224 of the Tax Code, the amount of personal income tax charged is 13% of the market value.
Registration of a room donation agreement
When formalizing the donation of a room, the parties to the transaction must take into account all the regulatory requirements imposed on it by the legislator. In particular, the most important aspects of the validity of a deed of gift should be considered the form of the agreement and its content . Since the room is real estate, which has special rules of civil circulation, the general rules established by Art. 574 Civil Code.
Residential real estate requires state registration, the procedure for which involves submitting documents, including a gift agreement . According to Art. 18 Federal Law No. 122, all submitted documents must be executed on paper.
State registration requires a mandatory written form of the room donation agreement . Violation of this requirement will be the reason for refusal to carry out this procedure, as a result of which the ownership rights to the residential premises will not be transferred to the donee.
In addition to the mandatory form, the parties must comply with the legality of the terms of the gift agreement. The most basic requirement is the condition on the subject (Article 432 of the Civil Code). It involves describing the gift in a way that will distinguish it from similar real estate items.
Thus, the contract must contain the full address of the room , its area, data from the cadastral and technical passport, including description, defects, shortcomings, etc. At the same time, the agreement must also indicate the donation of common property , in the case of donating a room in a communal apartment (Article 42 of the Housing Code).
If there is a contract of promise to donate a room, then according to clause 2 of Art. 572 of the Civil Code, it must contain an indication of the donor’s intention to transfer the property in the future. In this case, it is also advisable to specify the method, terms and conditions of the transfer, attached documents, division of costs for processing the transaction, etc.
Since housing is subject to personal income tax, calculated from its market value, such value must be indicated in the contract. For an objective assessment, it is advisable to resort to the services of an expert appraiser.
If there are defects in the room that threaten the life and health of the recipient, in accordance with Art. 580 of the Civil Code, he must be warned about them . In order to avoid subsequent proceedings on this matter, it is advisable to describe them in the contract itself or the transfer deed (Article 556 of the Civil Code).
D. and K. entered into a deed of gift, according to which D. received a room in a communal apartment. However, the agreement contained only an indication of the room and did not imply the donation of common shared ownership of other premises in the apartment, which is required by paragraph 3 of Art. 42 LCD. K. decided to keep them for himself. Since common property follows the fate of a room in a communal apartment, giving one without the other is impossible. Based on this, the Rosreestr authorities refused K.’s state registration of real estate, due to the non-compliance of the agreement with the requirements of the law (Article 168 of the Civil Code).
Lawyer Maralina D.V.
AGREEMENT for the donation of a room in a communal apartment __________________________________________ (place and date of conclusion of the agreement in words)
Gr. RF ______________, hereinafter referred to as the Donor, on the one hand, and gr. RF ____________, hereinafter referred to as__ the Donee, on the other hand, have entered into this Agreement as follows:
1. THE SUBJECT OF THE AGREEMENT
1.1. In accordance with this Agreement, the Donor transfers free of charge to the Donee one room N ____ in a ___-room communal apartment located on the __ floor of a __________ (block, panel, brick, log) house located at the address: index: ___________, ______________ region, city _____________, street ____________, building _____, bldg. ______, apartment N ____ (hereinafter referred to in the Agreement as the Room). 1.2. The total usable area of the room is ____ (____________) sq. m. m (specify in numbers and words), including living area - _____ (_____________) sq. m. The room is located in a ___-room apartment with a total area of ____ (____________) sq. m. m, living area ____ (_______________) sq. m, including the area of the remaining rooms - ______ (_____________) sq. m. 1.3. Together with Room No. _____ is alienated _____ (specify in fraction) shares) in the right to common areas in this communal apartment. 1.4. The inventory assessment of Room N _____ is _____________ ______) rubles, which is confirmed by certificate N ________ dated “__”______ ____, issued by __________________________ BTI. (indicate the name of the municipality)
1.5. The specified Room and share in the right to the common property of the apartment belongs to the Donor by right of ownership on the basis of _____________________________________________________________________, (sale and purchase agreement, other title document)
which is confirmed by the certificate of state registration of rights dated “___”__________ ____, series _________, N __________________, issued by ____________________, registration N ________________, as stated in the Unified State Register of Rights to Real Estate and Transactions with It “___”___________ ____. record N _______ was made. 1.6. The Done accepts as a gift from the Donor the specified Room and a share in the right to the common property of the apartment.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES
2.1. The Donor has the right to cancel the donation if the Donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the Donor. In case of intentional deprivation of life of the Donor by the Donee, the right to demand in court the cancellation of the donation belongs to the heirs of the Donor. 2.2. The Donor has the right to demand in court the cancellation of the donation if the Donee’s handling of the donated Room creates a threat of its irretrievable loss. 2.3. The Donor has the right to cancel the donation if he survives the Donee. 2.4. In case of cancellation of the donation, the Donee is obliged to return the donated Room if it was preserved in kind at the time of cancellation of the donation.
3.1. The terms of this Agreement and additional agreements to it are confidential and are not subject to disclosure.
4. DISPUTE RESOLUTION
4.1. All disputes and disagreements that may arise between the parties on issues that are not resolved in the text of this Agreement will be resolved through negotiations on the basis of current legislation. 4.2. If settlements are not resolved through negotiations, disputes are resolved in court in the manner prescribed by current legislation.
5. STATE REGISTRATION
5.1. This Agreement comes into force and is considered concluded from the moment of state registration of the Donee’s property rights in the Unified State Register of Rights to Real Estate and Transactions with It. 5.2. Expenses associated with state registration of the Agreement, as well as the Donee’s property rights, are paid at the expense of the Donee. 5.3. The donee acquires ownership of the specified Room and a share in the right to the common property of the apartment after state registration of the transfer of ownership in the Unified State Register of Rights to Real Estate and Transactions with It. The Room is transferred from the Donor to the Done after execution of the transfer deed within ____ days from the date of state registration of the Donee's ownership of the Room.
6. SPECIAL CONDITIONS
6.1. The Donor guarantees that before signing this Agreement the Room has not been sold to anyone, not given as a gift, not pledged, not encumbered with the rights of third parties, and is not in dispute or under arrest (ban). 6.2. The room is free from residence by third parties who, in accordance with the law or agreement, have the right to use this room. 6.3. The Parties to the Agreement confirm that they are not deprived of legal capacity, are not under guardianship or trusteeship, do not suffer from diseases that prevent them from understanding the essence of the Agreement, and that there are no circumstances forcing the execution of this Agreement.
7. FINAL PROVISIONS
7.1. In everything that is not provided for in this Agreement, the parties are guided by the current legislation of the Russian Federation. 7.2. Any changes and additions to this Agreement are valid provided that they are made in writing, signed by the parties and registered in the prescribed manner. 7.3. The agreement is drawn up in three copies having equal legal force, one of which is kept by the Donor, the second by the Donee, and the third by the body carrying out state registration of rights to real estate.
8. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES:
Donor: gr. Russian Federation _____________________________________________________, gender ______, date of birth _________________, place of birth ______________, passport: series ______, N ___________________, issued “___”__________ ____ __________________________________________________________________________; lives at: _____________________________________________________.
donee: gr. Russian Federation ____________________________________________________, gender _____, date of birth _________________, place of birth _______________, passport: series ______, N __________________, issued by “___”___________ ____ __________________________________________________________________________; lives at: _____________________________________________________.
_________________ (signature) _______________ (signature)
State registration of donation of a room
State registration of real estate donation agreement was canceled by Art. 2 Federal Law No. 302 dated December 30, 2012 However, this norm did not cancel the requirement for state registration of the real estate itself , established by Art. 131 Civil Code. Thus, this procedure is carried out in the manner established by Federal Law No. 122 of July 21, 1997, taking into account special Methodological recommendations.
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The state registration of rights to real estate is carried out by the Federal Service for State Registration of Cadastre and Cartography (Rosreestr), its local branches and Multifunctional Centers (MFC).
State registration of real estate is carried out in the manner prescribed by Art. 13 Federal Law No. 122. According to it, registration of rights begins from the moment the applicants (donation parties) submit a number of documents , a detailed list of which is advisable to find out in the Rosreestr branch. Before submitting documents, applicants must pay a state fee, which, according to Art. 333.33 of the Tax Code, amounts to 2 thousand rubles for citizens and 22 thousand rubles for organizations.
After submitting the application and documents, the applicant receives a receipt, which will indicate a specific date when he will be able to receive the expected state registration certificate. After receiving the documents, the state registrar carries out a legal examination of them for legality, after which he enters information into the register of rights (USRE) and applies certification inscriptions to the title documents .
According to paragraph 3 of Art. 13 Federal Law No. 122, registration is carried out within 10 working days . After this period, if all the information submitted complied with the requirements of the law, the applicant receives title documents and a certificate of state registration . From the moment of receipt of these documents, ownership of the room passes to the donee (clause 2 of Article 223 of the Civil Code).
Donating a room in a communal apartment
Otherwise, the concluded contract may be terminated, and each of its parties will suffer significant losses. To formalize a donation, the parties to the agreement must provide:
- a gift agreement signed by the parties and an application for its registration;
- a document that records the fact of payment of the state duty;
- passports, and if the donee is a minor, a birth certificate is provided. If a legal entity is involved in the transaction, to register the transaction you will need to issue an extract from the Unified State Register of Legal Entities;
- certificate of ownership of the room that is the subject of the contract;
- technical documentation for the room (explication, technical passport, etc.).
The parties to the transaction are responsible for the authenticity of the documents provided.
Depending on the circumstances of the transaction and the composition of its participants, the list of documentation required for its registration may change. However, the list of documents common to all cases remains unchanged.
Special cases of donating a room
A room, as a residential property, has quite specific features . Thus, its donation is possible only if it is in the private property of the donor, i.e. is an independent object of law . The procedure for its transformation into such an object of law depends on its belonging to a specific residential premises, of which it is necessarily a part (apartments, communal apartments or dormitories).
Thus, to donate a room in an apartment, the donor must initially separate it from common property into private property (Clause 2 of Article 252 of the Civil Code). According to paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 8 dated August 24, 1993, the allocation of a share of property in kind is possible only if it is technically possible to transfer to the owner not only an isolated premises, but also other premises, as well as equipment for a separate entrance.
Donating a room in a communal apartment
The mode of ownership of a room in a communal apartment presupposes the right of private ownership of the room itself, as well as the right of common shared ownership of the premises in this apartment - kitchen, bathroom, corridor (Article 41 of the Housing Code).
When receiving premises in a communal apartment as a gift, the recipient also receives a share in the common ownership of the apartment itself, the size of which is proportional to the area of the room (Article 42 of the Housing Code).
Paid alienation presupposes the right of owners of other rooms to pre-emptive purchase (Article 250 of the Civil Code). A gift, being a gratuitous transaction, avoids the emergence of such a right, but excludes the possibility of the donor receiving property benefits.
Donating a room share
To donate a share of a room, it must also be allocated. Based on this, donating part of a room located in an ordinary apartment, if there is no technical possibility of allocation, seems impossible . donation of shares in property rights can be carried out
Donating a dorm room
To donate a dorm room, you first need to acquire ownership of it. This is possible through privatization (Federal Law No. 189 dated July 4, 1991), taking into account the norms of the Housing Code of the Russian Federation, which is free until March 1, 2016 .
To carry it out, a combination of a number of factors - the hostel must be on the balance sheet of the municipality, previously it was the property of a state or municipal enterprise, and now it is used for its intended purpose - for citizens to live in it.
After privatization, the rightful owner is free to dispose of the room in the hostel at his own discretion, including donating it to anyone , in accordance with Art. 572 Civil Code.
The procedure for donating a privately owned dorm room is subject to all general rules for donating residential real estate.
Gift deed for a room in a communal apartment
In this case, the presence of family or kinship ties does not matter. Provide to individuals or legal entities both free of charge and on a paid basis. Bequeath or transfer the right to manage it by proxy. Give the premises as collateral. Sell, exchange or donate. Use the premises in other purposes, provided that this does not violate the requirements of the law and the rights of other residents. In some cases, the rights of the owner are somewhat limited.
We recommend reading: Protocol for inspection of premises during inspection
We are talking about finding a room as collateral. Only the spouse, parents and children will be able to register on the premises without the bank’s consent, subject to the presentation of documents confirming family ties or kinship. Any other actions will require the consent of the banking authority. In general, the procedure for donating a room does not differ significantly from the transfer of an apartment or homeownership as a whole.
Agreement for the donation of a room in a communal apartment: procedure and conditions for completing the transaction, sample deed of gift
Donation has some disadvantages:
- a gift is always unconditional - it is impossible to register a gift transaction if it contains any conditions.
- Such a transaction quite often becomes the subject of litigation. Moreover, the reason for this is precisely its gratuitousness - the court may side with the plaintiff if the donor is elderly, in poor health, or belongs to a socially vulnerable part of society;
- payment of a tax in the amount of 13% of the market value of the gift (apartment, room, share in the ownership of housing), if the parties are not closely related (you can read who close relatives are);
Positive aspects of giving:
- simplicity of the transaction itself.
This does not require a huge amount of paperwork;
- the donor is not obliged to seek the advice and approval of neighbors to make a gift;
- the donee's ownership right arises at the moment of transfer of property and signing of the deed of gift (unless otherwise stated in it).
Sale of an apartment under a gift agreement
Real estate gift agreement. Sale of a room or apartment under a donation agreement. An apartment donation agreement is a free and unconditional transaction that is widely used in the real estate market.
A gift agreement is often used when making transactions in the real estate market.
The gift agreement has positive and negative sides, its pros and cons.
Tax under a real estate gift agreement. The first significant drawback of a real estate gift agreement is its taxation.
An apartment donation agreement is subject to tax. The tax is 13% of the cadastral value of the property. It is paid by the person who received the property as a gift.
No tax is paid if a transaction under a gift agreement occurs between close relatives. The legislation includes parents, brothers, sisters, and children as close relatives. Cousins or second cousins are not considered relatives and tax will be charged.
13% of the value of the property is a significant amount, sometimes this is a reason to think about the need to draw up a gift agreement. The second significant drawback is that the real estate gift agreement is a gratuitous transaction.
free deals? It can be declared invalid.
In this case, the donee is deprived of the donated property.
It cannot be said that an apartment donation agreement is so easily recognized as an invalid transaction. The third disadvantage of a real estate gift agreement is that it is an unconditional transaction.
This means that conditions cannot be specified in the contract. For example, that in the donated property the donor has the right of lifelong residence or close relatives of the donor. This can be stipulated when drawing up a will and a purchase and sale agreement.
This is inconvenient in some cases and is the reason why some older people
Sale under a gift agreement
Some property owners offer to transfer ownership to the buyer under a deed of gift.
Of course, not for free. Money for the object is transferred in parallel with the signing of the deed of gift.
Usually the seller is interested in such a scheme. The buyer's interest lies in the low cost of the property.
However, such a deal could lead to serious difficulties in the future.
The risks for both parties are so great that sometimes realtors do not even undertake to participate in such transactions.
The scheme of selling real estate under a gift agreement is used quite rarely. According to statistics from various real estate agencies, sellers contact agencies with such an offer only a few times a year.
Selling under a gift agreement is resorted to only in extreme cases: 1. Difficulty in selling a share When selling a share, the seller is obliged to obtain from the other co-owners a waiver of the use of the pre-emptive right.
This right is reserved to them by the Housing Code of the Russian Federation. Without receiving a refusal, the transaction will not be registered with the Rosreestr office.
There are two ways to follow the procedure: when signing papers at a notary or sending notices of sale by registered mail with notification. The notice must indicate the cost of the apartment and the deadline for a response (one month).
According to the Civil Code of the Russian Federation, failure to respond may be considered a refusal. Thus, if no one has responded within a month, then Rosreestr will register the transaction based on the notifications sent. True, if the notice was not received on time, then by law the co-owner has the right, within three months after the transaction, to demand in court that the purchase be transferred to himself. It would seem that the scheme is simple.
But, as practice shows, co-owners often express a desire to buy out the share.
And they plan to do this at the lowest possible price.
To achieve this, all possible levers of influence on the owner are used. However, abuse of the right of first refusal is resorted to not only for dumping. Particularly difficult are