Is it possible to issue a deed of gift for an apartment using a general power of attorney?
Is it possible to draw up a gift deed in this way? If yes, in what cases? In a situation where the donor cannot take part in the transaction, you should not refuse to carry it out.
The law in Chapter 32 of the Civil Legislation provides for the possibility of carrying out this transaction through a proxy.
Thus, the legislator wants to help citizens carry out their will, even if personal presence is impossible.
However, in order to make a gift of real estate in relation to any person, it is necessary that the trustee be authorized to take all relevant actions.
For this purpose, obtaining a general power of attorney is the most important act. In this case, a power of attorney must be obtained by both a representative of an individual and a representative of a legal entity.
However, a significant difference between these situations is the fact that when a proxy acts as an authorized representative of an individual, he is elected by the person independently and is authorized by a power of attorney.
When it comes to choosing a proxy from a legal organization, then it is necessary to vest one of the employees with the appropriate powers, and in addition to the power of attorney, there must also be an order.
A power of attorney to carry out a gift transaction is considered valid until its validity period expires, or the donor himself does not take part in the transaction. And in his absence, if the appropriate powers are available, all actions are carried out by a trusted person.
Does it need to be drawn up by a notary?
A power of attorney to donate an apartment cannot be drawn up at home. This document requires special knowledge, as well as the availability of a specific form on which it is drawn up. It is also important to take into account other nuances.
For example, a power of attorney must belong to a specific category, and therefore contain certain information. There are several types of power of attorney.
First of all, there are different categories depending on the validity period. Issue a durable power of attorney.
This means that it does not specify the period for which the trustee must exercise powers on behalf of the donor. This means that the parties, by mutual agreement, decide for themselves when the validity period will expire.
Also, there is an urgent power of attorney, which can be issued for a certain period, after the expiration of this period it can be extended, or even cease to be valid.
Also, a distinction is made between full (unlimited) and partial (limited) powers of attorney. This means that the person is endowed with absolutely all the powers of the donor, or only partially.
Depending on what conditions are specified in the power of attorney, powers of attorney are divided into those that contain the entire mass of powers, or only some specific ones.
The power of attorney must contain the following information. Thus, the power of attorney must contain information about the person who entrusts his powers to a third party.
There must also be information about the passport details of the parties. It is necessary to indicate the periods for which this document applies. The powers that the principal trusts are indicated.
If the power of attorney is not limited, then this clause may not be indicated, but rather it should be stated that the person is vested with full power.
Upon completion of completion, the signatures of the parties are affixed, as well as the notary’s seal. This document requires absolute notarization; only after this the document will enter into legal force. Also, the document is entered into the relevant notary register.
What is needed to formalize a power of attorney for giving and receiving a gift?
This document is always issued as a personal document - this is the only way it has legal force. The power of attorney also contains a list of powers transferred to the authorized person. After completion of the donation procedure, the powers lose their force.
In fact, a power of attorney is a fixed-term transaction (Civil Code of the Russian Federation, Article 186), therefore it is necessary to note the date of registration and validity period. By default, the power of attorney remains valid for one year. If the date of drawing up the document is not indicated, it is considered void.
What is needed to issue a power of attorney:
- presentation of the first two pages of the authorized person’s passport or his passport data;
- personal appearance of the principal;
- presentation of a passport by the principal;
- indication in the power of attorney the full name and full date of birth of the donee;
- indication of the exact address and name of the property that is being donated;
- If a citizen issues a power of attorney to accept a gift, he must indicate the full name and full date of birth of the donor.
However, there are unusual cases in which an individual legal approach is necessary. In such situations, the notary may request additional documents to carry out the notarial act.
What is the procedure for registering a gift agreement?
The power of attorney must be executed in a notary office. We have already talked about this. Also, you need to meet certain conditions in order for the transaction to be considered completed.
So, first of all, both parties must be present at the notary’s office. This means that the principal and the authorized representative must appear at the appointed time to the notary.
Next, you need to ensure that both parties take documents with them. The notary must check the authenticity of the documents and also discuss the nuances of the transaction again.
If this transaction does not violate the rights of third parties, then this means that a power of attorney will be concluded.
How to compose it correctly? Sample document
Now that the power of attorney has been drawn up and the donor has been able to go away on his own business, we move on to discussing the gift agreement.
Since it is now not the donor who is participating in it, but his legal representative by proxy, the structure of the agreement will be somewhat different.
- So, in the first paragraph, where information about the parties is indicated, information about the donee, as well as about the donor’s representative, is indicated. Information from passports is indicated, and information about the power of attorney is also indicated.
- Next comes the paragraph called “Subject of the Agreement”. The property is described based on technical documentation and a certificate of ownership.
- Next, you need to indicate a clause on the rights and obligations of the parties. It is necessary to pay due attention to this point, because all the conditions under which this act should function must be spelled out.
- The fourth paragraph indicates the responsibility of the parties for failure to fulfill the terms of the agreement.
- The fifth paragraph provides information about possible changes and termination of the contract. Then a list of documents is attached, dated and signed by the parties.
- If possible, the contract should be certified by a notary, because now the transaction is carried out not by the donor, but by his authorized representative, which means it would not be superfluous to involve a notary in the transaction so that he checks the legality of your transaction.
What papers will be needed for the procedure?
- First of all, passports of the parties are required. It is necessary to ensure that the persons have the right to carry out the transaction.
- Then, you need to provide a power of attorney on the basis of which you will carry out the transaction.
- Then, you must provide a certificate of ownership of the property.
- Below is the technical documentation. Make sure to obtain statements from the Inventory Bureau and the management company in advance, then you need to check that you have no debt on utility bills.
- You may also need additional documents, which the notary will tell you about.
Registration of a gift agreement by power of attorney
The registration procedure also requires the provision of a package of documents. However, you should not worry and form it again.
You will only need to fill out your package of documents with other papers.
Thus, the gift agreement, which was drawn up in a notary’s office, is attached to the above package of documents. Since the gift transaction is a paid government service, you need to pay a state fee for its registration.
You need to pay the state fee according to the details that you will receive from the Rosreestr authority. Today, the amount of state duty is two thousand rubles.
In what cases can this procedure be refused?
You may be denied registration of such an agreement for a number of reasons. Typically, you need to plan for such situations in advance so that you do not have problems in the future.
First of all, you need to make sure that the deed of gift is drawn up correctly. If you compiled it with a notary, then you will not have any problems. However, if you compiled it yourself, you may have made a mistake somewhere or some inconsistency with the points. Refusal may result from incorrect execution of the package of documents or lack of essential papers.
The next reason for refusal is the expiration of your powers under the power of attorney agreement. This means that if the deadline has already passed, you cannot participate in the transaction as a trustee.
The same applies to the situation when the power of attorney does not provide for the possibility of carrying out a gift transaction. Consider all these nuances in advance so as not to encounter dire consequences that will force you to start the procedure from the very beginning.
Features when drawing up a power of attorney for an apartment
In transactions for the purchase and sale of apartments, a power of attorney can be used not only by the Seller, but also by the Buyer. When an apartment is SOLD by proxy, the Buyer faces certain risks. If there is a marriage contract, then the property will be distributed between the spouses according to its terms.
You will have 2 Agreements. In one case, your sister will accept the gift as the donee, in the other she can act by proxy on your behalf.
If a power of attorney is issued to several representatives, each of them has the powers specified in the power of attorney, unless the power of attorney stipulates that the representatives exercise them jointly.
Is it possible to appeal a deed of gift for housing?
In practice, there are situations that make it possible to challenge a gift agreement by proxy. This can happen for a number of reasons.
If such an agreement violated the rights of third parties, they can file a claim and also cancel the transaction.
If the trustee carried out a gift transaction, but did not fulfill any instructions from his principal, thereby letting him down, then the principal can also challenge the transaction, citing the fact that the trustee carried out unlawful actions on his behalf.
In any case, the appeal procedure must also go through the court, by filing a statement of claim. However, we hope that you will not end up with such serious proceedings.
What is a gift agreement
An allotment agreement is a transaction during which a plot of land is transferred voluntarily and free of charge from the donor to the donee. The donor himself decides who will accept the object of donation. No one is limited in their choice. This could be either a close relative or a complete stranger. The donor must meet certain requirements:
- Be competent;
- Possess the transferred land plot legally;
The donor cannot be:
- Incapacitated;
- Stateless person;
- State employee;
- A social worker, subject to the transfer of the plot of land to his ward;
- A person under 18 years of age.
Another category of persons to whom such a right is not available is legal entities. Companies have the right to carry out this kind of transaction only through individuals. Another nuance is that consent to the transaction must be obtained from the recipient. You cannot give a plot of land to someone without obtaining their approval.
