About the need to notarize a gift agreement

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Notarization of donation agreements for apartments, plots, houses and other objects of movable or immovable property or property rights ensures that these documents are correctly drawn up from the point of view of Russian legislation. The notarial form of the agreement in these cases is not always mandatory - sometimes a simple written form is sufficient. But if you want to be confident in these documents, then contact the notary Yuldasheva T.V. - in her office you can certify the deed of gift before its registration at the cost established by law.

Price for a gift deed certificate

The cost of registering a deed of gift for an apartment with a notary consists of two amounts – the notary fee and the price for legal and technical work.

Forms of gift agreement

As mentioned earlier, the DD can be drawn up orally or in writing. Features are regulated by Art. 574 of the Civil Code of the Russian Federation, according to which the mandatory use of written form is relevant in several situations:

• the donor is a legal entity, and the value of the gift exceeds RUB 3,000;
• the contract contains a promise of donation in the future;
• real estate is donated.

Let's look at examples of oral and written forms, as well as situations where notarization is required, in detail.

Oral form

Any gifts worth up to or more than 3,000 rubles can be made orally, if the donated items do not relate to real estate, vehicles and securities:

• furniture and household appliances;
• money;
• smartphones.

You can give anything as long as the item belongs to the giver.

Written form

Written form is required for donating real estate. Such DD was registered in Rosreestr until 2013, but now this rule has been canceled. Now, instead, the transfer of ownership is registered.

Also, a written agreement is required if the donor is a legal entity and the value of the gift exceeds 3,000 rubles. This rule is associated with the need to conduct accounting and prepare additional documents for the transaction in the organization.

Important! If the charter of an enterprise specifies the need to obtain consent for a donation from all owners, it must be obtained by holding a meeting.

Example:

A woman owns an apartment and wants to give it to her son. The property was not purchased during marriage. For the transaction, the parties draw up a written deed of gift, then both appear for registration with Rosreestr.

Legal advice: if the deed of gift does not require notarization, it is still better to contact a notary. His signature and seal will reduce the likelihood of challenging the DD, because confirm that the donor was legally capable at the time of signing, was in adequate condition, and the transaction was not made under pressure from the recipient.

Notary form

A notarial form of a transaction is required in several situations:

• a share in real estate where there are several owners is alienated;
• The property of a child over 14 years of age is donated.

Note! If the donated property was acquired during marriage, you will need the notarized consent of the spouse. Also, a visit to a notary will be required if the parties want to issue powers of attorney to conclude a DD for representatives (third parties).

It is advisable to have the contract certified by a notary if the donor is an elderly citizen. The contract must be accompanied by certificates from a psychiatric and drug treatment clinic. This will protect the recipient of the property from attacks by the donor’s relatives.

Cost of notary services

The notary is paid a fee or notary fee depending on the situation:

How to draw up a deed of gift for an apartment

A deed of gift for an apartment can be drawn up both between close relatives and between people who are not related. In the first case, the transaction will not be subject to personal income tax; in the second, you will have to pay 13% of the value of the property.

In the terms of the deed of gift (agreement), the parties should indicate:

• your passport details;
• address of the property, its cadastral number and full description (area, floor, finishing, etc.);
• rights and obligations of the parties;
• responsibility of the parties.

After drawing up the text of the deed of gift, it is recommended to use the services of a notary. He will check the document and, if necessary, make his own corrections or recommendations to eliminate shortcomings. If the terms of the agreement comply with the norms of Russian legislation, and a package of documents for the apartment (cadastral passport, certificate of ownership, etc.) has been collected, then the notary certifies it with his signature, confirming the legality of this transaction.

After the deed of gift has been certified by a notary, you need to submit the deed of gift and other documents to Rosreestr for state registration of the transfer of ownership. A notary can do this for you.

After submitting the contract and other documents for registration, you will be given a certificate of ownership of the donated property, provided that all documents, including the deed of gift, were completed correctly and submitted on time. The duration of registration depends on who submits the documents and how:

• 24 hours if the notary submits documents electronically;
• 3 days if the notary submits in person;
• 10 working days if the parties submit documents themselves.

When you can't do without a notary

On July 31, 2020, the legislation in the field of real estate transactions changed. (the text of the law is at the end of this article). The bottom line is that such agreements (and donation is also a transaction) now need to be certified by a notary only in certain cases.

They all relate to shared ownership. But if previously any transaction with shares necessarily required contacting a notary office, now the procedure is less strict.

Share in real estate is given as a gift

A notary is not needed if:

• there is only one owner of the apartment, and he gives it away as a gift;
• the sole owner gives a share of his apartment;
• all homeowners donate their shares at the same time (in one deed of gift, this is important).

In all other cases, when donating a share of real estate, it is mandatory to have the transaction certified by a notary. In this case, it does not matter who gives it to whom - close relatives or not.

Actually, the changes in 2020 affected only the last named condition. Previously, all transactions with shared apartments had to be certified by a notary.

If the property is donated as a whole, it is not necessary to draw up a deed of gift with a notary. It doesn’t matter whether the home has one owner or several, whether it is divided into shares, or how many people the gift is intended for.

If the apartment is jointly owned, then it will not be possible to donate a share in it, because the part is not defined. And in the gift agreement it is necessary to name the thing that is being transferred, otherwise it is invalid. To donate part of such housing, you will first have to divide it, and only then the share can be donated (division is also a notarial transaction). Our magazine has an article on this topic, “Giving your share of an apartment to a close relative.”

Spouse's consent required

According to the Family Code, all property acquired during marriage is considered common, even if only one person is indicated as the owner. And if a husband wants to donate some real estate, he needs his wife’s consent signed by a notary (and vice versa).

But there is one exception: if this property was also received under a gift agreement, then the husband/wife is free to dispose of it without asking the spouse or involving a notary.

If the apartment is jointly owned by the spouses, and they decided to give a share in it, then they need to divide the housing either by agreement or by drawing up a marriage contract. Both are done by a notary. Then you will need to register all this with Rosreestr, and then you can formalize the donation of the part. And since we are talking about a share, such a gift requires certification by a notary as a general rule.

If a child is involved in the transaction

Law 218 on state registration of real estate names another case when a notary is needed: alienation of the property of a minor (or incompetent) person. Giving is also alienation, but for nothing. On behalf of children, the law does not allow their parents or guardians to give anything more than 3,000 rubles. Therefore, a child or an incapacitated adult cannot make a gift of real estate (neither the whole nor a share).

However, it is possible to give housing to a child. If this is a whole apartment, then a notary is not needed here; if it is a share, he is needed, but precisely because of the share, and not because a child is involved in the transaction.

By the way, if something is given to a minor, there is no need to notify guardianship. They make sure that property rights are not infringed, but here, on the contrary, there is an increase in property.

Registration of a deed of gift for a share in an apartment

If you need to issue a deed of gift not for the entire property, but for part of it, you must go through the procedure for allocating a share in the apartment, if it has not been completed previously. This is a mandatory condition, since the transfer of an unspecified part of property as a gift, for which no boundaries have been established, is impossible. The procedure can be carried out either by agreement of all property owners or through the court. The contract specifies the size of the portion being donated. Notarization of a donation agreement for a share in an apartment is carried out in the same way as when registering a deed of gift for the entire real estate property. The specialist checks the document, gives his recommendations and makes corrections, and then certifies it with his signature. The cost of the service is calculated in the same way - you can find out the exact price by phone. In the notary office of T.V. Yuldasheva, you can not only have the gift agreement certified by a notary, but also formalize the determination of shares by mutual consent.

Do I need to notarize the gift deed?

Based on the meaning of Art. 574 of the Civil Code of the Russian Federation, a gift agreement can be concluded orally or in writing. At the same time, the law states that in some cases the written form of a deed of gift is mandatory (donation of real estate, gift in the future, and when the donor is a legal entity and the value of the gift exceeds three thousand rubles).

Information

At the same time, the legislation does not provide for the mandatory execution of a deed of gift in a notarial form.

For a gift agreement, notarization becomes mandatory only if the parties so desire (Article 163 of the Civil Code of the Russian Federation). This is also evidenced by Art. 53 Fundamentals of legislation on notaries.

However, it is important to take into account the fact that when donating expensive things (an apartment or its share, a car), the donor needs to think about the issue of contacting a notary to formalize such a transaction. This is necessary due to the fact that quite often there are interested parties (relatives) who may try to challenge the donation of this or that property, and if the deed of gift is notarized, it will be quite difficult or even impossible for them to do this than if the deed of gift were drawn up in a simple form. writing.

This is explained very simply.

The notary acts on behalf of the state, therefore all his actions are aimed at preventing any encroachment on the property of persons applying to him. He acts as an independent person and acts on a professional basis. All its activities are clearly regulated by current legislation. Certification of a donation can be carried out by notaries working in government offices or in private practice.

It is these persons who check the “purity of the transaction” . This may include the following:

• establishing the identities of the parties to the transaction: in this case, not only the passport data is checked, but also the legal capacity of the persons is established, since donations from minors or incompetent persons are directly prohibited by law (Article 575 of the Civil Code of the Russian Federation, Articles 42-44 of the Fundamentals of Legislation on Notaries);
• identification of the will and desire of persons to make a donation (requirement of Article 54 of the Fundamentals of Legislation on Notaries);
• clarification of the content and legal consequences of the deed of gift.

Additionally

Taking into account the above, the activity of a notary in certifying transactions, including donations, carries with it the protection of both the donor and the donee. Those. the very fact of notarization of the donation indicates that such a transaction is legal, and if such an agreement is challenged, the notary can also act as a witness in court proceedings.

As a rule, making a donation with the help of a notary is more expensive than completing it yourself in simple written form, but these costs are justified.

Features of donating real estate to close relatives

A gift agreement between close relatives differs from similar transactions between other persons in that the income received as a result of the gift is not taxed .

The Tax and Family Code of the Russian Federation refers to the concept of close relatives of the following persons:

• spouses;
• ascending and descending relatives - parents and children, grandparents and grandchildren;
• adoptive parents and adopted children;
• siblings having two or one parent in common.

All other persons are not close relatives . A deed of gift concluded between a great-grandmother and a great-grandson will be recognized as an ordinary gift - the donee will be required to pay personal income tax (NDFL).

A real estate donation agreement between relatives can be concluded either in a simple written form or in a notarial form . You can draw up an agreement yourself or seek help from a lawyer.

The donation agreement must indicate the following :

1. Place and date of conclusion.
2. Passport details of the parties to the transaction.
3. All information regarding the subject of the contract: location address, number of rooms, etc.
4. Technical characteristics and features of housing.
5. Property value.

After proper execution of the contract, it is necessary to register the transfer of ownership of real estate in Rosreestr. The agreement itself does not need to be registered if it was concluded after 03/01/2013 (Article 574 of the Civil Code of the Russian Federation).

Who can donate?

The legislation provides broad powers to dispose of property. If the owner wants to donate a share of the apartment, he can become a donor. Of course, if he is 14 years old and understands the meaning of his actions.

Thus, the donor is any legally capable person if he has documents for the alienated share . Example: spouses, parents, grandparents, distant relatives.

Making your own: instructions

Even despite the introduction of a mandatory notarial procedure, the parties can do it on their own. For example, if the donor signs off part of an entire home or the share leaves the joint property of the husband and wife, with the consent of both.

Step-by-step instructions for 2020:

1. The initial meeting is to discuss the future deal.
2. The donor prepares documents for the apartment.
3. Execution of a gift agreement is in simple written form.
4. Make an appointment through State Services, visit the State Budgetary Institution “My Documents” (MFC).
5. Payment of state fees, submission of applications and documents for registration of donation, signature on the deed of gift form.
6. Receiving a receipt for acceptance of documents (names) - it indicates the period after which you can pick up the finished papers.
7. Second visit to the MFC or Rosreestr.
8. Issuance of an extract from the Unified State Register of Real Estate on the ownership of a share in the apartment.

There are no particular difficulties - the main thing is not to make mistakes in the structure of the deed of gift and to collect the entire list of documents. There are cases when registrars are sent to a notary - much depends on the policy of a particular branch of the MFC.