Recognition of a real estate transaction as void

Is it possible to challenge a deed of gift or will?

A citizen who has full legal capacity is free to make any transactions not prohibited by law with his property, which he owns by right of ownership. He can sell his movable or immovable property, exchange it, rent it out or donate it.

If a person wants to dispose of his property posthumously, then ordinary bilateral alienation transactions cannot be applied here.

According to Article 1118 of the Civil Code of the Russian Federation (hereinafter also referred to as the “Civil Code of the Russian Federation”), property can be disposed of in the event of one’s death only by drawing up an order, and in no other way. Many people confuse a will and a deed of gift, although there is a huge legal difference between them.

What is the difference between a deed of gift and a will?

A deed of gift is a gift agreement - a bilateral transaction, the legal rules for the execution of which are regulated by Chapter 32 of the Civil Code of the Russian Federation.

Under this agreement, one party (referred to as the donor), who acts as the owner of the property, transfers to the second party (referred to as the donee) the property specified in the agreement into ownership free of charge.

If real estate is given as a gift, then the transfer of the right to it under a gift agreement is subject to mandatory registration with the Rosreestr authorities.

The most important condition of the donation agreement is that the transfer of property as a gift must be made during the life of the donor. According to the direct instructions of Art. 572 of the Civil Code of the Russian Federation, the contract cannot provide that property is transferred as a gift after the death of the donor. If such a condition is contained in the agreement, then this agreement will be considered void.

The norm of Article 572 of the Civil Code of the Russian Federation is fully consistent with the requirements of the already mentioned above Article 1118 of the Civil Code of the Russian Federation, according to which, in the event of death, property can be disposed of exclusively through the preparation of a will.

Thus, a deed of gift must be drawn up and its terms must be implemented strictly during the life of the donor, but a will is drawn up, naturally, during the life of the testator, but its conditions on the distribution of the testator’s property begin to apply only after his death.

This is the key difference between a deed of gift and a will. Unknowingly, many people draw up deeds of gift under the condition of death. Such agreements are void and do not create legal consequences.

If property can be transferred by gift at any time, as soon as such an agreement is concluded, then the heirs will be able to receive property through a will no earlier than six months from the moment the testator leaves for the best of worlds. A six-month period is given for the conduct of the inheritance case, when potential heirs can claim their rights to the property.

In the event that the deed of gift was drawn up according to all the rules during the life of the donor, and the property was transferred to the recipient of the gift (including, all rights to real estate were registered in Rosreestr), then such property will no longer be included in the inheritance estate, because that it will have a new owner.

In the deed of gift, the donor can indicate absolutely any person as the recipient of the gift - be it a relative or a complete stranger. If the donee signs a gift agreement, then he agrees to accept such a gift.

The donor is not burdened with any conditions regarding obligatory donees - the Civil Code of the Russian Federation establishes the principle of freedom of contract, accordingly, the donor himself determines who and what he gives.

The situation with a will is somewhat different. According to Article 1119 of the Civil Code of the Russian Federation, the testator also has freedom of testamentary will and can provide for any circle of his heirs in it. However, this same article limits the will of the testator from absolute to relative.

The law says that regardless of who is indicated as an heir in the will, the obligatory share in the inheritance must be received by the persons specified in Article 1149 of the Civil Code of the Russian Federation, namely:

• Disabled parents or children, as well as minor children of the testator;
• Other disabled dependents who were supported by the deceased for at least a year before his death.

No matter who is indicated in the will, these persons will in any case receive their share, even if this entails a reduction in the inheritance shares of other heirs that are indicated in the will.

Another very significant difference between a gift and a will is the tax burden.

According to Articles 224 and 227 of the Tax Code of the Russian Federation (hereinafter also referred to as the “Tax Code of the Russian Federation”), a tax is paid on property received as a gift at a rate of 13% of the cadastral value of the apartment. Only close relatives of the donor are exempt from paying tax if they act on the side of the donee.

Read about how you can challenge a will for an apartment here.

The circle of close relatives is determined according to the norms of family law. If the recipients of the gift are other persons, they will have to pay tax at the established rate. And if the recipient of the gift is a non-resident of the Russian Federation, then he will need to pay 30% of the cost as a tax transfer.

The tax on inherited property is currently not paid - it was abolished back in 2005. Now, when registering an inheritance, you only need to pay the state fee (tariff) to the notary, who issues a certificate confirming the rights to the inherited property.

The state duty (tariff) is determined by clause 22 of Article 333.24 of the Tax Code of the Russian Federation, and is charged in the following amounts:

• 0.3% of the value of the estate, if the heirs are the parents, spouse, children, sisters or brothers of the testator (in this case, the maximum amount of payment of state duty should not exceed 100,000 rubles);
• 0.6% of the value of the inheritance when other persons inherit (in this case, the maximum amount of state duty will be limited to 1,000,000 rubles).

In addition to all of the above, a deed of gift differs from a will in the varying degrees of possibilities for challenge.

Is it possible to challenge a will?

If the will is declared invalid, then its terms will not be applied and the inheritance will be carried out within the framework of the order established by law, or an earlier will, if there was one.

To challenge a will, according to Article 1131 of the Civil Code of the Russian Federation, is allowed only after the death of the testator. Because a will is a one-sided transaction; the general provisions of the Civil Code of the Russian Federation on the invalidity of transactions apply to it.

But the will will also be subject to other specific rules, which are established in Chapter 62 of the Civil Code of the Russian Federation. This chapter establishes additional regulations for the form and content of a will.

Thus, a will can be challenged on two groups of grounds at once - general civil and special norms of Chapter 62 of the Civil Code of the Russian Federation.

Is it possible to challenge a deed of gift?

If the property passed to the recipients of the gift and became their property, then such property is not included in the inheritance mass, because it is no longer the property of the testator. Heirs who doubt the legal validity of the deed of gift can go to court with demands to declare it invalid and return the property for inclusion in the estate.

In general, there are fewer grounds for declaring a deed of gift invalid than for a will. The grounds for declaring a deed of gift invalid are general civil ones, as well as those provided for in Chapter 32 of the Civil Code of the Russian Federation.

As a rule, the main part of the violations associated with deeds of gift is, as noted above, the indication in the text of the agreement of the conditions under which the gift becomes the property of the donee only after the death of the donor. These wordings in the text of the agreement will entail the nullity of the agreement from the very beginning of its conclusion.

The law divides invalid transactions into subtypes:

• Void (invalid from the very beginning);
• Disputable (the fact of invalidity of which is established by the court).

Both a deed of gift and a will can be either voidable or void - in the first case, this will be established by the court during the trial of the case, in the second, the court will only confirm the fact of nullity.

But in any case, if the transaction is declared invalid, it will not entail any legal consequences.

In this case, there will be more grounds for invalidating a will than for recognizing a gift agreement as such.

Voidable transaction

Voidable transactions

on the contrary, they require recognition of their invalidity by the court if there are grounds provided for by law.

Voidable transaction

, like a void transaction, is an invalid transaction and, by virtue of clause 1 of Article 167 of the Civil Code of the Russian Federation, does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment of its completion.

Types of voidable transactions:

• A transaction that contradicts the requirements of the law or other legal act;
• A transaction of a legal entity made in conflict with the goals of its activities;
• A transaction completed without the consent of a third party, a body of a legal entity or a state body or local government body required by law;
• A transaction made by a minor aged fourteen to eighteen years;
• A transaction made by a citizen whose legal capacity is limited by a court;
• A transaction made by a citizen who is incapable of understanding the meaning of his actions or managing them;
• Transactions made under the influence of a material misconception;
• A transaction made under the influence of deception, violence, threat or unfavorable circumstances.

Forbidden

It is more profitable for the heir to draw up a deed of gift. It is almost impossible to challenge a gift document and the property automatically passes into the possession of the recipient. He has the right to dispose of the property after registration of the agreement.

If we talk about a will, then the right of inheritance is received only six months after the death of the testator. Video: Which is better, a deed of gift or a will? What is easier to challenge: a deed of gift or a will? In order to challenge any document, you must prove in court that:

• The donor or testator was insane at the time of signing the document due to mental or physical illness or under the influence of drugs, medications, or alcohol.
• The donor or testator signed the document not of his own free will, but under the threat of his life.

Remember! A will and a deed of gift can equally be challenged in court, but it is quite difficult.

Types of void transactions

Void transactions are void from the moment of their conclusion.
The term “invalidity of a transaction” means that it does not create new rights or obligations, does not change or terminate existing ones due to its non-compliance with the law. Civil legislation classifies several types of void transactions: - a transaction made by a person who, due to age or mental state, could not understand the nature and essence of his actions. This category of persons includes minors or children under the age of 14, completely incompetent or partially incompetent persons recognized as such in court: those suffering from mental illness, alcohol abusers, drug addicts. On behalf of such citizens, contracts are concluded by representatives authorized by law - parents or guardians; - a transaction that does not comply with the law. Transactions that directly or indirectly violate the law and other by-laws are declared invalid from the moment they are committed. For example, transactions made with property that was previously obtained through theft; - imaginary - a transaction made only to create the appearance of concluding a transaction, but in essence, not aimed at creating mutual obligations and legal consequences. An imaginary transaction will be considered an agreement on the donation of property by a person against whom a court decision has been made to confiscate or seize the property; - feigned - a transaction made for the sole purpose of covering up the completion of another transaction with its form. The most common example is the replacement of a real estate purchase and sale agreement with a gift agreement for the purpose of subsequent tax evasion; - transactions with vices of will - this is how feigned and imaginary transactions are designated in the science of civil law, due to the fact that the will of the persons concluding them and their real intentions do not coincide; - a transaction made for purposes that contradict the foundations of morality and law and order. In essence, these are actions that violate the moral norms of society, the economic and social foundations of the state. It is also customary to call this kind of transaction “anti-social”. An example of this is an agreement with a forged signature of one of the parties.

What is better - a will or a deed of gift for an apartment?

• 1 Is it possible to challenge a deed of gift?
• 2 Who and how can challenge a deed of gift for an apartment or house
• 3 In what cases can a gift agreement be challenged and declared invalid 3.1 After the death of the donor
• 3.2 After state registration

Today, you can transfer your property to another person through the conclusion of a purchase and sale agreement, as well as as a result of a gratuitous donation formalized by an appropriate agreement.

The procedure for challenging transactions of a bankrupt debtor on the basis of Federal Law No. 127

The bankruptcy procedure is usually initiated by the creditor bank filing an application with the arbitration court. It is enough for the debtor not to repay a loan in the amount of 500 thousand rubles for three months. Bankruptcy involves the seizure of bank accounts of a citizen or company, the appointment of a financial manager, the inventory and sale of property to pay off financial obligations.

It is easier for a lawyer of a creditor bank to challenge transactions of a debtor undergoing bankruptcy proceedings. The challenge process does not require the collection of financial documents; it is enough to prove the suspicious nature of the transaction for the court to side with the creditor. According to articles of Federal Law No. 127, any of the following arguments is sufficient to challenge transactions:

1. The terms of the transaction differ significantly from those accepted on the market. Based on unequal execution (for example, a reduced price, a shortened period for transferring funds), the court may invalidate any transaction.
2. The terms of the transaction significantly worsen the financial position of the debtor. Article 61 of Federal Law No. 127 gives the bank’s lawyer the right to challenge a transaction that causes economic damage to the debtor. For example, the sale of an apartment at a price different from the market price, the presence in the purchase and sale agreement of additional financial requirements for the seller.
3. The terms of the transaction clearly benefit one of the debtor's creditors. According to the third part of Article 61 of Federal Law No. 127, the transaction of a bankrupt debtor can be challenged if the terms of the sale entail the provision of preference (economic benefit) to one of the banks. For example, a debtor sells property to fully pay off a debt in one bank, but does not make payments on other loans.
4. The transaction has disproportionate market conditions and was concluded within a year before or after the onset of bankruptcy. In practice, the lawyer of the creditor bank checks all contracts for the sale of property drawn up during the period of non-payment of the loan and the beginning of the debtor’s bankruptcy. If the terms of the contract differ from those accepted on the market, the transaction can be challenged.

Bank lawyers have a high chance of challenging transactions of bankrupt debtors; the defendant in the case must independently prove the absence of intent when signing contracts. The debtor is in a less advantageous position; the court, by default, is suspicious of all concluded transactions.

Is it possible to challenge a deed of gift for an apartment or house (before and after the death of the donor)

How much will it cost to prepare these papers and accept the property:

• Preparation of both versions of papers can be free. However, the will is certified by a notary, the cost of this procedure is 100 rubles;
• The inheritance tax has been abolished, but the gift tax remains. However, the gift is not subject to taxes if it is made between close relatives. Acceptance of the estate by way of inheritance gives rise to the obligation to pay state duty at a rate of 0.3% for relatives and 0.6% for other heirs.

The tax and duty rates are calculated based on the value of the transferred property.

Thus, you can accurately calculate the cost by knowing how much the property is valued at and how close the parties to the transaction are. At the same time, it is beneficial to conclude a deed of gift only between close relatives, and a will between other persons.

Deed of gift or will? detailed consideration

Can relatives challenge a deed of gift? As previously noted, the right to challenge a gift agreement can be transferred by the relatives of the donor only if the donor himself has died. Due to the fact that they are not parties to the agreement, the law gives them a longer period during which they can make a claim.

This is due to the fact that they may not know that the rights to the real estate were transferred free of charge to a third party. To challenge, the interested relative must go to court and provide objective evidence.

Is it possible to return an apartment after donation? In practice, it is quite difficult to return property donated on the basis of a concluded agreement. To do this, it is necessary to submit information to the court confirming the facts of violation of the terms of the agreement.

What is the difference between an imaginary transaction and a contestable one?

Insignificant are a type of real estate transactions that were carried out with gross errors and violations, on the basis of which they were initially illegal. Simply put, those real estate transactions that essentially could not be concluded are void. For example: if you entered into an agreement with a person who did not have the appropriate authority to sell an apartment or house, that is, did not have ownership rights to the real estate, and after signing the documents and receiving the payment simply disappeared from view, then this operation is considered void.

The recognition of an operation as void is carried out on the basis of a court decision, despite its actual nullity at the time of its commission. The list of frequently encountered void transactions includes the following:

• prisoners with citizens recognized as incompetent or partially capable, that is, having complex psychoneurological diseases;
• prisoners with minor citizens until the latter reaches the age of 14 years. Such an operation can be challenged in the conditions of representation of the interests and rights of a minor citizen by a parent or guardian;
• fictitious, drawn up only formally and having no real force. As an example, we can cite cases of concluding a donation agreement with a parallel transfer of funds for the object of donation;
• involving the purchase and sale of real estate that is pledged or under arrest;
• outright fraudulent (for example, when committing the work using counterfeit papers, using dummies or alternative fraudulent tricks). In order to initiate a procedure to challenge such transactions, a preliminary criminal case on the grounds of fraud will be required.

A voidable transaction is one that requires recognition of illegality by going to court. It is the court decision that is fundamental in this case; in turn, judges are engaged in establishing the sufficiency and objectivity of the grounds that the applicant cited in the claim. Most often, transactions with real estate related to inheritance rights are contestable. For example, if during the division of real estate the legal rights of one of the heirs were violated. Satisfaction of challenges is possible subject to confirmation of their legality.

The list of the most common contestable real estate transactions includes the following:

• committed in the absence of consent from a third party or the relevant government body that is authorized to issue this permit. To initiate the procedure for challenging a transaction in the form of the purchase and sale of housing, it is necessary to file a statement of claim by a third party;
• committed under the condition that one of the persons participating in the operation was in a state of drug or alcohol intoxication;
• characterized by misleading one of the participants in the transaction by providing a distorted picture of the consequences of concluding an agreement or refusing to inform about the likely consequences;
• committed in conditions of influence on one of the participants in the transaction by a third party.

In fact, the difference between void and voidable transactions lies only in the degree of violation of the current legislation. The former are illegal from the outset, while the latter become so if sufficient evidence is provided.

Will or deed of gift? pros and cons of each option

The process of making a will A will (for an apartment, house, car and other property) provides for the following actions:

The testator's wishes must be clearly stated. The testator needs to define his own will regarding the division of the inheritance as precisely as possible in writing to avoid ambiguity or misinterpretation.

And the paper must be drawn up in accordance with existing legal requirements.

Establish the share of each of the heirs mentioned in the will. A clearly stated share for the heirs will free the latter from unnecessary strife.
It is not recommended to use joint ownership for this purpose. If there is more than one heir, then for each unit of real estate, allocate a specific heir or his part in the inherited property.
• Subappointment of heirs.

Limitation periods for real estate transactions

According to parts one and two of Article 181 of the Civil Code of the Russian Federation, the limitation period for recognizing and applying the consequences of invalidity of void contracts is equal to three years. This period is counted from the date of execution of the void agreement. If the applicant, according to the statement of claim, is a person not directly involved in the transaction, then the period is counted from the moment when he received or should have received information about the entry into execution. The statute of limitations in this case may be increased, but not more than ten years, starting from the date of execution of the transaction.

In the case of a voidable property transaction, the statute of limitations is one calendar year. This period is counted from the day when the pressure in the form of threats, blackmail and violence on the participant in the operation ceased, and in other cases - from the moment of receipt of information about the circumstances under which the contract may be invalidated.

Differences between a deed of gift and a will: which is better and more profitable

• What is the difference between a deed of gift and a will?
• Which is better: a will or a deed of gift for a house?
• Which is cheaper?
• What is being disputed in court: a deed of gift or a will?

When choosing how to transfer your property to another person, you should weigh the pros and cons. Moreover, if the choice is between a gift agreement and inheritance.

What is better and cheaper? What should the owner do? What is the difference between a deed of gift and a will? The difference between these two documents is fundamental. If we turn to their original legal purpose, then:

• deed of gift is a way to transfer any property free of charge. The parties to the transaction are the donor and the donee;
• will - a document that transfers the property of the testator to the heir after the death of the first.

As can be seen from the definitions, the differences lie in the very essence of the purpose of these papers.

Challenging an apartment purchase and sale transaction

Challenging a transaction for the purchase and sale of an apartment
A contestable transaction is a transaction that requires recognition of its invalidity in court, if there are serious legal grounds for this.

Challenging the transaction and the agreement for the purchase and sale of an apartment involves the interested parties filing a claim in court that, when concluding the agreement, their rights to the apartment were not taken into account or were violated. For example, an heir whose rights were not taken into account when disposing of an inheritance (apartment) may file a lawsuit to invalidate the transaction for the disposal of this property.

In voidable transactions, the law allows a person to decide for himself whether to resort to a judicial form of protection of his right or not (for example, to reach an amicable agreement with the other party).

The result of challenging a real estate transaction may be a court decision on its invalidity (or validity), based on the circumstances of the case.
If I sell my apartment and buy another, what should I do? How to organize an alternative transaction - see the link.

Deed of gift or will

Who and how can challenge a deed of gift for an apartment or house? Do you need help? Consult our lawyer for free! Laws in our country change very often! Get the latest information by phone! Just call from any region of Russia: Or contact our online consultant! First, let's figure out who can challenge a deed of gift? The law, among all the persons who are interested in invalidating the agreement, identifies the following entities who have the right to challenge the document:

1. First of all, it is the donor himself. He can exercise his right only in a few cases;
2. Relatives of the donor.

The agreement is drawn up in writing and submitted for state registration.

1. Property valuation is paid.
2. Notarization fee is required.
3. An interest rate is paid for issuing an inheritance document (from 0.3 to 0.6%).
4. The notary is paid to conduct the inheritance case before the certificate is issued.

Taxes A gift tax in the amount of 13% personal income tax on the value of the inheritance must be paid by the donee if he is not a close relative. To obtain property you will need to pay:

• Inheritance tax (if it exceeds the size of the MMORT by 850 times).
• State duty for inheritance.

Possible problems The donor must remember the responsibility that the gift deed places on him. After all, it will be impossible to change the decision or correct any points. However, for the recipient this is a guarantee of security.