Donate a share without the consent of the second owner. We find out whether it is possible to donate a share in an apartment without the consent of the second owner and whether permission is required for this

Is it possible and how to donate a share in an apartment without the consent of other owners 2020

/ Housing disputes / Is it possible to donate a share in an apartment without the consent of other owners
Donation of shares is considered a rather complicated type of transaction, since it affects the interests of not one, but several owners at once: spouses, children, pensioners, third parties and even the state.

Some people confuse donation with purchase and sale and argue for the right of first refusal - but both procedures have differences. One such difference is the consent of the other co-owners.

Is it necessary to seek the consent of the other owners when donating their share of the apartment? The legislation does not provide a clear answer, but it does clarify some provisions. Let's dot all the i's and look at the issue in more detail.

Do I need the consent of the second owner to donate a share of the apartment?

Alienation of shares during purchase and sale and donation, although they have common features, are still different.

Donating a share of an apartment is, first of all, a gratuitous transaction through which a share is transferred from one person to another person. Registration occurs with the participation of two entities - the donor (owner of the share) and the donee (recipient).

According to paragraph 2 of Art. 246 of the Civil Code of the Russian Federation, the alienation of shares for compensation occurs with the consent of other owners of the apartment. Let us focus on the phrase “exposure for compensation” - it means a transaction when a share is sold to third parties. For example, a shared owner decides to get rid of a share, notifies the second owner, finds a buyer, or sells the share to a co-owner.

Donation is a gratuitous transaction, which means the provisions of Art. 246 of the Civil Code of the Russian Federation are no longer relevant. Therefore, when donating a share of an apartment, you do not need the permission of the second owner . Even if he is clearly against it, the donor is not obliged to wait until he changes his mind. As for the recipient, his consent is mandatory - otherwise the transaction simply will not take place.

When is consent required?

Of course, there are exceptions to any rule. There are a number of situations when consent to donate a share of an apartment will still have to be obtained.

In what cases is written consent required to donate a share:

Common joint property

A striking example is an apartment from the jointly acquired property of spouses. Before alienating a share to a third party, you must obtain the consent of the husband or wife (Article 35 of the RF IC).

This is due to the fact that there is a change in the composition of the joint property - which means that after the death of the donor, the second spouse will not be able to claim the donated part of the housing. Consent resolves controversial issues.

Read about all the nuances with marital property in the article “Allocation of shares in joint property of spouses.”

Note! If a spouse received housing as a result of a gratuitous transaction (inheritance, gift), he does not need the consent of the second spouse to alienate the share under a gift. Permission is also not needed if people are not officially married, but are only roommates.

The recipient is a minor or teenager

If children are involved in the transaction, you need to request permission from the guardianship and trusteeship authority (TCA). On behalf of a child under 14 years of age, his legal representative - mother or father - acts. If a teenager is already 14 years old and has been issued a Russian passport, he participates in the transaction on his own behalf, but with the consent of his mother or father (Article 26 of the Civil Code of the Russian Federation).

Thus, if the gift involves spouses or children, consent is required. Failure to obtain written permission will result in registrars refusing to accept the application.

How to donate a share in an apartment without the consent of other owners

In the section above, we found out that the co-owners of the apartment do not participate in the donation of the share, which means their wishes are not taken into account. The donation procedure follows a standard scenario.

Where to begin?

The first step is to decide where and how to draw up a gift agreement?

The donor has two options:

without a notary - make do with your knowledge;
contact a notary and wait for the result.

Should I contact a notary or can I do without his services? It all depends on the nature of the transaction and the legal status of the property. If you want to allocate a share to a child from jointly acquired property, it is not necessary to go to a notary. Other cases require the participation of a notary office clerk (Article 574 of the Civil Code of the Russian Federation).

Step-by-step instructions, algorithm

The success of the transaction depends on completing all stages of the procedure:

Step No. 1 – Agree on the upcoming transaction with the recipient.

Step No. 2 – Prepare documents, develop a draft deed of gift.

Step No. 3 – Certify the preliminary donation agreement with a notary.

Step No. 4 – Make an appointment at the office to certify the main agreement, have with you:

the original agreement for the donation of a share of the apartment;
original passports;
notarized consent from co-owners (second spouse or child);
approval from the PLO;
document of title – purchase and sale agreement, inheritance document, deed of gift, exchange agreement;
certificate of ownership or a new extract from the Unified State Register of Real Estate;
extended extract from the house register;
power of attorney (depending on the situation).

Step No. 5 – Submit documents for registration to Rosreestr.

Step No. 6 – The recipient receives an extract from the Unified State Register of Real Estate and a completed agreement for the donation of a share.

Documentation

Along with the completed applications, you must submit to the registrar:

passports of both applicants;
a receipt for payment of the state fee (not to be confused with the state fee for a notary);
original gift agreement.

Officials from the MFC and Rosreestr also check encumbrances on the apartment. Usually, for this purpose, they request fresh extracts from the Unified State Register of Real Estate – it is not necessary to provide them separately. There is also no need to submit a paper receipt for payment of the state duty, since it is automatically entered into the database.

Deadlines

The legislator simplifies the registration of donations with Rosreestr authorities. It is not at all necessary to wait in line at the branch - it is much faster to submit an application and documents through the MFC in any locality.

Notarial donation transactions are registered within 3 days (Part 1 of Article 16 of the Federal Law No. 218 of July 13, 2015), although more recently the procedure took about 14-20 days. A request through the MFC will take another 2-3 days to send documents to the Rosreestr branch.

Please note that registration deadlines affect the nature of the transaction. If the donor dies and the gift has not yet been completed, registration will no longer be possible. The alienated share will be included in the inheritance.

What is the price?

A huge number of fraudulent activities forced the state to change the procedure for registering donations of shares. Starting from 2020, such transactions are certified by notaries in order to avoid unpleasant consequences.

The base rate under a gift agreement is 0.5% of the share amount - according to current data from the extract from the Unified State Register of Real Estate. Usually notaries request it themselves. The tax rate cannot be lower than 300 rubles, but cannot exceed the level of 20,000 rubles.

The tariff for notary services depends on the region where the population is served. Don’t be surprised if the total amount is over 5,000 rubles, and in some cases it can exceed the 10,000 ruble mark.

A separate tariff is prescribed for registering transactions in Rosreestr - for making changes to the real estate register in 2020 they charge 2,000 rubles
(Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation).

Who pays the costs - the donor or the recipient? The parties agree on this in advance, but in the case of donating a share to a child, the costs are borne by mom and dad.

Features and nuances

Concluding the review, let us turn to ordinary cases.

If a child is registered in the apartment

The situation can be complicated by the current registration of children aged 1 to 18 years, no matter who the donor is. A prerequisite is permission from the guardianship authority. At the same time, it is necessary to obtain the consent of the teenager’s parents or guardians. It is not allowed that when donating a share to third parties, the rights of children are infringed.

Example:

The mother died, leaving her brother and sister and child each with ⅓ shares of the apartment. The brother initially wanted to sell his share, but the sister was against it because she did not want to share square meters with strangers. Soon the sister found out that her brother had given his share to a stranger without her knowledge. Suspicions crept in that the donation was covering up the sale of the share. It became known that the brother actually received money from the buyer. The sister turned to the PLO in order to protect the interests of her child and understand the problem. Together with the guardianship authority, a claim was filed to declare the transaction invalid. The basis was stated in paragraph 2 of Art. 170, 246, as well as 247 of the Civil Code of the Russian Federation - the brother did not have the right to hide behind a gift and sell his share to a stranger without the consent of the sister and the guardianship authority. The demands were satisfied in full, there was no talk of any gratuitousness, the fact of a sham transaction was discovered, and the deed of gift was declared void. The “donee” had to return the share to the “donor”.

If the share is transferred to a minor child

The happy recipient of the gift can be a child - a close or distant relative. Typically, part of the housing is transferred under a gift agreement as a capital obligation. Read more about this in the article “Obligation to allocate a share to children in maternity capital.”

There is an opinion that donating a share to a child does not involve the participation of the public organization. However, in almost all cases, both notaries and Rosreestr require permission from the guardianship authority. This reduces the risk of an unfair transaction or a gift with reservations (provide a service, pay money). The task of PLO representatives is to check that children’s interests are being observed.

If the share is given to a non-relative

According to paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, absolutely any citizen can be the recipient of a gift, regardless of family ties with the donor. A special feature of transactions with third parties is tax obligations. Close relatives and spouses are exempt from paying income tax - personal income tax.

Distant relatives and strangers are required to pay 13% of the cadastral value of the received share of the apartment .

Often the calculation is based on square meters, for example, if the donor is donating an isolated room. Payment of the fee occurs after registration of the transaction in Rosreestr, no later than April 30 of the year following the reporting year.

Failure to pay income tax is fraught with criminal punishment under Art. 199 of the Criminal Code of the Russian Federation, as well as other sanctions.

If housing is encumbered

The participation of a notary is conditioned by checking the transaction for legal “purity”. The specialist requests a fresh extract from the Unified State Register of Real Estate, which shows whether the apartment is under encumbrance or not? An encumbrance is considered to be an arrest (inventory) by bailiffs, a pledge from a bank, claims of third parties, etc.

Before formalizing the donation of a share of the apartment, you need to remove all encumbrances from it:

The notary's duty is to identify the encumbrance and refuse to certify the gift agreement. This approach makes illegal housing transactions more difficult. But even if the donation happened, and the apartment is under arrest or collateral, the owners have the right to challenge the transaction in court.

The abundance of nuances and pitfalls creates difficulties with donating a share of an apartment. It is difficult for an untrained person to determine when it is necessary to obtain the consent of the owners and when their permission is not required.

To avoid becoming a victim of scammers and to avoid financial penalties, try to enlist the help of lawyers. We offer free consultation from experienced experts in the field of housing law.

Our knowledge will help you donate a share of the apartment even if the other co-owners are against the deal.

Source: https://law-divorce.ru/mozhno-li-podarit-dolyu-v-kvartire-bez-soglasiya-drugih-sobstvennikov/

Is it possible to donate a share in an apartment without the consent of other owners in 2020?

Registration of a deed of gift is a civil transaction, as a result of which another person becomes the owner of the property free of charge.

When concluding a contract, it is necessary to take into account the norms of current legislation. In some situations, you can donate a share in an apartment without the consent of other owners, in others it is not allowed.

If a transaction does not comply with civil law, it may subsequently be declared invalid in court.

Owner's rights

The mode of ownership of property in shared ownership is regulated by Art. 246 of the Civil Code of the Russian Federation.

When is the consent of other owners required?

There are situations when, without the consent of the second owner, a transaction to transfer property as a gift may be declared invalid. Written permission is required if the real estate is joint property of the spouses (Article 35 of the RF IC).

Reference! Permission from the spouse is not required if the share in the apartment or house was received by will or gift, since in this situation it will not be considered common property.

Consent to the execution of a deed of gift may not be issued for property obtained as a result of a voluntary or forced division of property.

Permission from the spouse will not be required for a share in an apartment that was purchased before the official registration of the relationship.

The interests of a child under 14 years of age can be represented by one of his parents. A teenager over 14 years of age has the right to independently participate in the transaction, but with the consent of their legal representatives.

Transaction procedure

The deed of gift is drawn up in a notary office (Article 574 of the Civil Code of the Russian Federation). The document must be certified if the apartment is in common shared ownership, and one of the owners alienates his part.

If, as a result of the transaction, the donee becomes the sole owner of the property (all shares are assigned to him), it is not necessary to visit a notary.

The contract does not need to be registered if it was concluded after 03/01/2013, but you will need to certify the transfer of ownership of the housing.

The step by step procedure is as follows:

Obtaining consent to enter into a transaction from the donee.
Preparation of documents and donation agreements.
Obtaining the consent of other owners (if necessary).
Certification of the agreement in a notary office (if required).
Transfer of documents to Rosreestr.

You can prepare a deed of gift agreement yourself or use a template from a notary office.

The following documents must be prepared for the notary:

original passports of both parties to the transaction;
gift agreement (you can draw it up yourself or order it from a notary for an additional fee;
consent of the spouse if the applicant is married (if necessary);
extract from the house register;
title documents for real estate ownership;
extract from the Unified State Register of Real Estate;
certificate of absence of debt for utility services;
notarized power of attorney if documents are transferred by a third party.

To register the transfer of ownership, you must contact Rosreestr or the MFC.

For the procedure you will need to prepare:

original passports;
receipt of payment of state duty;
original deed of gift.

Participants in the transaction can submit documents for registration of rights through the Rosreestr website. The application must be certified by an electronic digital signature. Documents can be sent directly by a notary and signed with his digital signature.

Employees of Rosreestr or MFC will check the presence of encumbrances on the property by requesting an extract from the Unified State Register of Real Estate. Therefore, it is not necessary to provide this document in paper form.

Price

The expenses (cost) of registering a transaction consist of payment for notary services and state fees for registration actions in Rosreestr. For certification of the contract, the official must pay 0.5% of the current value of the real estate share indicated in the extract from the Unified State Register of Real Estate.

The minimum cost is 300 rubles, the maximum is 20,000 rubles. Notaries may charge a fee for additional services, such as drawing up an agreement. The cost depends on the region of residence.

The state fee for registering the right to real estate is 2,000 rubles. (Article 333.33 of the Tax Code of the Russian Federation). The duty can be paid by any of the parties to the transaction. Expenses for a minor are borne by his parents.

Deal Features

Features of the transaction may depend on who are its participants:

If a child is registered in the apartment. The deed of gift is drawn up according to the general principle.
If the share is transferred to a minor child. The agreement must be notarized. You will need to contact the Public Prosecutor's Office if the minor does not have a guardian. Representatives of the government agency will represent the interests of the child when concluding a transaction even if the donor is his single mother.
How to donate a share if the housing is encumbered. It will be possible to issue a deed of gift for a share in the apartment only after the encumbrances are removed. Notarization of a transaction is one of the guarantees that in the future there will be no doubts about its authenticity. The official requests an extract from the Unified State Register of Real Estate, from which one can see the presence or absence of encumbrances. This includes the seizure of property, its use as collateral, and possible claims by third parties on it.
If the share is given to someone other than a relative or a close relative. In accordance with Art. 572 of the Civil Code of the Russian Federation, your share in the apartment can be transferred to any citizen. In this case, the presence or absence of family ties between the donor and the recipient does not matter. But the recipient will have to pay taxes in the amount of 13% of the cadastral value of the property.

Attention! Spouses, parents and children of the owner of the premises are exempt from collection into the state treasury.

The tax must be paid after state registration of the right by the new owner, before April 30 of the following year.

A gift agreement is more difficult to challenge or terminate than other types of agreement.

The court may declare the transaction invalid on the basis of the following (Article 578 of the Civil Code of the Russian Federation):

deliberate attempt on the life and health of the donor by the donee;
in case of careless handling of real estate, which may lead to its loss;
if the contract states that the donor’s right to the share is returned if he lives longer than the donee;
if the transaction contradicts current legislation;
when concluding a contract by an incapacitated citizen, a minor;
if the deed of gift was drawn up under the influence of significant misconception, deception, or under the threat of violence.

To draw up an agreement to donate a share in an apartment, the consent of the other party to accept it is required. The donee has the right to refuse the transaction at any time before registering the right to real estate (Article 573 of the Civil Code of the Russian Federation).

In this case, the agreement will be considered terminated. If the deed of gift is in writing, then the refusal must also be drawn up on paper. If the transaction has been registered, you will need to contact Rosreestr again to cancel the changes.

To donate a share in an apartment without the consent of relatives and other co-owners, it is necessary to draw up an agreement, have it certified by a notary office and register the changes in Rosreestr. Any citizen can act as a donee, and the consent of the co-owners is not required.

If the donor receives a sum of money or other material benefit from the donee, for example, repayment of a debt, then the agreement may be declared invalid in court at the initiative of other apartment owners.

You can file a claim for cancellation of the deed of gift within 1 year after the owner learned or should have known about the transaction.

Source: https://zakonportal.ru/imushhestvo/podarit-dolyu-v-kvartire-bez-soglasiya-drugih-sobstvennikov

Free legal assistance

In this case, the owner of the share must follow the same regulations: allocate part of the share and initially offer it to other owners. If a refusal is received from the co-owners of the apartment, it will be possible to get rid of the sold part of the share only in one of the following ways: • Donate part of the sold share (micro share) to someone, and then sell the rest to the recipient, who, as the owner, receives a pre-emptive right to purchase.

Thus, if in a one-room apartment with an area of 40 sq.m. If a share of 1/2 is allocated, then the applicant of the procedure will receive the right to further sale of 20 sq. m. of housing. The share in the apartment may be so large that its owner will want to sell only part of the property he owns.

We recommend reading: Is it possible to file a declaration for an income tax refund in 2020 for an apartment purchased in 2020 for a working pensioner?

Is it possible to donate a share in an apartment without the permission of the second owner?

If a citizen of the Russian Federation has personal property, he has the right to dispose of it in his own interests according to the law. When two or more people own joint property, then when carrying out actions with the property, including alienating their own share, it is necessary to have the approval and written consent of the remaining owners.

Do you need consent for donation from other owners?

A donation is defined as a gratuitous agreement; the provisions of the article do not apply to it. The parameters of such a transaction are based on information about the number of owners, the moment of ownership and the reasons for this, the beneficiary and the possible option of alienation of the housing share.

When spouses purchase an apartment using common funds, each becomes the owner of half of the property.

For example, if a husband wants to give his own share to a child, this will be possible if the wife agrees and confirms her consent in writing.

It is important to consider that if the father's part was allocated in kind, then formal consent would not be required. “In kind” means the allocation of a specific measured portion of real property that is owned by the owner.

Options for when consent is required

When alienating a share of housing, confirmation of the owners of the residential premises is necessary if:

A married couple owns a home jointly. If one of the spouses intends to donate a share, then the other must give notarized written confirmation (Article 35 of the RF IC).
The husband and wife divorced, and the share of both in kind was not allocated. Consent is necessary, but one of the spouses does not need to be present in person; documents are drawn up and transmitted remotely.
The beneficiary is a minor child. In this situation, the consent of the guardianship authority is necessary. If the age is more than 14 years, he signs the agreement with his own hand if at least one parent agrees (Article 26 of the Civil Code of the Russian Federation). When he is under 14, the contract is signed by any of his representatives.

Attention!

An unregistered couple who inherited a property or received it as a gift (free of charge) does not have to give written consent.

It turns out that if the participants in the gift agreement are minors or spouses, consent is a prerequisite.

In what cases is consent not required?

It is quite possible to donate part of residential real estate without consent if it is presented in kind. The donor interacts with the recipient, they visit the notary with the necessary documents. After drawing up, signing and notarizing the agreement, the beneficiary must register the resulting ownership right in Rosreestr.

Stages of organizing the procedure

Necessary steps in the donation process:

Analysis of every detail of the transaction
Collection of documents
Drawing up a draft deed of gift
List of documents:

draft agreement;
document confirming the identity of each participant;
proof of the relationship of the signatories, if they are relatives (this will exempt the recipient from income tax);
consent of the owners (notarized);
a document confirming the absence of delays in utility services;
approval of the PLO transaction if the recipient has not reached the age of majority;
certificate of the number of registered people;
a document confirming the right of ownership (sale and purchase agreement, exchange, etc.);
those. passport;
extract from the house register;
certificate of ownership or extract from the Unified State Register of Real Estate.

Signing the contract
The collected documents are transferred to Rosreestr to register the property of the donee
Extract from the Unified State Register of Real Estate.

Cost of organizing the donation process

There is a limit from 300 to 20,000 rubles. For example, if the cost of the object is 4.5 million rubles, then the amount of the state duty according to the calculation should be

A notary provides paid services, and this leads to additional financial burden; the average rate is 5,000 rubles . You can register a share of the apartment in your name by paying 200 rubles . (Article 333.33 of the Tax Code of the Russian Federation), if the area in a residential building is transferred - 2,000 rubles.

Taxation

If the giver and recipient are relatives (spouses, parents, grandparents, children, sisters and brothers, grandparents), the beneficiary may not pay the tax absolutely legally (Article 217 of the Tax Code of the Russian Federation).

Contract period

There is no specific deadline. The parties themselves determine when to use the services of a professional. There is also no time frame to legally register ownership.

But it is not entirely rational to delay the process; in the event of the death of the donor before the registration of a new right of ownership, the share will become part of the inheritance, and the recipient, who is not an heir, will not be able to take possession of the housing.

Specific features

Key points to consider when making a transaction:

The transaction is free of charge, so the beneficiary cannot demand any counter-obligations.
The description of the alienated property must be clear and specific. It is necessary to indicate the size of the share, the entire area of the living space, how many rooms, where the object is located, what cadastral number it has. There must be a link to documents establishing ownership rights.
If the signatories are not relatives, it is definitely worth noting who will pay all the costs for the operation.
Agree under what circumstances the contract can be terminated.
It is necessary to write out all the donor's guarantees on the property. For example, that the premises are not mortgaged, and other encumbrances are not allowed.
Only when information about the change of owner is entered into the Unified State Register of Real Estate, will an extract confirming ownership be issued, and the real estate or part will be transferred to its recipient.

If a child is registered

If a minor lives and is registered in a house or apartment, the guardianship authorities must provide confirmation of the donation procedure. And who the child is for the donor is completely unimportant. This is done in order not to infringe on the rights of persons under 18 years of age. The transaction will be declared invalid if the PLO does not give consent for any reason.

What are the features of the process when the status of the recipient is a minor?

Some donors think that confirmation of the PCO is not at all important, and there is no need to request it, because the child acts as a beneficiary, and no rights are violated here. However, you need to be very careful; there is always the possibility of a transaction being carried out in bad faith or an agreement being drawn up that contains pitfalls.

For example, the recipient is going to purchase a share of an apartment, provided that he will support the donor throughout his life. And here it is necessary to check whether the interests of the child are not violated, and whether the draft agreement was drawn up in good faith.

Causes

It is necessary to transfer part of the living space free of charge for various reasons.

For example, donating part of an apartment to a minor may be caused by the donor’s desire to provide the child with residential real estate.

Unlike a will or inheritance by law, a deed of gift comes into force immediately after the registration of the right.

In addition, it is much more difficult to challenge, and there is little basis for this. That is why this type of contract is considered one of the most reliable.

Giving a share of an apartment to a spouse may be motivated by a desire to do something nice and present an expensive gift. A deed of gift is drawn up in favor of a close relative due to the low cost of completing the transaction.

There is no tax paid when making such a gift, which is why this transaction is popular. It is worth remembering that if the essence of the agreement is replaced, the article on imaginary and feigned transactions may be applied.

Read about how to issue a deed of gift for your mother, son or daughter in this article.