Agreement for donating a share of an apartment to children using maternity capital (sample)

Maternity capital is a form of government support for Russian families raising two or more children. The opportunity to receive it arises for parents at the birth or adoption of a second or subsequent child. This right is certified by a state certificate.

However, in addition to rights, parents also acquire a number of responsibilities, and one of them is to allocate a share when buying a home using mat funds. capital. The parents themselves decide in what way this obligation must be fulfilled - they have the right to draw up an appropriate notarial agreement or enter into a gift agreement .

Notarial obligation to allocate shares when purchasing housing using maternity capital

As mentioned earlier, the birth of a second and subsequent children in a Russian family gives the right to receive maternity capital. Along with this, there is an obligation for parents to allocate a share to their children in the residential premises.

Important

If housing is purchased with maternal capital, whether it is taken out on a mortgage or not, then such property must be registered as the common joint property of all family members. However, if this was not done immediately, then the Pension Fund of the Russian Federation must submit a corresponding obligation, drawn up in writing and certified by a notary.

The certification of the obligation takes place in a notary office, which can be either private or public. However, there are cases when there is no notary in a locality, then his functions in this part can be performed by the head of the administration of the settlement.

In order to notarize such a document, you must have with you:

identification document of the husband and wife (passport or certificate from the passport office);
children's birth certificates;
a document confirming the availability of maternity capital (certificate);
information confirming the purchase of housing;
certificate of state registration of ownership of real estate;
mortgage agreement (if any).

Notarization is a paid service, the cost of which, as a rule, does not exceed 300-500 rubles . The district prosecutor's office, guardianship and trusteeship authorities monitor the fulfillment of obligations, namely, exercise control, and in case of non-fulfillment, file a claim against the owner of the certificate.

Donation of a Share of a House Purchased for Mat Capital

What does it mean? I thought that this was a site where people would tell me how to act and give specific advice, and would not put down a person who does not understand legal issues. The easiest way is to insult a person. People, look at yourself first, and then judge others!

Christy, in order to give advice, the person receiving the advice needs to understand it, i.e. had at least some knowledge in this area, but just a person on the street can misunderstand the advice, in addition, almost every situation has its own nuances that you consider unimportant, but for a lawyer they are important. If you describe all possible options, it will take as much time as the corresponding course of lectures at the university takes. Those. Roughly speaking, advice to me or VTB on electric welding will not make us welders without appropriate training. Therefore, it is better to contact a lawyer in real life

10 Jun 2020 lawurist7 186

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Fulfillment of the obligation to provide children with shared ownership of housing

When purchasing a home with funds from maternity capital, parents can transfer part of the property to their children both immediately and in the future, formalizing such a promise with a notarial obligation. The size of the parts of the allocated property is determined by the spouses themselves.

According to the agreement on determining the shares

This agreement can be drawn up either with a notary or independently. Mandatory certification at a notary's office is not required , but in this case, there is no guarantee that the document will be drawn up legally correctly and the registering authority will accept it.

The agreement on determining shares must indicate:

name - agreement on determining shares;
date and place of document preparation;
details of both parents, last name, first name, middle name, passport information;
information about minor children;
the purpose for which maternity capital is spent;
the size of the share of each family member;
information about real estate - area, cadastral number, type of property;
handwritten signatures of the parties with transcripts.

Information

To draw up an agreement with a notary, you must pay an amount of 1500-2500 for the service provided. There is no single form that would suit any employee of the registration authority.

Under the agreement of donating shares to children for maternity capital

The transfer of shares under a gift agreement to minor children is currently gaining popularity due to the fact that parents want to reliably ensure the future of their children. In this case, the deed of gift must be drawn up in writing and sealed with the signatures of the participating persons. It is advisable to have this agreement certified by a notary office, but this action is not mandatory under the legislation of the Russian Federation.

The agreement for donating a share of housing to a child must indicate:

information about the parties to the transaction;
passport details of the participating persons, as well as place of registration;
description of the subject of the deed of gift, namely information that is reflected in the title documents for this property (location address, area, number of residential premises, floor, cadastral or inventory number.

Attention

A necessary condition for concluding such an agreement is the presence of a legal representative of the donee - father or mother, trustee, guardian. After registration of ownership, the property will belong to the minor child.

After the latter turns 14 years old , he will receive the right to use and dispose of such a gift, but only with the consent of the guardianship and trusteeship authority. He will receive full rights of disposal, use and ownership only upon reaching the age of eighteen .

Donating an apartment using maternity capital: features of the process

An experienced lawyer will not allow the contract to be drawn up incorrectly and the participation of incapacitated persons in it without their legal representatives.
The notary can explain in detail and clearly to the parties involved in the transaction all the nuances of the agreement and its consequences.
In the event of legal proceedings, an employee of a justice institution can act as a witness to confirm the fact that the agreement was concluded voluntarily, without deception, not under the influence of threats or misconceptions.
One copy of the agreement and the act of acceptance and transfer of housing remains in the notary's office. This will allow you to restore the document if it is damaged or lost.

Repayment of mortgage debt;
Making payments for a residential purchase and sale transaction;
Making the final payment when buying a home in installments;
Making the last payment when paying out a share of a housing cooperative;
Approval of the act of transferring residential premises into operation (with participation in shared construction);
Obtaining a cadastral passport (for self-construction);
Transfers of funds for house reconstruction.

We recommend reading: Tariff for the Maintenance of Residential Premises in Moscow 2020 Above the Nomartiva

The procedure for allocating shares to children under a gift agreement

In order to transfer to their minor children a share in housing purchased with funds from maternity capital, parents must enter into a gift agreement . As a rule, when purchasing real estate, it is registered as the joint property of the spouses. Subsequently, parents are obliged to transfer part of such property to their children.

There are two ways to transfer part of the acquired property to each of the children:

contact a notary office for drawing up and certification of the agreement . In this case, it is necessary to provide a certificate from the BTI about the cost of housing, so that the notary can calculate the cost of his services by calculating the percentage of this amount, he will prepare all the necessary documents. After which you will need to contact Rosreestr (Federal Service for State Registration, Cadastre and Cartography) to re-register ownership of real estate);
Due to the fact that such an agreement does not need to be certified by a notary, you can draw it up yourself , assigning part of the property to the children, and then independently transfer it to Rosreestr. However, there is one problem. It is due to the fact that at the moment there is no single accepted standard for such an agreement, and each registrar has its own requirements.

Example

After the birth of their second child, Tatyana and Nikolai decided to purchase housing, investing funds received from maternity capital into this purchase. Subsequently, a three-room apartment was purchased and an agreement was drawn up to determine the shares of the husband and wife. In order to comply with the obligation to allocate shares to children in the purchased housing, they entered into a gift agreement to transfer their shares to them. However, the registration chamber explained that this way of allocating shares to children is not correct and all that is needed is an agreement on the allocation of part of the shares, in which it is necessary to indicate the share of each of the participants. Subsequently, Tanya and Kolya drew up and signed such a document, which was successfully registered with Rosreestr.

Decorating an apartment as a gift for children

Most often, maternity capital is invested in the purchase of housing. This gives rise to certain problems, some of which are related to the name.

Many believe that if the capital is “maternal”, then his money belongs to the mother, that is, part of the real estate that was purchased with it also belongs to her. This is incorrect: maternity capital is aimed at supporting the entire family, that is, it belongs to the father, mother and their descendants.

Agreement on donating shares to children for maternity capital

It is important to know: a father can also receive maternity capital if he is the adoptive parent of two children.

We suggest you read: Do I have the right to terminate the contract before its expiration date?

If a family decides to spend the certificate on improving living conditions, it needs to remember the need to allocate part of the apartment to the heirs. This must be done, since every minor by law must have his own registration and the right to living space. This became the reason for the emergence of such a thing as allocating a share in real estate to minors.

The procedure can occur in three ways:

If parents decide to change an apartment or buy a new one, they simply register their heirs as owners in it;
If the family already owns property and is paying off the mortgage, it can use the money to pay off the debt to the bank. In this case, the parents must draw up a notarized obligation to allocate shares in the real estate to the children.
Once the mortgage is fully repaid, a deed of gift can be issued, according to which specific shares in the real estate owned by the parents will be allocated to the descendants. Until the mortgage is repaid, the property is considered the property of the bank and cannot be transferred.

Here's what else you need to bring, in addition to the contract:

Parents’ passports and children’s birth certificates, as well as SNILS and marriage certificate if the parents are married;
Documents confirming the owners' rights to the apartment: for example, a purchase and sale agreement;
Extracts from the Unified State Register and house register;
Cadastral passport, technical documentation;
Certificate of maternity capital;
A certificate from the housing and communal services department stating that the family has no payment arrears;
An extract from the bank stating that the apartment was under mortgage;
Consent of the second spouse or the guardianship department for the gift.

It is impossible to give away an apartment that is currently under mortgage - a notarized promise to allocate a portion to the children after repayment is drawn up for it.

You can donate not only the entire apartment, but also its share. In this case, the deed of gift is drawn up taking into account some nuances.

The main feature of this option is that the property is acquired not by one owner (child), but by several (parents and children).

That is, after reaching adulthood, children will not be able to kick their parents out of their own home, nor will they be able to sell the property without the consent of all owners.

Tariffing of notary services is regulated by clause 1 of Law No. 4462 “Fundamentals of legislation on notaries in the Russian Federation” and the Tax Code of the Russian Federation, establishing the amount of state duty for the execution of gift agreements.

The state duty according to Article 332.24 of the Tax Code of the Russian Federation is 0.5% of the contract amount, but not less than 300 and not more than 20 thousand rubles.

According to the tariffs, the cost of registering a deed of gift with a notary is 500.00 rubles. The cost of the specialist consultation service and technical and legal work on the preparation of documents is set by the notary himself; the amount varies, so it is necessary to clarify this point in advance.

Article updated: October 14, 2020

Hello. In this article, I will analyze in detail in which situations a notary is required when donating a share of an apartment, and in which situations it is not. I also listed examples for each situation that I often come across in my work with clients. I highly recommend reading them too.

Clause 1 Art. 42 of the Federal Law of July 13, 2015 N 218-FZ - this indicates which transactions must be certified by a notary.

On July 31, 2020, changes to Art. 42 of Federal Law N 218-FZ. The changes apply only if the entire apartment is donated, i.e. when all owners donate their shares under one gift agreement, and not under separate agreements. When donating a share, everything remained as before. Read about the notary requirement when donating an entire apartment here.

When there are several owners in an apartment, where each has a certain share (1/2, 1/3, 5/7, etc.), and one of the owners of the share wants to give it to someone, a notary is required. This is called common shared ownership - clause 2 of Art. 244 Civil Code of the Russian Federation.
Here it does not matter to whom the owner is going to give his share - another owner or a stranger, a relative or not, one person or several, a minor or an adult, etc. Since the apartment is in common shared ownership and one of the owners donates his share, we must go to the notary.
If all owners donate their shares in one transaction (in fact, the entire apartment is donated), then in this case a notary is not required.
SHOW EXAMPLE ↓
Oleg and Olga own an apartment. Each has 1/2 (shared ownership). If Oleg decides to donate his share (or part of the share) to someone, a notary is required. It makes no difference to whom the share will be given - Olga (another owner) or a stranger, the entire share or only part of it (for example, 1/4), one person or several. Moreover, consent from the other owner is not required.
When donating a share of an apartment, a notary: 1) draw up a donation agreement; 2) certify the signatures on it from the parties to the transaction; 3) submit the agreement and documents to Rosreestr for registration of the transaction. For more details, follow the link - how to have a deed of donation of a share in an apartment certified by a notary in 2020 and how much it costs.
Additionally: if the owner bought a share during marriage, then when donating this share, the notarized consent of the owner’s spouse will be required - clause 3 of Art. 35 IC RF. Any real estate purchased during marriage is considered the joint property of BOTH spouses, even if this real estate is registered in the ownership of only one of them - clause 2 of Art. 34 RF IC. A notary's consent costs about 1000-2000 rubles.

A small digression - if you need free legal advice, you can write online to a lawyer at the bottom right at any time, you can order a call at the bottom left, or call yourself: 8 (499) 938-45-06 (Moscow and region); (St. Petersburg and region); (all regions of the Russian Federation).

To donate a share, you do not need to ask the consent of other owners - legal justification. Before donating, I advise you to check whether there are any encumbrances on the apartment - instructions.

If spouses from a joint apartment want to give a share to someone else, they will have to contact a notary. And twice.
If the apartment is jointly owned, then the shares of the owners are not determined - clause 2 of Art. 244 Civil Code of the Russian Federation. It is impossible to give a share in such an apartment as a gift. After all, you cannot give something that is not defined. Therefore, the spouses will first have to transfer the apartment from joint ownership to shared ownership. And only then can you donate a share.
To transfer an apartment into shared ownership, you need to draw up a marriage contract with a notary (Article 41 and Article 42 of the RF IC) or an agreement on the division of common property (Art. 38 of the RF IC). A prenuptial agreement is cheaper. Shares can be specified in any proportion. Next, the contract or agreement must be submitted for registration with Rosreestr.
After registration, you need to contact a notary again, but this time certify the agreement of gift of share. After all, the apartment is now in shared ownership, and in this case a notary is required.
Exception: A notary is not required when allocating shares to children when using financial capital.
It often happens that spouses buy an apartment with a mortgage and register it as joint ownership between them or as the property of one of them. After the birth of the second child, they pay off part of the mortgage debt with maternal capital and sign an obligation on the future allocation of shares to each family member.
To allocate a share, they do not have to go to a notary. It is enough to draw up an agreement on the DETERMINATION of shares, which indicates that the share of the spouses will be jointly owned by the spouses.
Read also: Legal entity - owner of residential premises (Myskin A.V.)
For example, each child gets 1/6, and the remaining share of 1/3 is registered by the spouses as joint property between them. This agreement will be registered in Rosreestr on the basis of clause 90.1 of Order of the Ministry of Economic Development of December 16, 2020 N 943.
The Pension Fund will not have any questions. I will write a detailed article about this soon.
SHOW EXAMPLES ↓
Example No. 1 (the situation is not about children): Spouses Alexey and Marina bought an apartment and registered it as joint ownership for both of them. Later they decided to give a 1/3 share to Alexey’s mother, Oksana. To do this, they will have to contact the notary twice.
First, they draw up a marriage contract with a notary. It indicates that Alexey’s share will be 2/3, and Marina’s share will be 1/3. Later I will write why they did this. They submitted the notary agreement for registration.
After registration, all that remains is to donate the share. The couple knew that if Marina gave the share to Oksana (her mother-in-law), then Oksana would have to pay a tax of 13% on the value of the share. Because a son’s spouse (daughter-in-law) is not considered a close relative by law, but a son is.
Therefore, Alexey goes with his mother to a notary and draws up a share donation agreement, where he gives her 1/3 of his 2/3. They then submit contracts for registration. As a result, everyone has 1/3 in the apartment.
Example No. 2 (about allocating shares to children with financial capital): Spouses Andrey and Daria bought an apartment with a mortgage. After the birth of their second child, they received financial capital, which they used to pay part of the mortgage. They formalized an obligation with the Pension Fund - after paying off the mortgage, they are obliged to allocate shares to their children.
After they paid off the mortgage, they only had to allocate shares to the children according to the obligation. Spouses do not need to go to a notary. They just need to draw up an agreement on the determination of shares in a simple form and submit it for registration. As a result, each family member will have a certain share in the apartment.

If the apartment is owned by one owner and he wants to donate a share, then a notary is not required. In this case, the gift agreement can be drawn up in a simple form. By simple form we mean that the agreement is simply printed on A4 sheet and signed by the donors and recipients. Draw up a gift agreement with lawyers - details.

Legal consequences of allocating shares to children under a gift agreement

After an agreement is concluded to give children their allotted shares in the property, they become the owners of these parts, which is the main legal consequence of this transaction, however, they will be able to fully use their rights only upon reaching the age of eighteen.

Since the gift agreement under Russian law is a civil transaction, which is difficult to cancel or change later, it can be assumed that the children born will subsequently not be able to receive a share in the housing on an equal basis with other family members. However, it is impossible to speak unequivocally about the occurrence of such a consequence; this is a theoretical conclusion.

Additionally

The greater the number of family members, the smaller the shares of each of them will be, due to the fact that, as a rule, they are distributed evenly.

Family members who have the right to receive a share of housing purchased with maternity capital:

parents - mother and father;
all children born in marriage or in its absence, upon the birth of each of the children, the shares of property are redistributed between them, with a subsequent decrease.

We sold the house, bought for capital, allocated shares to the children in the apartment and put part of the money into the account

Dear lawyers, I also completely agree with you, but the fact is that they rely on the fact that 1 is that the house had more square meters than the apartment, but at the same time the house was not suitable for living and they saw this and drew up an act that At the moment, the house is not suitable and needs restoration, so we allocated shares and put money into the account due to the fact that the apartment was smaller in square meters than the house.

Guardianship is wrong. You need to go to court with an administrative claim to appeal the actions of the guardianship authorities. Sincerely, Alexey Bankruptcy of citizens. Courts. Property valuation Consultations in personal messages are PAID e-mail: league-prava.rf

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Registration of ownership of children when allocating shares

After the parties have chosen the method of transferring shares in an apartment or house to their children, the following documents need to be prepared:

a written application to register ownership of parts of the housing from all potential owners;
the basis for registration of property rights is an agreement on the allocation of shares or a gift agreement, certified by the signatures of the participating persons in the presence of the registrar;
identification documents of the father and mother, namely copies of passports, those pages on which there is any information;
certificate of marriage between parents;
documents confirming the birth of all children (both originals and copies are needed);
receipt of payment of state duty (average amount from 1500 to 2000 rubles );
housing purchase agreement;

The above documents can be submitted to Rosreestr , as well as through multifunctional centers , which are currently quite popular and the conditions for submitting them are comfortable (no queues, polite staff, etc.).

Information

Review of submitted documents and information takes place within 10-12 days , depending on the authority to which the information was submitted. After their consideration, each family member will be issued a certificate of state registration indicating a specific share in the property.

Is it possible to donate a share in an apartment purchased with a mate?

The essence of the dispute.

The man bought an apartment, invested his own funds and a loan taken from the bank. Then he got married. Before marriage, the woman had already received swearing. capital for their common daughter (her two children from a previous marriage died). The woman directed obscenities. capital to repay the loan taken by the husband. The man sold the apartment that belonged to him and his son from his first marriage and used the money to repay the loan. Then he got divorced and paid off the loan in full. He gave 42/1000 shares in the disputed apartment to their common daughter and 373/1000 shares to his son from his first marriage. The shares were registered: 585/1000 - for the man, his son - 373/1000, daughter - 42/1000. The woman was not happy with this. She wanted to: invalidate the gift agreement and achieve a redistribution of shares, so that she herself would get a share in the apartment.

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This question often arises when dividing property. If you wish, you can, of course, concoct an agreement and give your share to another person. But will such a deal be legal? Let's see how the court answers this question.