Donation of an unallocated share in common joint property. Legal advice.

Separation of shares from common joint property and donation of this share

Giving an apartment to my granddaughter My grandmother wants to give me an apartment, she wants to definitely finalize the deal before my wedding so that no one, including my future husband, can lay claim to it…. Other Q&A topics:

Debts
Credit
Loan guarantee
Mortgage
Collectors
Insurance
Purchase and sale of real estate
Buying and selling cars
Divorce
"Civil marriage
Establishing paternity
Alimony
Inheritance, wills
Exchange of living space
Housing issue
Privatization
Agreements and powers of attorney
Donation
Administrative offenses

It is noteworthy that if several participants agree to purchase a share at once, the right to choose a buyer remains with the seller. If none of the participants in shared ownership wanted to buy out the share, it can be legally sold to any third-party buyer.

Question 2: Can any of the owners sell their part/share in this apartment? What procedure needs to be followed and what documents need to be prepared in this case?

As a rule, this problem is faced by citizens who, while living in a civil marriage, bought property together and did not register it as common property. Dividing such property in the event of a dispute is problematic.

When the residential premises are in the common joint property of the spouses, before allocating shares to the children, it is first necessary to determine (allocate) the share of each of the parents. To do this, property should be divided according to the rules of family law.

Registration Questions

When independently registering with Rosreestr directly or through a multifunctional center, you must attach:

copies of the gift agreement (one for each participant in the transaction)
;
receipt of payment of state duty (it is advisable to have it, even taking into account the fact that all data is entered into a single database)
;
consent of the second spouse - if a share that is jointly owned is given (notarization is required)
.

In addition, you will need the passports of all participants or birth certificates if the deed of gift is issued for children under fourteen years of age.

Of course, you can act through representatives for whom you have previously issued a power of attorney. But these can only be third parties - it is unacceptable when the donor and the representative of the recipient are the same person.

If the deed of gift is drawn up on several sheets, before submitting it to the registration authorities, the sheets must be carefully and securely fastened so that the copies do not fall apart, otherwise they simply will not be accepted.

Once the documents are accepted by the registrar, he must issue a receipt clearly indicating the deadline for filing documents and the date of issue of new title documents. The legally defined period is ten working days from the date of submission of documents.

But if you submit documents through a multifunctional center, you may be warned about a slight delay due to the need to transfer them to Rosreestr.

A very convenient option is preliminary submission of documents in electronic version through the registration portal. On the official website of Rosreestr, you need to find and fill out a special form, attaching the necessary documents. Once submitted, all further instructions will be sent by email. Original documents must be brought when you come to receive a completed certificate confirming the change of ownership.

State registration of a deed of gift for a share is mandatory, and the procedure will be the same regardless of the degree of relationship between the parties to the transaction, as well as other factors.

Until registration takes place, the contract is considered a promise of gift. If, after concluding the agreement, the donor understands that if the transaction is completed, his position will significantly worsen, he has a chance to refuse registration. It will be extremely difficult to return the donated share to the donor in the future; this requires extremely compelling reasons.

Cancellation of a deed of gift can be achieved in court, however, this is only possible in special cases.

For example, if it can be proven that the new owner of the alienated share harmed the health and life of the donor or people close to him
(or tried to do so)
.

How to donate a part in joint ownership without allocating shares?

In all of the above cases, ownership can be transferred both to the entire residential premises and to a separate share in the ownership of the residential premises. Gift deed for a share in an apartment or house When donating a share in an apartment, there are some features.

A donation agreement is one of the ways to fulfill an obligation and give children a part of the living space.

To allocate part of the housing, you must follow the following algorithm:

try to resolve the issue out of court;
collect the necessary documents;
draw up a statement of claim;
send the claim and all certificates to the court of general jurisdiction serving the area where the apartment is located;
wait for a summons from the court;
participate in all court hearings;
obtain a decision from a judicial authority (if it is not in your favor, then you must appeal to a higher authority);
apply with a resolution to the MFC or the regional office of Rosreestr with the necessary package of documents;
receive an extract from the register of ownership within 14 days.

Shared ownership - when a thing is owned by 2 or more people, and it is determined in what shares they own.

True, for this it is necessary to obtain a written waiver of the right to purchase from all participants in shared ownership. If such a refusal is not received, then a receipt confirming receipt of the notice of sale will serve as evidence of proper execution of the procedure for the sale of shares.

To make changes in the unified state register, you will have to pay 2,000 rubles for each part of the apartment. The Martynovs lived in a private house, which was their common property, as it was acquired during their life together. After the divorce, the Martynovs did not share property and continued to live in the house together. The ex-husband took out a loan, but could not pay it off. By court decision, debt collection was applied to Martynov’s property.

Elena, good day. To sell a property that has several owners, you need to obtain written notarial consent of all its members for this transaction. In your case, you also need your son to issue a power of attorney for one of you to carry out this procedure, so that he does not have to be present in person to confirm consent and travel abroad.

Do you need a notary: in what cases is certification necessary?

Previously, all transactions related to donations were formalized only by a notary, but since 1995, the majority of those who transfer a share to a relative have a choice. In addition, the owner, when completing a transaction, can act either through a legal representative or independently. The main thing is the good will of both parties, correct execution and timely registration of the transfer of ownership.

The great advantage of notarization is the guaranteed correctness of the agreement, verification of all documents and professional confirmation that the donation is legal.

In addition, you can agree with a notary to register the agreement, ultimately receiving ready-made documents, which will significantly save time.

You should contact a notary if there is reason to believe that third parties will try to challenge the transaction, and also when it is important to draw up the agreement correctly, taking into account all the legal nuances. It is necessary to understand that even a hint of any material reward for the donor can lead to the transaction being considered void.

The following documents must be submitted to the notary office:

certificate confirming the ownership of the share;
an extract from the register of rights to real estate (it must be requested from the cadastral chamber)
;
a certificate or extract about everyone registered in the apartment.

In addition to the notary's remuneration (if he was involved in drawing up the agreement)

, you will also have to pay a state fee for certifying the document; the amount of the fee is determined depending on the value of the share and the degree of relationship. To save money, you can draw up a deed of gift yourself, and then only have the document certified by a notary office.

You cannot do without a notary if:

one of the parties is a minor or an incapacitated adult;
housing is in common shared ownership;
a share is joint property, that is, one person can dispose of it only with the consent of the other.

Doing it yourself and then registering the deed of gift will cost much less. However, it is necessary to draw up the agreement correctly and write down all the information about the parties, all the details about the transferred share, terms and other information prescribed by law.

When certain conditions are assumed (of an intangible nature)

, they need to be registered too. Experts also recommend including in the document a clause stating that if the donor outlives the recipient to whom he transferred his part of the real estate, the donated share is returned to the previous owner.

Nowadays you can find many samples and templates in the public domain that you can use as a basis, but you should know that standard options may not be suitable for specific situations, and it would be very useful to involve a lawyer. It is important that the document be signed by both parties; unidirectional alienation is illegitimate.

How to donate part of joint property

Both of them are options for voluntary division of property between spouses. The procedure for their conclusion is also similar.

I want to give my share in a privatized apartment to my son, he is a disabled person of the 2nd group. Can I indicate in the gift agreement that the costs of its preparation (drafting, notarization, PTR) are paid by the donee? In this case, as I understand it, it will be possible to pay a fee for notarization of the contract of 50% of the tariff, i.e. 0.25% of the value of the donated share of the apartment, not 0.5%.

A deed of gift can only be drawn up voluntarily, that is, the transaction must have the consent of not only the donor, but also the donee. If a close relative does not want to accept a share in the apartment as a gift, then he can refuse the transaction and not explain the reasons for his refusal.

One of these documents is needed to make sure that the apartment or share really belongs to the donor. In addition, the data from these documents is also indicated in the gift agreement itself.

Features of registration of deed of gift

The owner, in the course of exercising his rights to a share, may encounter opposition from co-owners. In this case, the share in kind is allocated in court.

Transfer of ownership of a share in the ownership of residential premises by inheritance (inheritance by law or by will);3. Privatization of housing, i.e. gratuitous transfer to a citizen of residential premises owned by the state;4.

Joint ownership involves ownership of property without allocation of shares. The allocation of shares from common joint property occurs in the same order as from common shared property, if the object is divided in kind. The only difference is that in the case of joint ownership, it is necessary to first determine the size of the shares of the co-owners.

In relation to residential premises, the law does not prohibit or restrict the right of common shared ownership. Thus, the right of common shared ownership is possible for any residential premises in the Russian Federation, to which Article 16 of the Housing Code of the Russian Federation includes:

residential building, part of a residential building;
apartment, part of an apartment;
room.

If the second spouse has made significant improvements to the donated or inherited home, such property will already be considered joint. However, if the second spouse has made significant improvements to the donated or inherited home, such property will already be considered joint.

The best option would be to draw up an agreement between the owners so that the so-called division does not have to be formalized through the court.

Klimov V.N. in 2008 he married A.P. Usova, and in 2009 the spouses jointly purchased an apartment. After the death of Klimov V.N. his son from his first marriage, Klimov S.V. turned to the widow so that she would allocate the deceased’s share in the apartment and he could lay claim to this part of the inheritance. Usova refused.

I'm getting a divorce. I suggested that my husband give me his share in the apartment, while I refuse alimony, but he wants to give the share to the children (there are two of them). Wants to reserve the right to register for 5 years. What should I do?

How is gifted property divided when spouses divorce?

Attention

Property may be in common ownership with the determination of the share of each owner in the right of ownership (common ownership) or without determining such shares (joint ownership).
Thus, common shared ownership is the ownership of two or more persons in one property, divided between them into certain parts (shares). However, this property, even divided into shares, belongs to all its owners. That is, each of the owners of such property can own and use it with the same rights as its other owners. According to Article 288 of the Civil Code of the Russian Federation, the owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose. Residential premises are intended for the residence of citizens.

How to draw up a deed of gift for a share in an apartment?

Valentin, good evening. The gift transaction is a voluntary, bilateral transaction, tax-free in the case of a close relationship between the donor and the recipient. The law does not indicate any pitfalls associated with a residence permit or other form of registration in the country, which means the transaction is carried out on a general basis.

Before using the information and making any decisions, be sure to consult with specialists.

There is no clear answer to this question. If you follow the provisions of Law No. 256-FZ, then the answer is yes, and the second parent (the child’s father) should be allocated the appropriate share based on the area of housing and the amount of maternal capital.

The donor is not obliged to bear the costs of registering the transaction and pay taxes; all costs are required by law to be paid entirely by the one who receives the gift.

Gift from joint property

When wondering how to allocate a share of real estate in kind, it is worth noting that the allocated share involves obtaining a separate room. In addition, the Civil Code of the Russian Federation establishes the possibility of allocating a share in kind only if this does not cause any damage to the real estate, its intended purpose does not change and this does not affect the value of the apartment.

If you don’t know what to add to the contract and don’t understand it at all, then just write down the situation: who wants to donate an apartment, to whom the apartment is being given, why and why. Lawyers will figure out your situation themselves; 5) Now you can pay for the service; 6) After payment, the lawyer will draw up an agreement and send a link to download it.

An apartment that is jointly owned cannot be divided. In order to divide it, you need to allocate a share in the apartment, that is, determine which spouse owns which part of the apartment (Articles 38, 39 of the RF IC). Even if the agreement is suitable in a simple form, you do not need to draw it up yourself. We strongly advise against looking for ready-made templates on the Internet. Almost all the templates there are outdated or generic. Understand that almost every gift transaction is individual, and standard templates do not have the items that need to be specified in each specific case.

You can draw up a document yourself in simple written form, then contact the Registration Chamber and carry out all the necessary registration activities. However, you can simplify your task and transfer this responsibility to a notary, who will certify the transaction and register it himself.

The essence of the gift agreement is that one party (the donor) transfers or undertakes to transfer to the opposite party (the donee) a certain thing (gift), and such transfer is carried out absolutely free of charge.

True, often, wanting to preserve the property of each of them in its original form, the spouses sign a special agreement. There is another possibility of joint ownership of living space, although not provided for by the Civil Code, but based on the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation ” and in practice it is not so rare.

Shared ownership and allocation of a share in an apartment are two different things. With shared ownership, the property remains common. But when a share is allocated from common property (a share is allocated), then this allocated share no longer becomes common property. This share is independent property, it is outside the common one.

If the apartment is jointly acquired property and is registered in the name of only one of the spouses, then the notarized consent of the donor’s spouse is required. After the share in kind is allocated by agreement or through the court, no one will be able to claim it. At the same time, he also does not have the right to lay claim to former public spaces.