Is it possible to donate an apartment with registered people?

What do the parties to the agreement on donation of real estate in which there are registered persons need to know?

The first thing I would like to advise people who find themselves in a similar situation: try to reach a consensus with all interested parties through negotiations.

This must be done for the simple reason that legal proceedings, which will need to be addressed if there are unresolved problems, will deprive you of the rest of your nerves and financial resources , not to mention time.

But situations are different. Let's say you couldn't come to an agreement for some reason.

Then know that the first thing you need to do is find out the specifics of ownership of the object of future donation: how many people are the owners , what share does each of them have?

Secondly, know that such a donation is legally possible, that is, the law is on your side, but you can only register all citizens registered in this real estate through the court , and until the court’s decision, all registered persons have the right to live in the property gift agreement.

You may be interested in the new rules for calculating property tax for individuals
How the cadastral value of an apartment is assessed HERE

How long does it take to check out?

Voluntary deregistration occurs quite quickly. If a citizen submitted an application to the Main Department of Migration, to a multifunctional center or through the public services portal, the result will be available in three days. The passport office processes documents from three days to two weeks. It takes two weeks for deregistration along with registration. If the donor lives in another city, the procedure may take up to three months.

The statement of claim is accepted for consideration within five days. The time frame for consideration of cases in a civil or magistrate court takes from one to two months (Article 154 of the Code of Civil Procedure of the Russian Federation). The judge in his decision announces the period during which the citizen must be discharged from the housing donated to him. In some cases, the court may grant a deferment for up to one year.

Sources

https://naslednik.guru/darenie/darstvennaja-na-dom.html
https://mylawyer.club/nedvizhimost/kvartira/darenie/prodazha-podarennoj-kv/s-propisannymi-lyudmi.html
https://pravo-sfera.ru/pravo/kak-vypisat-daritelja-iz-podarennoj-kvartiry/
https://ros-nasledstvo.ru/kak-vypisat-daritelya-iz-podarennoj-kvartiry/
https://100Yuristov.com/cat/zhilishnoe-pravo/kak-vypisat-iz-podarennoj-kvartiry-daritelya/
https://rtiger.com/ru/journal/kak-vypisat-daritelya-iz-podarennoi-kvartiry/

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Is the consent of those registered when donating an apartment necessary?

If the ownership of real estate belongs to several persons, then when donating such living space it is necessary to obtain the consent of all owners for this action.

Moreover, such a donor can give only his share in real estate.

The procedure for donating property acquired jointly during marriage also requires the consent of the donor’s spouse to this action.

It is clear that when the donor is also the sole owner of the object of donation, the procedure is simplified: no consents are required for this legal action.

In Russian legislation, there is a dual situation with this delicate issue: on the one hand, the owner has the right to do whatever he wants with his property, on the other hand, the alienation of living space is not a good enough reason for terminating the right to use living space.

Therefore, if we summarize the data on this issue, we can say that it is possible to draw up a deed of gift for an apartment (or its share) with registered citizens without their consent, but to cancel their right to use living space (which registration gives) it will be necessary to resort to one of two procedures.

In what cases is it necessary to obtain the consent of other residents? How to register it?

If there are no minors among the registered persons, then you can make a donation without obtaining the appropriate consent. You can present the tenants with the fact that you are going to carry out a transaction. They must accept this fact.

However, if you are not the owner of the entire property, but only a share of it, then you must obtain consent not only from the owner of the other shares, but also from the registered persons.

After all, it turns out that by carrying out your transaction you will cause them damage, and perhaps they are not ready to see the future donee as the new owner.

You will need to gain their support and consent.

How to register registered citizens after execution of a gift agreement?

If you are lucky and the citizens registered in the object of donation turn out to be decent people and do not refuse to be discharged, then you will just need to register the required person through the Federal Migration Service (corresponding territorially) .

To do this, it is enough to fill out an application (a sample of which must be available at the Federal Migration Service).

Only the owner of the living space has the right to register his real estate, but the registered owner receives only the right of residence, and not the right of ownership of the real estate.

In circumstances where citizens refuse to voluntarily deregister from the object of donation, the situation becomes more complicated: as previously mentioned, this problem can only be resolved in court.

The owner of real estate has the right to deregister a person registered there if there are good reasons for doing so, and if this does not contradict the law (for example, you cannot deregister a person who has not reached the age of majority without providing him with living conditions no worse than the current ones).

To do this, you will need to go through the following steps of this procedure:

Drawing up a statement of claim , which contains a requirement to terminate the right to use the specified person’s real estate and to deregister him at the stated address.
Appeal to court (geographically corresponding to the location of the property).
The statement of claim must be accompanied by documents that are the basis for the claim (for example, if the owner of the property has changed, then a purchase and sale agreement must be presented).
Judicial proceedings . If the defendant does not appear in court, the decision is automatically made in favor of the plaintiff.
Making a judicial decision . The state, in cases where the defendant is experiencing financial difficulties, may oblige the plaintiff to provide living space for the defendant (temporarily).

Reasons

The very possibility of deregistering the donor is defined in Article 292 of the Civil Code of the Russian Federation (clause 2). In this case, a transfer of ownership occurs, and only on this basis the new owner has the right to deprive the donor of registration. Of course, provided that he is not his close relative. However, relatives can also be discharged if desired. So, for example, he can be deprived of registration if such a relative:

Doesn't pay for utilities.
Uses the apartment for other purposes.
Disturbs public order.
Does not live permanently in this apartment, and so on.

Once again, it is worth clarifying the fact that if the donor is not a relative and does not have any other rights to this housing (for example, the right of lifelong residence), then he can be evicted from the apartment on the basis of the above paragraph of the law. There is no need to put forward additional reasons for this.

Regardless of the grounds and features, for eviction and discharge you will have to go to court and receive an appropriate decision. An exception is made only for persons serving in the army or serving a sentence.

Example : The donor is not a relative and for some reason wants to make the recipient happy with his apartment. He draws up a gift agreement and transfers ownership rights to another, completely stranger, individual. At the same time, the donor does not want to move out. The recipient, having received the gift, does not think of refusing it, but does not want to live with the donor. After spending some time and going to court on the basis of Article 292 of the Civil Code of the Russian Federation, the new owner gets the opportunity to evict such a person.

It should also be remembered that under certain conditions the donor has the opportunity to take back his gift. Most often, this is a sharp deterioration in the financial situation, a direct threat to the life of the donor from the recipient (or even murder, in such a situation the procedure for canceling the gift is initiated by the relatives of the deceased), and so on. Thus, before starting the procedure, it is worth checking how this will affect the donor, and whether this will give him the right to cancel his gift.

Separately, it should be noted that the donor can, of his own free will, check out of the apartment, but in this case this is not relevant, since the recipient does not have to do anything at all for this. In practice, most often the forced deregistration of a donor is carried out when this person simply does not want or cannot engage in the voluntary deregistration procedure (for example, he works in another city, has disappeared, and so on).

Who cannot be discharged from the object of the gift agreement?

The law provides for cases when a registered person cannot be deregistered and evicted from real estate:

Citizens who have not privatized their housing cannot be discharged from real estate, since they have the right to live in such living space for life.
Minor citizens left without guardianship cannot be evicted from their existing living space.
It is also impossible to write down someone who transferred ownership of housing to a third party under a rental agreement.

How can you leave your accommodation?

All conditions and rights of the recipient of the apartment are specified in the donation agreement. After its conclusion, the donated apartment becomes the property of the recipient, and now it is he who decides who to include or expel from his home, and how to use the property.

Since donation involves the gratuitous transfer of property, the donor cannot insist on special conditions for the donated apartment or house. Restriction of the recipient's rights is not allowed - the donor cannot specify how and for how long he should be registered in the apartment, who should be included or written out in the property donated by him. It is also prohibited to demand valuables for compensation, that is, the condition of a valuable gift from the recipient as payment for an apartment.

The agreement must contain a condition on gratuitous transfer, as well as a description of the specific item of donation as an apartment. Generalizations of donated property in this case are unacceptable, just as promises to donate all the citizen’s property in the future are not allowed.

Thus, a gift agreement, drawn up in accordance with all legal requirements, allows the recipient, as the owner of the apartment, to write out the donor at any time. If the donor agrees with this, then the parties begin the process of removing the encumbrance. If a citizen refuses a request to voluntarily check himself out of the apartment, he will have to turn to the courts for help.

The owner may insist on the donor being registered if:

he plans to sell his apartment and needs to register all registered persons to remove the encumbrance;
the rights of third parties are violated;
the citizen who donated the apartment does not live in it, is absent for a long time, violates public rules of conduct;
a citizen spoils and destroys real estate, does not pay required utility bills.

We suggest you read: Can I check a friend out of an apartment without his knowledge
https://www.youtube.com/watch?v=ytpolicyandsafetyru

The donation transaction has retroactive effect. Just as the donee can write the donor out of the apartment, the donor himself has the right to cancel the transaction. The reasons for such actions vary. The primary reasons will be threats and violence. The owner may choose physical violence as a tool to expel the citizen from the donated apartment.

Extract from the donor’s apartment is carried out in the same way as any other procedure for deregistering residents. If both parties agree with this decision, then the citizen can be discharged pre-trial. Forced deregistration is carried out only through the court.

The donee draws up a notice of discharge addressed to the donor. If both parties agree and have no claims against each other, then the citizen who donated the apartment draws up a special application in Form No. 6. It can be submitted to such authorities as:

Territorial division of the Main Directorate for Migration Issues of the Ministry of Internal Affairs of Russia - GUVM MIA.
Accredited government center.
Passport office is a branch of a homeowners association or management company that deals with registration and check-out of residents.

Voluntary deregistration is always fast and free. The parties will not incur any costs, since in this case there are no government duties or commission payments. The main thing to remember is that voluntary deed must be truly voluntary, because if the donor proves that they tried to evict him from the apartment by force, he will be able to revoke the deed of gift and bring the recipient to criminal liability (Article 330 of the Criminal Code of the Russian Federation).

If the citizen who donated the apartment does not agree with the conditions, the recipient has no choice but to go to court and force the citizen to be discharged.

The owner submits a written statement of claim to the court at the place of registration. The application itself must reflect all the requirements and conditions of the tenant - both about the discharge from the apartment itself, and the reasons for such a decision. The structure of the statement is as follows:

name of the judicial authority;
Full name, passport details and contacts of the plaintiff;
Full name, passport details and contacts of the defendant;
factual part;
pleading part;
list of attached documents;
date and signature of the plaintiff owner.

The content itself, that is, the factual and pleading parts, must be drawn up correctly, since on the basis of this data the court will make a decision. In order to clearly reflect the essence of the matter even at the application stage, it is better to engage a lawyer who will not only provide advice, but also help draw up the application itself with references to the legislative framework.

The package of documents, in addition to the claim itself, must include a copy and original of the owner’s passport, a gift agreement, which determines the plaintiff’s right to dispose of the housing. Also attached are certificates - a certificate of state registration of property, as well as a certificate of ownership of the apartment.

The testimony of witnesses - for example, neighbors - will also be used in the case. The eviction procedure through the court is not free, unlike a voluntary one: the plaintiff must pay a state fee of 300 rubles for an individual and 6,000 rubles for a legal entity.

We suggest you read: If there is a will, who is legally entitled to the inheritance of the deceased?

Once a claim is filed, legal proceedings begin. The judge examines all materials on the case, taking into account the legality of the actions of the owner and the competence of the donor. Based on the results of the hearing, a writ of execution is issued to deregister the citizen who donated the apartment. This is a direct basis for discharge; it must be submitted to the territorial division of the Main Directorate for Migration of the Ministry of Internal Affairs of Russia.

A popular reason for initiating removal from a municipal apartment is the tenant’s antisocial behavior. Of course, a similar question can be raised in relation to the owner of a private apartment, but here along the way you will encounter a number of difficulties with justification and proof.

https://www.youtube.com/watch?v=upload

A forced discharge in court for indecent behavior of a tenant who is not the owner of the property may be based on the following actions:

excessive consumption of alcoholic beverages;
scandals and screams, especially in the evening;
constantly listening to loud music and so on.

At the same time, the behavior should cause complaints from other residents and neighbors. Evidence may include witness statements and police calls.

However, it is almost impossible to discharge the owner through the court under the same circumstances. As practice shows, his behavior is punishable only by administrative penalties.

Ownership is increasingly becoming the first thing the court looks at.

Documents, deadlines, costs...

A sample agreement for the donation of real estate with registered persons is presented in the appendix to this article.

A sample agreement for the donation of an apartment with registered persons can be downloaded HERE

This document must contain the following details:

Passport details of the parties
Registration addresses of the parties
Detailed technical and economic characteristics of the contract object (floor, special conditions, quadrature)
A special point is the obligations associated with the discharge of registered citizens ( who should be discharged , when should be discharged).

Notarization is a possible, but not mandatory condition for concluding a gift agreement.

The completed agreement must be registered.

To do this, you need to collect a package of documents consisting of:

Gift agreements
The original and a copy of the document certifying the ownership of the donor’s home
Receipt (one thousand rubles) confirming the fact of payment of the state. duties
Extracts from the house register (can be taken to the EIRC)

The above documents must be provided in originals.

You can also submit copies certified by a notary.

In 10-15 days your contract will be registered.

Possible difficulties

There are pitfalls in any process, and deregistration is no exception. It will not be possible to remove minor members from the donated apartment unless they are provided with another home in return.

It will be possible to cancel the registration only by proving to the judicial authority that the minors have another place to live. At the same time, minors will not be able to be discharged until they turn 18 years old in any type of residential facility. This is the most difficult and practically unprofitable procedure.

In general, any extract presupposes that the citizen has another place to live. If he is not there, then the court may offer to provide him with such housing or collect evidence that there is a place where he can be registered.

We invite you to familiarize yourself with: Sample preliminary agreement for the donation of an apartment

There are also situations when the court decides that a relative will temporarily stay in the plaintiff’s living space until he finds a new home. However, in practice, such a wait can drag on for a long time, because this relative may not even try to find something.

In the case of privatized housing, if the registration process took place when the spouses were already married, and one of them refused privatization in favor of the second, this does not provide grounds for discharge. The only option for deregistration is his voluntary consent. Some women, during a divorce, exchange the statement for a refusal to file alimony for the spouse.

In any case, it is always difficult to discharge a person from a living space without his consent, but it is possible. For a successful result in such a case, you need not only a competent approach, but also a well-trained lawyer.

The features of donating a share in an apartment are discussed in the article: donating a share in an apartment. The procedure for remodeling a studio into a one-room apartment is described here.

Read about what needs to be done to re-register a cadastral passport here.

Is it possible to give by proxy?

The law also provides for donation by power of attorney.

The donor's attorney has the right to:

Interact with various authorities on behalf of the donor.
Accept the necessary documents in the name of the donor.
Solve problems that fall within the donor’s circle of interests on his behalf.
Put up paintings on behalf of the donor.

In this case, the gift agreement must be concluded in the presence of a notary.

A notary may be involved in court proceedings as a witness.

Some nuances

The procedure for donating a house to a close relative in the Russian Federation has its own characteristics that citizens should be aware of.

A plot of land can also be transferred by a power of attorney certified by a notary.

It must indicate the passport details of the person to whom the gift is made, and indicate the specific site.

Please note: donating a house separately without a land plot is impossible!

You can draw up a deed of gift for a house with land in different ways:

donate the entire property;
allocate some part of the house and a share of the land;
donate a share of the house, indicating specifically the premises that will go to the recipient;
You can register a deed of gift as shared ownership by specifying several people in the agreement.

You can use other gift options that are available in the relevant legal documents.

Is it possible to donate an apartment with minor children registered in it?

The legislation does not provide for special acts regulating the legal relations of the parties in this case.

If the registered minor is also the owner of real estate, then in order to conclude a gift agreement it will be necessary to obtain the approval of the trustee authority .

To do this, it is necessary to prove that the minor will not tolerate the inconvenience associated with donating real estate.

In cases where the gift agreement has already been concluded, and the minor is still registered in the living space, there is nothing left but to write him out through legal proceedings .

In court, you will need to prove that the child already has a guardian and another place to live.

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Do you want to deprivatize your apartment?

Eviction of the donor from the donated apartment

If the donor is registered in the apartment he is donating, eviction is possible only by court decision. But if the donor is not a relative of the donee, then it’s easy to evict him, because he does not have the right to live in an apartment.

The relatives of the donor (Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14) include:

Persons living together in the apartment (spouse, children, parents).
Disabled persons who live with the donor.
Other relatives (grandparents, brothers, sisters, etc.).
Other persons who live with the donor (unregistered marriage, etc.), if they moved into the apartment as family members.

In any case, with a problem you need to contact qualified specialists who will weigh all the nuances, all the pros and cons and find the right way out of the current situation. Call 8-800-500-61-85 and find out how to sign the donor out of the donated apartment.

If the whereabouts of the registered person is unknown...

We have already examined in detail the question of whether it is possible to give real estate to registered citizens.

Ignorance of the registered person about the fact of alienation of property rights is not a basis for a ban on performing this action, unless he is also the owner of the property.

But here you need to know that the gift agreement must stipulate that the person registered retains the right to use the housing .

And this will reduce the value of real estate.

Is it possible to transfer an apartment received through a deed of gift and how to do this?

to pay the state fee for registration in Rosreestr;
to pay 13% tax.

With the collected package of documents and receipts, they visit the Rosreestr department closest to the location of the object of donation to register the transfer of ownership. When filling out receipts for paying state fees, be sure to include the full names of the donor and the recipient. If official intermediaries are involved in the process, then the full names of their clients are indicated on the receipt. Pre-collect a package of documents from:

certificates of the right to dispose of the donated object;
technical passport for the object of donation;
personal documents of the parties that will be indicated in the deed of gift as the donor and the donee, people registered in the apartment;
power of attorney of a person representing the interests of one of the parties to the transaction; and a completed sample power of attorney for donating an apartment.