About housing law

Is it possible to?

If the home has a mortgage, is it possible to issue a deed of gift for it?

Article 37 of the Federal Law “On Mortgage” (No. 102-FZ dated July 16, 1998) states that living space taken out under a mortgage may be transferred as a gift based on the decision of the person who provided this property as collateral.

As the Federal Law “On Mortgage” states, mortgaged housing is secured by the bank.

It follows that it is this financial and credit organization that actually owns the residential premises until the borrower pays the entire amount and is able to obtain a certificate of state registration of the right only for itself.

Clause 1 of Article 37 of the Federal Law “On Mortgages” contains information about what the mortgagee can do with the property pledged to the bank. For example, an apartment may be subject to donation, but the mortgagor must agree to this.

Property relations connecting the borrower and the lender regarding housing taken on credit are subject to regulation by the following regulations:

The Civil Code of the Russian Federation, containing general information about the ownership of residential premises, the loan agreement, and the pledge.
Law No. 102-FZ “On Mortgage”. Regulates the process of transferring real estate to the bank as collateral.
Provisions for registration of rights and restrictions are contained in Law No. 122-FZ “On State Registration of Rights to Real Estate”.
Loan agreement. This document outlines the obligations and rights of the mortgagee and the bank.

Nuances when donating a mortgaged apartment

If the apartment has a mortgage, the answer to the question of whether it is possible to issue a deed of gift is ambiguous. Here a lot depends on the position of the bank. Even if it was possible to obtain his consent, one should take into account the main feature of the collateralized property - the existence of rights to it by the lender. Therefore, the recipient must understand that he accepts as a gift not only property, but also obligations regarding it.

In accordance with the laws of the Russian Federation, an apartment is the property of the person who bought it, regardless of whose funds the purchase was made with, personal or borrowed. But if we are talking about mortgaged real estate, it is in bank collateral for the entire period of debt repayment. Therefore, all legal transactions with it are possible only with the consent of the bank (except for the transfer of living space by inheritance).

By accepting an encumbered apartment as a gift, the recipient automatically agrees to all the features of owning real estate with a mortgage.

We suggest you read: Is it possible to give an apartment with a mortgage to your daughter or is it possible to draw up a deed of gift for a mortgaged apartment • Your Family

The main feature of receiving an apartment as a gift with an encumbrance is the existence of the right to collect the collateral by the lender in the event of the borrower’s failure to fulfill its obligations. The bank can forcibly evict the owner from the property and sell the apartment through an auction.

If at the time of registration of a gift or registration of a gift the borrower has an overdue debt or unpaid penalties, the donor is obliged to notify the recipient about this.

In addition, the new owner of the property will not be able to fully dispose of the apartment until the debt is fully repaid.

Banks' reaction

How might the bank react? The possibility of transferring real estate as a gift before the end of the credit relationship is indicated in the agreement. In this case, the organization carrying out banking activities has the right to prohibit the gift transaction.

At the same time, the bank can, on the contrary, give consent, or indicate in the agreement that it is not necessary to wait for a positive response when transferring encumbered real estate as a gift.

So, when drawing up an agreement between the bank and the borrower, if the apartment is planned to be donated to another person in the future, it is best to discuss this possibility in advance and include this clause in the loan agreement.

Before drawing up an alienation agreement for a mortgaged home, you need to obtain approval from the bank. If you cannot give good reasons, then the deal is unlikely to go through.

It is necessary to argue to the lender that the relationship between the donor and the donee is necessary in this case. It is also possible that the person donating the residential premises is in poor health or does not have sufficient financial resources.

All this is explained by the fact that, along with the ownership of real estate, the bank loan is also transferred to the donee. Therefore, a person who can receive housing as a gift must meet the following conditions:

be a citizen of the Russian Federation and have permanent registration where the bank is located;
have worked at your last place of work for at least 6 months (must have at least a year of total experience);
be provided with enough money to successfully repay the loan.

You can give an apartment as a gift, even if there are debts on it. The donee will be obliged to repay all debts owed to the bank or HOA (this also includes penalties).

If the successor is not notified of the debts, the transaction will be invalid.

The bank will not agree to the execution of the gift agreement and its registration if this procedure increases the risks of the financial organization. For example, it will most likely not be possible to donate living space to an elderly person or a minor citizen.

This can be explained by the fact that it will be difficult for the bank to force the sale of the mortgaged housing if the borrower stops fulfilling its obligations.

Only with the consent of the bank

According to the Mortgage Law, the owner can donate real estate that is pledged to the bank, but only with the official permission of the lender. This rule is advisory in nature and is implemented at the discretion of the parties. Thus, if a borrower plans to give an apartment to someone, then, first of all, it is necessary to contact the bank with a corresponding written application.

Banks agree to such an operation very reluctantly. Since a change of owner carries additional risks for the lender. The prohibition of donation may be included as a separate clause in the mortgage agreement. If this is not the case, the bank will resolve the issue on an individual basis.

In order for the bank to make concessions and allow the deed of gift to be issued, it is necessary to prove the feasibility of the operation. This could be, for example, a sharp deterioration in the health of the donor, or his advanced age.

We suggest you read: How to collect a debt if there is no receipt but there are witnesses

The bank will not give permission for a deed of gift if the transfer of ownership increases the bank's risks. That is, it is unlikely that it will be possible to give real estate to an elderly person. Also, the bank will not allow you to issue a deed of gift in favor of a minor. This is due to the fact that in case of default by the borrower, it will be extremely difficult for the bank to carry out a forced sale of the collateral.

To obtain permission, a potential donor must submit the following documents to the bank along with the application:

Identification documents of the recipient.
Documents that confirm ownership of real estate.
Draft donation agreement.

Consequences of violating the ban

Is it possible to register a deed of gift if the home is under a mortgage, without the bank’s permission? What happens if the terms of the non-donation agreement are violated? It will not be possible to draw up a deed of gift without the consent of the bank.

To consider the transfer of property to have taken place, you must first register the transfer of ownership. And for state registration, certain documents issued by the bank are required.

The borrower may try to violate the terms specified in the agreement. In this case, the bank can do the following:

File a claim with a judicial authority. This is necessary so that the transfer of the home as a gift is considered invalid.
Insist on the early closure of the debt and payment of fines that were imposed due to violations of the terms of the contract.
Sell the mortgaged home if the debt is not repaid.

You can learn how to terminate an apartment donation agreement from our article.

Instructions for registration

How to draw up a deed of gift for living space that is on a mortgage?

To give a home to another person if it has a mortgage, you need to go through the following steps:

First, you need to obtain consent from the bank (in writing) for the free transfer of property.
After this, the donor collects the necessary documentation and draws up a deed of gift.
Documents are accepted at the MFC or Rosreestr. The period for state registration of donation of an apartment on credit can last up to 1 month.
The donee becomes the owner of the certificate of ownership of the residential premises encumbered with a mortgage.

You can find out how to register a deed of gift for living space with a notary and how much it will cost on our website.

The procedure for drawing up a donation agreement for a mortgaged apartment

If the bank's permission is received, then you can formalize the donation of a mortgaged apartment. The following documents are required for the contract:

Civil passport of the property owner.
Civil passport of the recipient.
Title document for real estate.
Technical or cadastral passport for the apartment.
Extract from the register of property rights.
Consent of the second spouse, certified by a notary, if the apartment was purchased during marriage.
Extract from the house register.
Permission from the guardianship council if the transaction affects the rights of minors.
Bank permission.

If the owners of the apartments are several people, all of them must sign the agreement. Notarization of the contract is not mandatory. The donation can be made in simple written form. But if the transaction is non-standard, then resorting to the services of a notary will not be a bad idea. This will help to draw up a contract in more detail and correctly, in order to avoid the emergence of mutual claims between the parties against each other. After which the donation must be registered with Rosreestr within a year. If this has not been done, the contract is considered invalid.

It is also worth remembering that in a situation where the original owner and the recipient are not close relatives, you will need to pay a tax of 13% of the value of the property. In addition, for registration the parties are required to pay 1000 rubles in the form of a state fee. Therefore, such operations are not always financially profitable.

The donation agreement for real estate that is under mortgage must contain the following information:

Details of the parties: donor, recipient and mortgagee.
A link to the documents on the basis of which the donor owns the real estate.
Technical characteristics of the object.
It must be indicated that the apartment is being transferred free of charge.
List of rights and obligations of all parties.
The procedure for transferring ownership, where it must be indicated that the recipient knows that the apartment is under mortgage, and he assumes both the rights and obligations of the mortgagee.
Signatures of the parties.

If you need a sample or assistance in drawing up a legally competent agreement for the donation of a mortgaged apartment, then write about it to our duty lawyer online.

As a result of registration of a gift, the recipient receives a certificate of ownership of real estate encumbered by a mortgage.

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After the transfer of ownership, it is necessary to make changes to the real estate insurance contract, where it is necessary to indicate the new owner.

When obtaining consent from the bank to change the borrower, the latter must be prepared for a thorough check of his financial condition.

Procedure for issuing a deed of gift:

submitting an application to the bank;
obtaining consent from a financial institution and checking the solvency of a potential borrower;
execution of a gift agreement (drawn up in simple written form, which means there is no need to contact a specialist, however, notarization of the transaction will reduce the risk of challenging the document);
registration of the transaction and transfer of ownership in Rosreestr;
transfer of real estate to the donee.

List of required documents

When the bank has given its consent, the time comes to draw up a deed of gift for the apartment taken under the mortgage lending program. For state registration of an agreement, the following package of documents is required:

Passports of citizens of the Russian Federation belonging to the donor and recipient.
Application for registration.
A document confirming the right to real estate.
A technical passport for the living space that is given by one person to another.
The approval of the second spouse, which must be certified by a notary. This is necessary if the home was purchased during marriage.
An extract from the apartment register about the persons registered in this living space.
Approval from the Board of Trustees. Requested when the gift transaction concerns the rights of incapacitated or minor persons.
Bank consent.

You can learn how to issue a deed of gift for living space from our article.

Requirements for the contract

The deed of gift for an apartment taken on a mortgage requires the following information:

Details of the person who decided to donate the housing, the recipient, as well as the mortgagee.
Information about the legal document.
Characteristics and technical description of the property.
Be sure to write that the housing is given free of charge and irrevocably.
An indication of the rights and obligations that are attributed to the parties.
Information about the transfer of ownership. It must certainly be said that the person receiving the living space as a gift is informed that the property is pledged to the bank.
Signatures of all participants in the process.

After registering the transaction, the donee receives a certificate of receipt of the right to housing with an encumbrance.

Find out from our article how much it will cost to formalize a transaction of donating living space between close relatives.

How to issue a deed of gift for an apartment with a mortgage in 2020

So, if you decide to give a mortgaged apartment to a close relative or stranger (for example, a partner), you will need to go through all the steps listed below:

First, you must obtain consent to conduct the transaction from the creditor bank.
Then, collect the package of documents necessary to formalize the gift agreement.
After this, it’s time to start drawing up the contents of the deed of gift. You can do this yourself, but we recommend that you definitely contact a notary for support of the transaction. This will guarantee compliance with the conditions of the gifting parties in the future.
At the final stage, the parties hand over the documentation to employees of Rosreestr or MFC.

As a rule, the period for state registration of the new owner’s property rights does not exceed 30 calendar days from the date the parties submit the papers.

In order to adjust your actions in accordance with your situation, we recommend that you get a free consultation with a lawyer by ordering a call or describing everything to us in one of the feedback forms presented in the article!

EVERYONE NEEDS TO KNOW THIS:

Donation agreement for son or daughter: apartment, house, car and land

Now, I would like to dwell in more detail on point 2 above the published list.

What documents are needed

As soon as the borrower receives the consent of representatives of the creditor bank to draw up a deed of gift for the apartment with a mortgage, he must begin preparing a package of documents necessary for the transaction, which include:

Application for registration;
passports of citizens belonging to the parties to the transaction;
a document of title that confirms the donor’s ownership of the donated property;
technical passport for living space;
a written agreement to carry out this transaction from the second spouse, if the apartment was purchased during marriage and is part of jointly acquired property;
an extract about all persons registered in the donated living space;
approval from the guardianship and trusteeship authorities, if the deed of gift is issued to a minor or incapacitated person.

How to correctly draw up a deed of gift for an apartment with a mortgage

In order for the deed of gift for a mortgaged living space drawn up by the donor to have legal force and be impossible to challenge in the future, its content must contain the following information:

all details of both parties involved in the donation transaction;
data from the document confirming the ownership of the current owner;
technical characteristics of the transferred object and information about it (physical address, floor, etc.);
the desire of the donor to transfer property and the will to accept it from the donee;
information about the actual transfer of ownership and confirmation that the donee has been informed that the apartment is currently pledged to a banking organization;
actual market price of the property;
date and signatures of the parties to the agreement.

After concluding the transaction and registering ownership, the recipient receives documents certifying that this apartment will become his property after the mortgage is paid off.

How much does a deed of gift for an apartment with a mortgage cost in 2020?

What amount will need to be prepared and how much to pay when donating a mortgaged apartment. As with the donation of any other real or movable property (for example, when registering a deed of gift for a car), there are 2 answers:

if the parties involved in the transaction are close relatives, the execution of the transaction is not subject to taxation;
if the transaction is concluded by non-relatives, the recipient party, who receives an apartment without spending their own funds, will have to pay a state personal income tax amounting to 13% of the total market value of the apartment or its price set by the creditor bank.

However, these are not all the costs that need to be considered. So, for the state registration of the property rights of the new owner, the recipient will have to pay, in any case, 1,000 Russian rubles. You can find out even more information from this video or by writing to our lawyers:

As you can see, when registering a gift, it is very important whether the apartment has a mortgage, and whether it is possible to formalize a gift of an apartment will be decided by the bank that issued the money for its purchase. Whether you receive a positive or negative answer depends on how exactly you describe the current situation, and therefore -
We recommend a free consultation, what exactly to tell the bank representatives and our lawyers!
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