Donating an apartment or a gift from the heart: registration procedure

However, the actual heir will not be able to register ownership rights to real estate - to carry out state registration, you need a certificate of the right to inheritance, which is issued exclusively by a notary.

Procedure of inheritance, registration First of all, the successor needs to obtain a documentary basis for opening an inheritance - a death certificate of the owner of the apartment. It is issued by the territorial civil registry office at the place of death of the testator.

The document can be drawn up on the basis of a medical report on the death of a citizen or a corresponding court decision.

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• The size of the share available to the applicant;
• Part of the living space that an interested citizen will donate to another person.

• The number of people with registration in this living space;
• Information about individuals registered in the apartment.

Since it is difficult to determine what exactly will be included in the share of living space, the best option would be to indicate a specific room when drawing up a gift agreement. In this situation, all premises used by all citizens will be available to the owner of the share.

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When an interested individual has bought a living space, he will be able to immediately donate this property .

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property received as a gift and privatization is not subject to division upon divorce, but is the property of the spouse to whom it was gifted or privatized.

the son is not obliged to “leave” - the wife must pay him the value of his share (at the market price)

There are two owners, a brother (according to privatization 50% - 2009) and a sister (according to a gift agreement from their father (and a 50% certificate issued in 2010). The father died in 2013. The sister offers to buy out 1/3 of the share (they lived in the apartment father, mother and brother. Privatization was already without the mother) that is, 1/3 brother and 1/3 each from mother and father goes to brother and sister. Only the brother is registered in the apartment. The prehistory is that in the 80s they were given according to the social norm and the sister and her son were given a separate apartment, and the brother with his father and mother received this apartment.

Donation agreement for a plot of land without buildings

In order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse.

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1. Except for the cases provided for by paragraph 2 of this article or other law, a transaction that violates the requirements of a law or other legal act is voidable, unless it follows from the law that other consequences of the violation not related to the invalidity of the transaction should be applied.

Is it possible to make a deed of gift if the property is not privatized?

If the age of the donee is less than 14 years, then his legal representatives can submit documents without the personal presence of the donee;

• Parents (guardians).

It is worth paying attention to the fact that only those interested citizens who can confirm their family relationships are exempt from the tax deduction for donated real estate. In another case, representatives will need to pay 13 percent of the total cost of the apartment.

Donation agreement and privatization

The requirements for such contracts are the same.

So, if you need to donate a share in an apartment or an entire apartment, you must take the following steps :

1. Determine who will be the recipient.
2. Find out from him whether he agrees to accept the property as a gift.
3. Prepare the necessary documents.
4. To make an agreement.
5. Complete registration of property rights.

The vast majority of gift agreements are concluded between close relatives. hardly anyone would want to give their hard-earned property into the wrong hands for free

Tax for donation of land without privatization

217 of the Tax Code of the Russian Federation, transactions made between close relatives, the list of which is given in Art. 34 of the Family Code of the Russian Federation. Relatives can be blood, legal (spouses), and adopted (in the case of official adoption). A transaction with such an economic justification must be formalized in the proper form, that is, it is necessary to draw up, execute and sign a gift agreement (deed of gift) (see.

Our lawyer can fully prepare a deed of gift for a land plot and a house, including collecting the necessary documents and drawing up a gift agreement with a guarantee of state registration of the transfer of rights under this agreement. When registering a deed of gift for a house or land to a close relative, the Donor is exempt from personal income tax. Close relatives include children, parents, brothers, sisters, grandparents.

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Privatization and gift agreement

Attention

The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor. 2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss.

3. At the request of an interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within six months preceding the declaration of such a person as insolvent (bankrupt). 4.

Rules for drawing up a deed of gift

Donation is an expression of the owner’s will to transfer his property, in this case an apartment, to another person free of charge. Although no active action is required from the other party, he must agree to accept the gift and become the new owner of the property.

Therefore, it is mandatory to draw up an agreement with the signatures of both parties.

Download the Deed of Gift for a share in an apartment (38.0 KiB, 381 hits)

Donation agreement. Sample (18.5 KiB, 787 hits)

The contract must stipulate:

• Place and date of document preparation.
• Full information about the parties: full name, passport details, registration address. If the parties act through proxies, their details are also recorded.
• Description of the object of donation. There are no uniform requirements for the detail of the description; it is only necessary to indicate the exact address and area of ​​​​the apartment. In addition, you can specify the floor and number of rooms, and clarify the size of the total and living space. The cost is often indicated, especially if the recipient has to pay tax.
• Documents confirming the legality of the donor's rights to the apartment (sale and purchase agreement, deed of gift, will, privatization documents, etc.).
• When the transfer of ownership takes place: will the application for a change of owner be submitted to the registration authorities immediately after signing the contract or after some time. For example, there is a deferred gift for some event: coming of age, wedding, graduation, etc. In the case of a deferred gift, the owner can revoke the deed of gift until registration and retain ownership of the property. However, he must be prepared that the other party can challenge this decision in court and achieve fulfillment of the promise to transfer property. It is impossible to specify the death of the donor as an event for the transfer of ownership. In this case, the agreement is considered void.
• consent of the other party to accept the gift.
• signatures of the parties.

Without these components, the contract will be invalid, and registration of the transfer of ownership will be denied.

In addition, contracts traditionally contain clauses designed to protect the parties from mutual misunderstandings and attempts to challenge the document in the future by the parties themselves or third parties.

• Confirmation of the legal capacity of the parties to the transaction, the voluntary expression of will and their awareness of the essence of the agreement.
• Confirmation of the absence of third party claims to the object of donation (arrest, pledge, other donation, presence of other owners, etc.).
• Which party pays the costs associated with the transaction? By law, the burden of paying the state fee falls on the party receiving the gift. But in addition to this, other expenses may arise, for example, notary fees. These expenses can also be borne by the recipient, or the parties decide to divide the expenses among themselves.
• Number of copies of the agreement and their equivalence. Traditionally, three copies are drawn up - one for each party and a third for the registration authorities. If there are more parties (for example, a mother gives an apartment to two children), then the number of copies increases proportionally.
• The procedure for resolving disputes. It is usually stated here that the basis for resolving disputed issues is an agreement, and in the absence of indications in it about disputed areas, the current legislation.
• Possibility of terminating the transaction. In this case, the failure of the recipient to fulfill any conditions cannot be cited as grounds, since this contradicts the essence of the deed of gift. Usually, the circumstances provided for by law are prescribed: unlawful actions of the donor in relation to the donor or members of his family, a significant deterioration in the donor’s standard of living, or the death of the recipient during the life of the donor.
• If not the entire living space, but a share in it, is donated, the parties can prescribe the procedure for owning common areas, paying for utilities, repairs, etc.

According to current legislation, notarized registration of a gift agreement is not required. Contacting a specialist will increase financial costs, but will eliminate errors when collecting documents and drawing up an agreement and minimize the risk of the transaction being declared invalid.

Another advantage of notarization of a deed of gift is documentary evidence of the transaction: if the contract is lost in the future, the parties can easily obtain an official copy of it. Therefore, the parties make a decision on the advisability of notary services based on their own legal literacy and the complexity of the situation.

If permission from the second spouse or other owners is required to complete a transaction, you cannot do without contacting a notary - he must certify their consent. Also, the services of a notary will be required if the parties resort to the help of a trusted person.

Download your spouse's consent to donate an apartment. Sample (17.1 KiB, 354 hits)

Privatization and apartment donation agreement

But there is also a statute of limitations.

Vladimir, before concluding a gift agreement and paying money, you should check the history of the apartment, as well as analyze possible risks. After which you can decide to purchase real estate or look for another property. If you need help or legal support, please contact us.

A situation in which a gift agreement could be challenged should have arisen now.

That is, it is a defect of will when making a transaction (that is, the donor is incompetent, or he was forced), or non-compliance with the law. If this did not happen, then the contract can be challenged, but to no avail.

Vladimir, hello! You have already been given many answers, but I decided to add: in theory, yes, and the heirs can go to court with a claim to invalidate the donation agreement for a share in the common ownership of the apartment.

About misconceptions, risks and the procedure for donating real estate

• agreements for the donation of real estate owned by several owners on the basis of common shared ownership, regardless of whether a share or the entire object will be donated (exceptions are transactions with land shares and transactions involving a mutual investment fund);
• transactions in which the donor is a minor, incompetent or partially capable person.

All other gift agreements not specifically provided for in the law do not need to be certified by a notary.
This will not give you anything except additional costs. To successfully pass state registration, a well-drafted gift agreement in simple written form is sufficient. Misconception No. 2 - about transferring an apartment as a gift after the death of the donor. A gift agreement providing for the transfer of an apartment to the donee after the death of the donor has no legal force (void). This condition involves the transfer of the apartment by inheritance under a will. Donation and inheritance by will are two different legal procedures, each of which has its own pros and cons.

The main benefits of donation:

• no need to wait six months, you can immediately move into the apartment or sell it, no need to pay utilities for 6 months of waiting;
• lower costs for notary services and paperwork;
• allows the donor to disinherit persons he does not like, who are legally entitled to an obligatory share in the inheritance.

The main advantages of inheritance by will:

• the right of ownership passes to the heir only after the death of the testator; accordingly, the option is excluded in which, due to a soured relationship, the donor is deprived of the right to live in an apartment that no longer belongs to him. This often happens in the case when the donee sells the apartment received as a gift to a third party who is not at all interested in having a stranger live in his new apartment;
• You can change your mind, change or cancel a will as many times as you like.

Misconception No. 3 - about reciprocal obligations on the part of the donee. The gift agreement cannot contain any conditions on reciprocal obligations on the part of the donee, including periodic payment of money, care for the donor, provision of food, medicine, clothing, etc. The listed conditions imply the conclusion of a rent agreement.

Misconception No. 4 - about the right to a property tax deduction. A person who received an apartment as a gift does not have the right to a property tax deduction, which a home buyer has the right to use once.

Risks

Risk No. 1—suspension or refusal of state registration of the transaction. Possible reasons:

• low qualifications of the lawyer drawing up the gift agreement and executing the transaction;
• lack of elaboration, inconsistency and imperfection of legislation, which may manifest itself in different interpretations of its provisions by the lawyer executing the transaction, the state registrar, notary, or judge.

In non-standard situations, if there are errors in the documents, their “respectable age” and incorrect registration typical of the early 1990s, or if there is a complete or partial absence of documents for real estate, the right decision would be to contact lawyers with extensive experience in the field of registration of rights to real estate property, because their experience will help you solve the problem with minimal costs.

Risk No. 2 - the court deems the transaction invalid due to the incapacity of the donor at the time of conclusion of the contract. A fairly common situation is when, after the death of the donor, the heirs challenge the gift agreement in court, present the medical history of the deceased as evidence of incapacity, pay for independent examinations, etc. During the consultation, we offer an additional service that almost completely eliminates this risk.

Risk No. 3 - the court deems the transaction invalid due to its fictitiousness. A gift is a gratuitous transaction that can be recognized by the court as feigned if the fact of transfer of money is proven. That is, if you accompany a donation transaction with “unofficial mutual settlements,” there is always a risk for the recipient of losing both the apartment and the money paid for it. Other grounds for declaring a transaction invalid:

• the donee commits an attempt on the life of the donor, members of his family or close relatives, causing bodily harm to the donor;
• inappropriate treatment of the donated apartment by the recipient from the point of view of the donor and the court, creating the threat of its irretrievable loss;
• conclusion of an agreement under the influence of deception, delusion, violence, threat or due to a combination of difficult circumstances;
• a number of other grounds provided by law.

Risk No. 4 - drawing up a gift agreement in cases where, according to the law, it is necessary to conclude an agreement on the division of property. Such agreements can be registered by Rosreestr, but subsequently, when interested parties go to court, they are easily declared invalid.

Risk No. 5 - violation of the rights of third parties when transferring an apartment as a gift. This happens, for example, when a jointly owned apartment is donated by one spouse without the correctly executed consent of the other spouse, as well as in a number of other cases.

Risk No. 6 - eviction of the donor from the apartment previously donated by him. Unfortunately, judicial practice inexorably shows that adding a condition to the gift agreement that the donor retains the right to lifelong use of the apartment does not solve the problem. During your consultation, we will offer you an option that completely eliminates this risk.

It's worth keeping in mind:

• a real estate gift transaction concluded between close relatives is not taxed;
• in cases where the donation of an apartment is NOT between close relatives, the recipient is obliged to pay a tax of 13% of the cadastral value of the apartment;
• to donate a share of an apartment that is in shared ownership, the consent of the owners of other shares is not required;
• To donate an apartment that is in common joint ownership, the consent of all owners is required;
• the donation of an apartment in a new building for which ownership has not yet been registered is formalized by an agreement on the assignment of rights of claim;
• a donation can be formalized and registered in the form of a written promise by the donor to donate an apartment to the donee upon the occurrence of certain conditions or after a certain time has passed;
• The gift agreement may provide for the right of the donor to cancel the gift if he survives the donee.

Still have questions? Take advantage of a free consultation by phone +7(495)9999-012, ask a question or come to our office for a consultation (by appointment). We will tell you in detail about all the pitfalls of the donation procedure, the pros and cons of alternative options for transferring real estate (sale and purchase agreement, rent, will) and recommend the optimal solution for your situation.

Is it possible to sell an apartment that you received under a gift agreement?

The interested party will be able to sell the residential property for which the deed of gift has been made. Before creating an agreement for sale, the owner of the residential property first writes out all the persons registered at this residential property.

To create a contract for the sale of donated real estate, the owner must have the following papers:

1. All-Russian passport;
2. Important papers for the site;
3. Certificate of ownership of living space;
4. Certificate of acceptance of the object.

Privatization and donation

In this case, there are the following nuances:

• If the agreement is drawn up between close people , then the creation of a gift agreement is not subject to taxation;
• When a gift agreement is created between individuals who are distant relatives, the donee will need to pay 13 percent of the total cost of the residential property.

• In what ways will the creation of a gift agreement be carried out:

• If the agreement is concluded by interested parties , then citizens pay only the state duty when creating a gift agreement and the tax on the donated apartment (if necessary);
• If the deed of gift is drawn up with the help of a notary , then interested parties will have to pay additionally: The cost of providing notary services.

If a gift is chosen: what are the advantages of a gift for real estate?

It is this procedure between people who are related that has now become especially popular.

Deed of gift is a document written on a voluntary basis for the purpose of transferring property as a gift, free of charge.

It is final, since immediately after the completion of the procedure, ownership passes to another person.

The parties to this agreement are the donor and the recipient.

Advantages of a deed of gift:

• quick and easy paperwork.
  The form can be found on the Internet and filled out. A total of 3 copies are required, which do not necessarily need to be certified by a notary. Agreements will need to be signed by both parties and taken to employees of authorized state registration authorities. It is especially convenient to transfer property in this way during an urgent departure or serious illness.
• According to the gift, the apartment goes to one specific person (the recipient), who will have all the rights and no one will be able to claim his property after the death of the donor, even close relatives of the deceased.
  IMPORTANT: If the marriage of the recipient and her husband (wife) is dissolved, the apartment will not be subject to division.
• When concluding an agreement with close relatives, this procedure is not subject to taxes.
• A person who has received an apartment under a gift agreement receives ownership rights from the moment of bilateral signing of the papers.

Disadvantages of deed of gift:

1. if the relative is not the closest (cousins, brothers, uncles, aunts), the recipient will have to pay a tax in the amount of 13% of the cadastral value of the apartment.
2. A citizen who has received an apartment as a gift can own property at his own discretion, even to the extent that strangers move into its area, without consulting the donor, except for his eviction and sale of the home.
3. Difficulties in recognizing the contract as invalid and terminating it, except in cases where:
   the donor is an elderly person;
4. threats and pressure from a person wishing to receive real estate as a gift were recorded;
5. the donor has this apartment as the only property he owns;
6. the recipient died before the donor;
7. using housing for other purposes, making it unfit for habitation.

IMPORTANT. If an apartment under a gift agreement is registered in the name of a child under the age of 16, then his parents or legal guardians will accept the property as a gift, and he will be able to dispose of the apartment only upon reaching 18 years of age.