How to find out about the possibility of donation?
Since banks are not too willing to agree to the donation procedure
, then permission to make a gift must be asked specifically from the financial company.
Studying the contract
In order to be able to give a mortgaged home as a gift in the future, when drawing up a loan agreement, you must ask to include a clause that allows the client to alienate the mortgaged home in favor of 3rd parties, but again only with the permission of the financial company.
If this clause is included in the contract, then the financial company will at least consider the option of donation, and will no longer be able to simply dismiss your application.
If only the financial company allows it, you can draw up a gift agreement, which must be done in writing. It is not necessary to visit a notary for certification.
But there is an important rule regarding this document - it must be executed correctly and registered in the State Register.
The donation transaction has no age restrictions - housing can be donated to either an adult or a minor.
What does the law say?
The legislation directly indicates that if the property is collateral, then the borrower can no longer fully use the property.
How does this affect the financial company client? Procedures relating to the sale or gift of property are carried out only with the permission of the financial company. This includes the deed of gift. This means that until the bank client pays the company, he will not be able to fully use the property. Accordingly, a bank client will be able to sell housing only if he receives permission from the bank.
By the way, a bank client can allow someone else to use the property. Only the borrower can pay for the mortgage
.
Terms of a transaction
Registration of a deed of gift with a current mortgage on an apartment is not an easy procedure. Before entering into a deal, you need to study your life circumstances.
Conditions for donating a share in mortgaged living space:
- clause on the possibility of donation during the mortgage repayment period;
- consent of the donor and the donee, for example, to the transfer of rights and obligations under the pledge agreement;
- re-registration of a mortgage agreement at the request of the borrower.
A mandatory condition of the transaction is registration of changes with the Rosreestr authority. The new owner (donee) will assume legal rights only after registration with government agencies.
Please note that banks do not agree to donate shares in favor of children, pensioners, the poor and orphans, i.e. those who are unable to meet mortgage payment obligations. The only option is to donate the share to such persons, but retain the obligation to repay the loan (clause 38 of the Federal Law “On Mortgage”).
Expert opinion
Semyon Frolov
Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.
Question:
Can we give a share to a child if the living space was purchased with maternity capital? The mortgage has already been repaid by ⅔, but we have not yet contacted the bank.
Answer:
Registration of a deed of gift for a share in an apartment is considered an alienation of property. According to paragraph 1 of Article 37 of Federal Law No. 102 “On Mortgage (Pledge of Real Estate)”, donation is possible only with the permission of the holder of the pledge, i.e. banking institution. Read the mortgage loan agreement. If it contains a clause about donating a share before the mortgage is repaid, then you will be able to complete the deal. The absence of such a clause makes it difficult to donate a share. You will have to write an application to the bank and apply for permission to complete a transaction with an encumbrance.
One more point: If you plan to donate a share to a child using maternity capital, the parents must draw up a preliminary gift agreement or formalize an agreement on allocating the share to the children.
How to formalize the donation of an apartment with a mortgage?
Let's look at exactly how the donation procedure takes place and what is needed for this.
What will you need?
If the bank nevertheless agreed to meet the borrower and allowed him to donate the home, then the new owner should be prepared for the fact that he will undergo a serious check on his solvency by the financial company.
The new borrower will be checked in approximately the same way as the previous one. That is, they will ask him:
- income of the future owner;
- how much money will remain with the borrower after making mandatory payments;
- number of dependents and other expense items for the owner.
The financial company must also make sure that the new borrower wants to receive not only housing as a gift, but also debt obligations.
Obtaining bank consent
If a financial company has agreed to the donation procedure, not only the agreement, but also the identity of the donee will be subject to verification.
If the home is donated, the mortgage loan will not stop, so the donee will undergo the same test for the ability to repay the loan as the borrower who once passed this procedure.
The bank will take into account the total income from all sources of the future owner, the profitability of his family members, the number of dependents, as well as the amount of monthly expenses and stability of earnings.
By the way, the donee must clearly understand that he is becoming a borrower on a new mortgage loan
. Therefore, the bank very often allows a gift transaction in relation to a minor.
Required documents
In order to go through the donation procedure, you need to collect the following package of papers:
- Papers that prove the identity of both the recipient and the donor.
- Homeowner's papers.
- Cadastral or technical passport.
All these papers will be needed to draw up a gift agreement.
Gift deed for a mortgage apartment
A document such as a gift agreement should be drawn up in writing, and this can even be done without notarization. It is necessary that such an important document be drawn up legally correctly and registered in the State Register.
The deal is valid for different age categories - for example, you can donate housing even to a minor. If the child is not yet 14 years old, then the gift agreement can be signed by parents or guardians on his behalf. If the child has already reached 14 years of age, then he can sign the agreement on his own.
Step by Step Actions
Step-by-step instruction
as follows:
- First you need to get bank approval for the procedure.
- If the bank agrees to the procedure, you can draw up a gift agreement.
- At the last stage, all that remains is to register the housing in Rosreestr.
Required documents
To obtain approval from a banking institution, you will need to submit:
- statements in the bank form;
- borrower's passport;
- income certificate 2-NDFL or according to the form of a banking organization;
- title documentation for another living space.
Bank employees may request other documents (marriage certificate, child birth certificate, etc.).
If approved by the bank, the citizen should visit a notary office to draw up a deed of gift and register it with Rosreestr. To do this, you will need to submit the following documents:
- written consent of the credit institution;
- passports of the borrower and donee;
- title documentation for housing;
- technical passports;
- current extract from the Unified State Register of Real Estate;
- consent of the second spouse or co-owners - if the living space belongs to several people;
- certificates of family composition (extracts from the house register);
- documentation confirming relationship;
- permission from the guardianship authority (if necessary).
Possible problems and nuances
The main problem is that financial companies do not approve such transactions for everyone. Since the payer of a mortgage loan changes, the bank bears great risks. No one guarantees the bank that the new borrower will fulfill his loan obligations as well as the previous payer.
That is why the bank requires the same package of documents from the new borrower as from the previous one. You will also need to confirm your financial solvency.
For the same reasons, the bank rarely approves transactions in relation to minor citizens. The bank cannot be sure that the child will be able to pay the monthly payments.
As mentioned earlier, the bank rarely approves such transactions. And in order for a client of a financial organization to have at least some chance of donating an apartment, this point must be stipulated in advance in the contract.
Legal basis
It is regulated by a number of legislative acts. If we talk more specifically about secured lending, this aspect is regulated by Federal Law No. 102-FZ “On Mortgage (Pledge of Real Estate)” adopted on July 16, 1998.
Federal Law No. 102 establishes the grounds that precede the procedure for concluding a mortgage lending agreement and regulates the rights and obligations of the parties to the agreement. It states how
The procedure for registering pledged property is described, and on what grounds it can be terminated by one or the other party. The parties to the interaction are:
- mortgagor, owner of the acquired property;
- mortgagee who financed the purchase of living space.
Based on the legal norms of Federal Law No. 102, a mortgage loan agreement and a mortgage note are drawn up. This normative act is drawn up taking into account the interests of both parties to the relationship. Amendments and changes are made to it annually in order to correct shortcomings that were identified during the application of legislative norms.
What happens if you donate an apartment without the bank’s knowledge?
Is it possible to donate a home without the knowledge of the financial company? Perhaps the borrower will somehow be able to pull off such a transaction, but this will immediately be followed by the actions of the financial company.
- A lawsuit. The bank, through legal proceedings and filing a claim in court, has the right to challenge the deed of gift. And the financial company will be right in this case.
- The bank may also require that loan obligations be fulfilled ahead of schedule. The bank has the right to demand from the borrower that the remaining debt be paid immediately. The bank may also demand that the home be sold regardless of who exactly is its owner.
So, as you probably already understood, it is very difficult to donate housing that is under a mortgage. This can only be done in the following cases:
- If the debt is repaid early.
- If the bank has approved the transaction.
In addition to the fact that you need to obtain the appropriate consent from the bank, the procedure for donating a mortgage is quite complex.
After all, in most cases, the borrower cannot immediately repay the debt, and financial companies do not want to make such transactions.
On what grounds will the bank not give permission? Is it possible to appeal the bank's decision?
- The bank will not give you permission to make a gift if you are a persistent defaulter and have already had unpleasant incidents several times regarding non-payment.
- The second reason why a refusal may follow is the fact of how much of the loan you have repaid. The closer the payment is to completion, the greater the likelihood of receiving permission.
- If the agreement with the credit institution initially stipulated a ban on transactions with property until the mortgage was repaid, then you cannot argue with this.
- Another reason is distrust in the borrower due to his lack of permanent work, and, consequently, the ability to pay the mortgage. There are other reasons, but they are somewhat less common, so we will not focus on them.
Pros and cons of donating a mortgaged apartment
The main advantages of registering such a donation procedure are as follows:
- The main advantage is that the donation procedure is very simple. In this case, the borrower can either have the agreement notarized or draw it up independently.
- It will also not be difficult to find a document form and a sample of how to fill it out.
Unfortunately, there are also some disadvantages - in particular, banks are very reluctant to agree to such transactions, and if they agree to them, then the person receiving housing under a gift agreement is checked for solvency as carefully as the previous borrower.
You can learn about what you can and cannot do with mortgaged housing from the video.
Important Details
When concluding a gift agreement with an encumbrance, it is necessary to take into account some important details. In particular, encumbrances can be divided into two main groups. The first group includes encumbrances that prohibit the owner of the property from carrying out certain actions, and the second group includes encumbrances that impose additional obligations on the owner.
When concluding such a transaction, it is necessary to take into account the restrictions established by law. For example, young children cannot act as donors. It is prohibited to enter into such an agreement between business entities (with the exception of donations for certain public needs and gifts given to employees).
All of these restrictions must be taken into account when concluding a gift agreement.
The law prohibits the conclusion of a gift agreement with civil servants in connection with the performance of their official duties.
Who is considered a close relative?
You, of course, can consider anyone your close relatives: from a second cousin to a great-nephew. However, it is necessary to focus on the Civil Code of the Russian Federation. According to current legislation, close relatives include:
- father and mother
- daughters and sons
- Grandmothers and grandfathers;
- siblings (including those who share the same parent)
- grandchildren and granddaughters
Donating an apartment to a close relative
You can give real estate to any close relatives, including minors. They will be able to manage the property independently after reaching the age of 18.
