Detailed and up-to-date instructions on how to formalize the donation of an apartment in 2021

Article updated: July 3, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. Since 2014, I have helped 29 clients conduct transactions to donate their apartments. Now the law has changed, so the instructions for drawing up a deed of gift have also changed.

To formalize the donation of an apartment you need to: 1) draw up a donation agreement; 2) donors and recipients must sign it; 3) submit the agreement along with other documents to the MFC or the Registration Chamber (UFRS) so that the transaction is registered there.

The instructions on this page are suitable for most cases. I have also published separate instructions depending on the situation, you can choose:

• Donating an apartment to a close relative. For example, to your adult child/children or minor child/children;
• How can a husband give his wife an apartment that was purchased during marriage?

Stage No. 1 – draw up a gift agreement

If all apartment owners (donors) are adults and capable, a gift agreement will be suitable in a simple form - more details. Who will be the recipient (to whom the gift is given) does not matter. If the owner-donor is a minor or incompetent, the agreement is required in notarial form - clause 2 of Art. 54 Federal Law N 218-FZ.

I have uploaded standard contracts for the most common cases. If your case is not there, download several samples that suit your meaning and create your own based on them.

• One donor and one donee - or
• One donor and several donees (in equal or unequal shares) - or
• Several donors and one donee - or
• Several donors and several recipients (in equal or unequal shares) - or a sample
• The apartment is given to a minor child (under or over 14 years old) - or
  The contract should also indicate the representative of the child-done - one of the parents, guardian or trustee Art. 26 and art. 28 Civil Code of the Russian Federation. If a child is given an apartment by one of the parents and the spouses are married, we indicate the other parent as the child’s representative under the contract. When donating an apartment by both parents, either of them can be the child’s representative. If the spouses are divorced or there is no second parent (died, not indicated on the birth certificate, etc.), then the first parent can be both the donor and the representative of his child-done - letter of the Federal Tax Service dated June 21, 2021 N 2664/ 06-08. When a child is given an apartment by, for example, a grandmother, one of his parents (guardian) may be his representative. Better mother.

  For a child under 14 years of age, the contract is signed by his representative specified in the contract - Art. 28 Civil Code of the Russian Federation. The presence of the child is not required anywhere. A child from 14 to 18 years old signs the contract himself + his representative signs as consent - Art. 26 Civil Code of the Russian Federation. Then both submit the agreement for registration.

• With a clause on the lifelong right of residence of the donor - or
• By power of attorney from the donor - or
• By power of attorney from the donee - or
  the Donor does not have the right to sign an agreement for the donee, and vice versa - clause 4 of Art. 182 of the Civil Code of the Russian Federation. Therefore, they cannot issue a power of attorney for each other to sign. You can, for example, collect documents and submit a registration agreement.

IMPORTANT - an agreement between close relatives does not differ from a standard agreement and is drawn up in the same way as any other. Because it makes no sense to indicate the degree of relationship between donors and recipients. I described all the details in the link.

After the agreement has been drawn up, it must be taken to the MFC “My Documents” or the Federal Registration Service so that on its basis the transfer of ownership to the donees can be registered. More details later in stage No. 2.

How to donate movable property?

To donate movable things, registration is not required; notarization is almost always not required. Written form is not required.

Let's look at the example of donating a car:

1. The donor gives the recipient the keys to the car, and information about the new owner is entered into the PTS.
2. The donee buys compulsory motor liability insurance and goes to the traffic police for registration.

Important! Registration of a vehicle and registration of ownership are two different things. The ownership of the car to a specific person is confirmed by the deed of gift, PTS and STS.

Documentation

To make a verbal gift of movable property, it is sufficient to transfer documents confirming ownership. For a written transaction, you will additionally need the passports of the parties. If the donor decides to enter into a donation agreement for a car, you can use the sample below:

Sample car donation agreement:

Stage No. 2 - contact the MFC or the Registration Chamber (UFRS) to register the donation transaction

If the gift agreement is drawn up in a simple form (without notarization), the participants in the transaction themselves submit documents for registration. Starting from 2021, in many cities you can submit documents for registration only at the MFC, from where they are transferred to the Registration Chamber. In most cases, the Registration Chambers no longer accept citizens directly, but only through an intermediary in the form of the MFC. If in your locality you can submit documents directly to the Registration Chamber, it is better to do so.

There is no difference in submitting documents to the MFC or the Registration Chamber, so in the instructions I indicated through the MFC, because this is a more common case.

1. Parties to the MFC donation agreement with other documents.
   If the donee is under 14 years old, one of the parents (guardian, trustee) specified in the agreement must be present and sign the agreement instead. If he is between 14 and 18 years old, he is present together with one of the parents (guardian, trustee).

   The state fee for registration is 2,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). Payment details can be obtained from an employee. The cash desk is usually located in the MFC building or nearby. The state duty is paid by the donee and is indicated on the check, but in practice it makes no difference who does it.

   After paying the state fee, in order of priority, give the original documents to the employee:

   Passports of donors and recipients;
   For a donee aged 14 to 18, his passport and the passport of one of the parents (guardian, trustee) will be required. If he is under 14 years old - his birth certificate and the passport of one of the parents (guardian, trustee).
2. Donation agreements;
   The number of copies of the agreement depends on the number of participants in the transaction + one copy remains in the MFC. For example, if there are two donors and one donee, 4 copies are needed.

   Agreements are signed by both parties. If the agreements are in a simple form, you can sign them in advance or in front of an MFC employee. There is no difference here. If the agreement is in notarial form, it is signed only in front of a notary.

   For a donee under 14 years of age, the contract is signed by one of the parents (guardian, trustee). If he is between 14 and 18 years old, he signs together with one of the parents (guardian, trustee).

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3. Consent of the donor's spouse certified by a notary;
   When you need it, check out the link for details. Briefly - when the donor-owner bought an apartment during marriage. In this situation, it is considered the joint property of BOTH spouses, even if it was registered in the name of only one of them - clause 2 of Article 34 of the RF IC. Consent is issued only by a notary - clause 3 of Art. 35 IC RF. Costs 1,500 - 2,000 rubles. Additionally, a marriage certificate will be required.

4. If a proxy acts for one of the participants in the transaction - a notarized power of attorney (original and copy). However, donors cannot issue a power of attorney for the donee to sign a gift agreement for him, and vice versa. Because the donor and the donee cannot be the same person - clause 3 of Article 182 of the Civil Code of the Russian Federation. They have the right to issue a power of attorney to each other only for submitting an agreement for registration and receiving it, but not for signing.
5. Marriage or divorce certificate;
   If the donor has ownership of the apartment in one surname, but now has a different surname in his passport.
6. Receipt for payment of state duty.
7. Based on the documents received, the employee will draw up applications for registration of rights, which donors and recipients must check and sign .
8. Then the MFC employee will pick up the documents (except passports), give each participant a receipt for their receipt and set a date when they can be picked up .
   The documents will be sent to the registrar. Now all that remains is to wait for the transaction to be registered. According to Art. 16 of the Federal Law of July 13, 2015 N 218-FZ maximum registration period: 9 working days when submitting documents to the MFC; 7 working days when submitted directly to the Rosreestr branch. Due to the workload of Rosreestr, there are sometimes delays. To clarify the completion date, you can call the phone number indicated on the receipt.
9. On the appointed day, donors and recipients must pick up their copies of the agreement with a state registration mark at the MFC . They do not have to pick them up at the same time, but can be picked up separately at different times and days. The recipients will also be given a new extract from the Unified State Register for the apartment, in which they will be indicated as the new owners. Property registration certificates have been canceled and will not be issued as of July 2021. It is enough to have your passport and receipts issued by the employee.

Other articles
Tax when donating an apartment - the amount, who pays, payment procedure, when you don’t have to pay. After the donation, the new owner can safely register in the apartment.

If the gift deed was certified by a notary

In this situation, the notary is obliged to submit a certified registration agreement himself, free of charge and immediately - Art. 1 of the Federal Law of August 3, 2018 N 338-FZ and clause 2 of Art. 22.1 Basics about notaries. This is already included in the transaction certification service. Explanations from the Federal Chamber of Notaries can be found here.

Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to file electronically, he or his assistant is obliged to file in the traditional way within a maximum of 2 working days. The registration period will then be 3 working days. All this is indicated in paragraph 9 of Art. 16 Federal of July 13, 2015 N 218-FZ.

In addition to certification services, the parties must pay the notary only the state registration fee - 2,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount, so the state fee is reduced to 1,400 rubles. It is paid for by the donee, but in practice the notary doesn’t care who gives the money.

After the transaction is registered in the Unified State Register of Real Estate, the recipients will become the new owners of the apartment. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.

Procedure for transferring a gift

The legislator specifically regulates this procedure only for cases of oral donation. At the request of the parties, the procedure can be established by a written deed of gift. Let's consider the options.

The parties entered into a real agreement for the donation of movable property in writing. Since the conclusion and execution of the transaction coincide in time, it can be stated in the deed of gift that its signing by the donee indicates that he has received the gift in kind.

The parties entered into consensual agreement regarding movable property in writing. A donor who does not document the fulfillment of his obligations risks becoming a victim of an unscrupulous counterparty.

Having a gift promise in hand, the donee can demand its fulfillment (in reality - again, but according to documents - for the first time). To avoid this, the fulfillment of the gift promise should be formalized with a receipt or a bilateral deed of acceptance and transfer .

Additionally

Unlike the sale and purchase (Article 556 of the Civil Code), the donation of real estate does not imply the mandatory drawing up of a transfer deed. The condition of the property is not decisive, since the donee receives it free of charge.

The donee is considered the owner of the donated real estate from the date of state registration without observing additional formalities (Article 164 of the Civil Code).

Example

Individual entrepreneur O. received used display cases and refrigerators as a gift from her friend K. Six months later K. died. The son of the deceased demanded the return of the equipment. He stated that he is its owner as an heir. Since O. refused, a lawsuit was filed. O. provided the court with a gift agreement written by K. in her own hand and signed by both parties. The contract consisted of one sentence. It is indicated that K. is donating equipment for the store. A list of objects is provided indicating the brand, year of manufacture, and unit number. O. also provided technical documentation for part of the disputed equipment, which K herself gave her.

Son K. stated that the document provided by O. cannot be considered a gift agreement. It is handwritten and does not contain references to regulations. His mother’s equipment was kept by O. for temporary use.

A comment. Art. 160 of the Civil Code, which regulates the written form of a transaction, does not require the parties to adhere to any scheme, refer to regulations or use legal terminology. The parties are free to enter into transactions (Article 421 of the Civil Code). The law applies to all unresolved issues. Sections such as “Procedure for resolving disputes” or “Final provisions” in the deed of gift can be omitted without prejudice to the regulation of legal relations.

Advantages and disadvantages of deed of gift

The benefits of donating a house and land include:

• Transparency of the transaction and simplicity lies in the fact that a minimum number of documents must be submitted to Rosreestr, and it is not necessary to notarize them;
• It takes a short period of time to complete the paperwork and register.

The main negative side of gift transactions are cases in which persons who are not classified as close relatives are forced to pay a hefty tax. Then it is better to conclude a purchase and sale agreement.