How to correctly draw up a deed of donation of non-residential premises?

A contract for the donation of non-residential premises means an agreement under which one party transfers the ownership of a piece of real estate, not intended for people to live in it, to the other party free of charge. Non-residential premises include various types of buildings, warehouses, garages, etc.

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The subjects of such a transaction are: the Donor - an individual donating non-residential premises, and the Donee - an individual who accepts the specified property as a gift. It should be noted that this transaction can only be concluded between individuals. At the same time, employees of state and municipal bodies cannot act as Donees.

Another important point is the taxation procedure. If the donor and the donee are close relatives, then the agreement is not subject to taxation. If a transaction is concluded between persons who do not have family ties, the Donee undertakes to pay a tax in the amount of 13% of the value of the non-residential premises.

To conclude such a transaction, it is necessary to draw up a donation agreement for non-residential premises in writing. In this case, it is important that the Donor is the owner of the specified property. Below, using the example of a warehouse donation agreement, we will look step by step at how to draw up such a document and what aspects should be paid attention to.

Features of donating non-residential premises

The same donation rules established by Chapter 1 apply to residential and non-residential premises. 32 of the Civil Code of the Russian Federation. According to Art. 574 of the Civil Code of the Russian Federation, the donation of any real estate is made in writing, where the owner is the donor, and the recipient of the gift is the donee.

What features are important to consider:

1. You can donate any premises owned by the donor. If he rents it, the deal is invalid.
2. The organization to which the premises belong by right of economic management has the right to donate the building with the written consent of the actual owner.
3. If the donated property is jointly owned, the consent of the remaining owners will be required.
4. To donate real estate in shared ownership, the permission of other owners is not required.
5. Giving a gift worth RUB 3,000 or more. from a legal entity is drawn up in writing. If necessary, you will have to take the consent of the remaining participants, if this is provided for in the constituent documents.
6. If the premises have defects that pose a threat to life and health, the donee must be notified about them, otherwise he will be able to recover compensation on the basis of Art. 580 Civil Code of the Russian Federation.
7. You cannot make gifts worth more than 3,000 rubles. employees of banks, state and municipal bodies, social and educational institutions, if the transaction is related to the performance of their official duties.

Important! The gift agreement (hereinafter referred to as the DD) is drawn up in the presence of both parties. If the donee or donor cannot sign it personally, legal representatives by power of attorney have the right to act on their behalf.

General design requirements

Fundamental and mandatory in the gift agreement are the essential conditions for the donation of real estate. The Civil Code (Chapter 28 of the Civil Code of the Russian Federation) provides the following requirements for the correct execution of an agreement:

1. The agreement must be drawn up in writing.
2. Since two parties interact when giving: one gives, and the other accepts real estate as a gift, it is necessary to write down specific data for each of the parties in as much detail as possible.
3. The subject of the donation must be described in detail, that is, the specific object of non-residential real estate being donated: its name, address, cadastral number, dimensions, technical characteristics.
   For example: in accordance with the terms of the Agreement, the Donor undertakes to donate a Car Wash located at the address: Moscow, st. Tsiolkovskogo, 7, cadastral number – 77:16:0889632:224, total area of ​​the facility – 164 square meters, room height – 4 meters. The internal and external cladding consists of sandwich panels with a polymer coating, a supply and exhaust ventilation system, an autonomous heating system, etc.
4. It is necessary to indicate in detail the title documents for the designated property (on what basis it belongs to the owner).
5. It must be stated that the transfer of real estate is carried out free of charge, you will not have to pay for it (no counter actions need to be performed).
6. Additionally, the gift agreement can also specify the terms for the transfer of non-residential real estate.
   If the deadline is not specified, then the object is considered transferred at the moment of signing the contract.
7. It is also necessary to confirm the legal capacity of both parties to the transaction.

What kind of non-residential premises can be donated?

Non-residential includes all buildings or premises that are not intended for human habitation and have a specific purpose:

• garages;
• non-residential premises in apartment buildings (usually on the first floors);
• offices, warehouses;
• industrial premises;
• the shops;
• detached buildings;
• non-residential properties owned by the municipality.

The main condition is the recognition of the premises as non-residential and the availability of relevant documents where this will be indicated.

It is important to consider that individual buildings are donated along with the land plots on which they are located. Not only premises are donated, but also shares in ownership, or allocated shares in kind.

How to correctly draw up a deed of gift for a land plot?

How to properly draw up a real estate donation agreement and what is needed for this?

What documents are needed

First of all, the donor must obtain the consent of the donee to accept the non-residential premises as a gift, after which he can begin collecting the documents necessary for the transaction, the list of which includes:

• Passports of both parties (original identity cards of the donee and the donor);
• technical and cadastral documentation with information about the transferred object;
• papers confirming the real ownership of the donating party to dispose of the donated real estate.

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Who can you donate non-residential premises to?

Typically, the DD of non-residential premises is concluded between individuals, but other variations are possible:

• from an individual to a legal entity;
• from a legal entity to an individual;
• between citizens who are close relatives;
• gift to a minor.

In the latter case, it is important to take into account that a child over 14 years of age participates in the transaction independently, but with the consent of the parents. Parents sign for children under 14 years of age.

Let's consider an example of a gift between individuals:

A man (individual entrepreneur) owns a store located in a separate building. He decides to give it to his daughter so that she can continue to do business as an individual entrepreneur.

The parties agree on the terms of the transaction and sign the agreement by contacting a notary. After concluding the DD, they apply to Rosreestr for registration, and the donor’s daughter becomes the owner of the building and the store.

Important! If the donor, along with non-residential premises, wants to donate the property located in it, this should be reflected in the contract. Otherwise, it will only apply to real estate.

Gift from an individual to a legal entity

An individual means any citizen or individual entrepreneur, while only commercial or non-profit organizations are recognized as legal entities.

A citizen has the right to donate a non-residential building or premises to an enterprise under a gift agreement.

If both parties to the transaction are engaged in commercial activities, donation is prohibited.

Legal advice: if a person wants to make a gift for the general benefit of a non-profit organization, it is better to draw up a donation agreement (Article 582 of the Civil Code of the Russian Federation). This will allow you to control the use of the property for its intended purpose, and if necessary, it will be easier to challenge the transaction.

Donation of non-residential premises between legal entities

This option is also possible if one or both parties are engaged in non-profit activities. Property that belongs to the organization and is on its balance sheet is donated.

The deed of gift is signed by the founder or other authorized person, after which accounting documents are drawn up and the gift is deregistered. On the contrary, the donee must draw up all the documents himself.

Parties involved

The parties to the gift agreement can be both relatives and complete strangers (individuals and legal entities). However, there are some prohibitions and restrictions when giving. According to the Civil Code (Article 575, Article 576 of the Civil Code of the Russian Federation), it is prohibited to give real estate:

1. On behalf of incapacitated and minor citizens.
2. Employees of medical, social, educational organizations.
3. Civil servants, municipal employees, etc.

Important! It is prohibited to carry out a gift transaction between commercial organizations.

Donation of non-residential premises with an encumbrance in the form of rent

After the donation, the right of ownership passes to the donee, but it is not necessary to terminate or renew the lease agreement with tenants of non-residential commercial premises (Article 617 of the Civil Code of the Russian Federation).
But the deed of gift must indicate that the property is leased from another company or person. After signing the DD, you need to notify the tenant about the change of parties. After re-registration of real estate, it is the new owner who receives the rights and obligations of the previous lessor (donor).

Important! You do not need to take permission from the tenant to donate the premises to another person or organization.

The procedure for drawing up a contract of donation of non-residential premises

The procedure for concluding a DD for a non-residential premises or building consists of several stages:

1. Drawing up a deed of gift. The conditions are agreed upon by the donor and the recipient. The contract is drawn up independently or with the participation of a lawyer.
2. Signing the contract. In most cases, notarization is not required, but if a notary's signature is required, the parties sign in his presence.
3. Submitting documents to the registrar. The contract itself is not registered, but ownership is re-registered. You should contact Rosreestr or the MFC; the attendance of both parties is required.

Finally, the new owner receives an extract from the Unified State Register. Registration actions are allotted 10 calendar days.

Legal advice: it is better to ask a notary for certification, even when his signature is not required. This will protect the transaction from challenges and claims from third parties.

Contents and sample agreement for the donation of non-residential premises

There is no unified form for deed of gift, but it is necessary to submit an agreement to Rosreestr containing complete and reliable information about the transaction:

• Full name, registration addresses, dates of birth, passport details of the parties;
• date of conclusion;
• start date of execution of the DD: after signing or on a specific day (if a contract of promise of donation in the future is drawn up);
• information about the premises: address, area, number of rooms, cadastral number, date of ownership of the donor;
• the intention of the donor to transfer property to the donee free of charge;
• conditions for changing or terminating the transaction.

At the end, the parties sign. The DD is drawn up in three copies: one remains with the citizens, the third is transferred to the registrar for making changes to the Unified State Register.

Sample contract for donation of non-residential premises:

Documentation

To draw up a deed of gift, you will need the passports of the parties, a certificate of ownership or an extract from the Unified State Register of Real Estate for real estate, and a document on the basis of which the donor owns the real estate.

Notarial consent of the remaining owners is also provided if the property is jointly owned (bought during marriage).

You do not need to provide a receipt for payment of the state duty, but it may be required if the registrar does not see the receipt of money. It's better to take it with you. The state fee for re-registration of property rights is paid by the donee.

State duty

The state duty for citizens is 2,000 rubles, for commercial and non-profit enterprises – 22,000 rubles.

What does the law say about procedure?

General rules on donations are contained in Chapter 32 of the Civil Code of the Russian Federation (hereinafter, wherever not otherwise indicated, the numbers of articles and chapters refer specifically to this code). She points out that donation is an agreement by which one person transfers a thing, and the second accepts it, without reimbursing any expenses or making a counter-transfer. This is precisely the key concept: if the donor receives at least something in exchange for property, relations with the recipient must be regulated by other norms.

In this case, the object transferred under such an agreement is non-residential real estate, and specifically premises. Its legislative features:

• It cannot be moved without causing disproportionate damage to it (Part 1, Article 130).
• Rights to it are subject to registration in the Unified State Register of Real Estate (Article 131 and Federal Law “On State Registration of Real Estate” No. 218-FZ).
• A room is a part of a building that has certain functions and is delimited from the rest of the volume by building structures (clause 14, part 1, article 2 of the Federal Law “Technical Regulations on the Safety of Buildings and Structures” No. 384-FZ).
• Non-residential is a room or building that is used for any purpose other than the permanent residence of people in it (Appendix No. 1 to the Instructions on accounting for housing stock, approved by order of the Ministry of Land and Construction of the Russian Federation No. 37 of 2008).

It should be noted that not all persons can be the donor and the recipient. Yes, Art. 575 directly prohibits being donors:

1. Representatives of children and citizens deprived of legal capacity - if they act on their behalf, and not on their own.
2. Commercial organizations - in relation to other commercial organizations.
3. Citizens who are undergoing treatment, maintenance or upbringing in medical, educational or social organizations - in relation to the staff of these organizations. Relatives or spouses of such citizens are also prohibited from being donors.

It is prohibited to receive gifts:

1. Officials of state or municipal authorities, employees of the Central Bank, if the gift is related to their activities. The ban does not apply to small (up to 3,000 rubles) gifts received in connection with business trips, protocol events, etc.
2. Employees of the Pension Fund, Social Insurance Fund, Federal Migration Service and other organizations that are not government bodies, but created to solve the problems facing the state (Resolution of the Government of the Russian Federation No. 568 of 07/05/2013).

In addition to prohibitions, there are also restrictions (Article 576). In particular, organizations whose property is not owned, but managed or managed, can donate it only if the owner has given direct consent. Also, donation of property jointly owned by two persons (for example, if the premises belong to two spouses) is permitted only with the common consent of all owners.

Finally, according to Art. 578, the gift is irreversible. The previous owner will be able to demand the premises back only in a few fairly specific cases:

• The donee attempted to kill the donor himself or his close relatives. If the attempt was successful, the heirs of the murdered person have the right to demand the gift back.
• If the donation was made by a commercial organization or individual entrepreneur six months before being declared bankrupt, etc.

In all cases provided for by law, the return of the item is made by court decision.

IMPORTANT: Since non-residential premises are usually used for commercial purposes, they are often rented out. And when donating in accordance with Art. 617 leases are not interrupted, and tenants have the right to continue to use them under the same conditions as before.

What taxes will you have to pay?

When receiving property as a gift, you must pay personal income tax in the amount of 13% of the cadastral value. But this rule does not apply to close relatives of donors who received gifts - they do not pay taxes (Article 217 of the Tax Code of the Russian Federation).

Such relatives include:

• spouses;
• parents;
• full or half brothers, sisters;
• children.

Before payment to the Federal Tax Service, a 3-NDFL declaration is submitted by April 30. After reconciliation, personal income tax is paid by July 15. Payers calculate taxes themselves. Donors do not pay anything, because... do not make a profit from the transaction.

Challenging a contract of donation of non-residential premises

The deed of gift is contested in court if there are grounds provided for in Art. 166-179, Art. 578 Civil Code of the Russian Federation:

• signing a contract under the influence of delusion, blackmail, violence;
• incapacity, limited legal capacity of the donor at the time of execution of the transaction;
• signing a deed of gift by a citizen who is not aware of the consequences of his actions;
• commission by the donee of a crime against the health and life of the donor. In case of death, the DD is disputed by the heirs;
• careless handling of donated premises in the presence of a risk of irretrievable loss, if the property is of non-property value to the previous owner.

The donor's creditors can also challenge the transaction if the property was purchased with funds from business activities, and the DD itself was drawn up within six months after the citizen or organization was declared bankrupt.

Pros and cons of the procedure

It is convenient to use a gift transaction in the following situations:

1. Use this method of transferring non-residential premises instead of a will. Thanks to this, you will not need to wait for the legally required period to enter into an inheritance and avoid notarial expenses (additional).
2. If you give real estate to a member of your family who is married (most often parents give it to their child), then in the event of a divorce this property will not need to be divided with the second spouse, since it will be only his property (Article 36 of the RF IC).

Among the minuses it is worth highlighting:

• The gift transaction is subject to a tax of 13% of the value of the property (unless we are talking about close relatives), and this is a very decent amount.
• The donor has no right to express any additional wishes, because this is an unconditional transaction.

In addition, there are some other nuances and risks when transferring non-residential premises under a gift agreement.

Pitfalls and possible risks

Of course, when drawing up a deed of gift, you need to clearly understand that there are some pitfalls and risks:

1. The donor cannot simply (except for exceptional cases prescribed in Article 578 of the Civil Code of the Russian Federation) cancel the donation, unlike a will, which can be changed or canceled at any time.
2. The donor loses ownership rights immediately after the gift agreement is signed and the transfer of ownership to the donee is registered. From this moment, the donee becomes the full owner of the property and can dispose of it absolutely independently at his own discretion.
3. It is worth pointing out another unpleasant risk - some try to cover up a purchase and sale transaction with a gift agreement. This is definitely not worth doing, since according to Art. 170 of the Civil Code of the Russian Federation, such a transaction is considered a sham and, upon the claim of interested parties, each party (of the participants in the transaction) will have to return everything received back (in kind or in cash equivalent).

If you are the owner of non-residential real estate or are planning to become one, then you may find our articles about other transactions with such premises, namely their purchase, sale and rental, useful.

Arbitrage practice

The donation is contested in court. Evidence will be required to support the validity of the claims. If they are not there, achieving what you want will be problematic.

But there are real decisions that show that the plaintiffs managed to challenge the deed of gift and return the property:

• Decision No. 2-2012/2019 2-2012/2019~M-1130/2019 M-1130/2019 dated July 25, 2021 in case No. 2-2012/2019;
• Decision No. 2-4339/2019 2-4339/2019~M-2735/2019 M-2735/2019 dated June 24, 2021 in case No. 2-4339/2019;
• Decision No. 2-126/2019 2-129/2019 2-3872/2018 dated June 14, 2021 in case No. 2-126/2019.

After the decisions entered into force, the property was returned to the donors, and ownership was re-registered in their name.

Lawyer's answers to frequently asked questions

Is it possible to donate non-residential commercial premises with utility debts?

Yes. By law, the debt belongs to the person who owned the property during the period of its accumulation.

Is it necessary to obtain the consent of the other owners when donating non-residential premises on the ground floor of an apartment building?

No. Consent is only required when opening establishments. A general meeting is held on the basis of Art. 48 Housing Code of the Russian Federation.

Do I need to have a deed of gift for non-residential premises certified by a notary?

Notarization is required when alienating a share in property rights, making a gift on behalf of a child aged 14 to 18 years, or with the participation of a representative by proxy in the transaction.

Can I donate a share in non-residential premises and what is needed for this?

Yes, donating a share is allowed. It is enough to issue a deed of gift; the consent of other owners is not required.

The non-residential property was purchased during marriage, and now I want to give it to a relative. Do you need your spouse's consent?

Yes, notarial consent will be required, otherwise he will be able to challenge the transaction within 1 year from the moment it became known (Article 35 of the RF IC).

Rules for registering a deed of gift for premises unsuitable for habitation

After the donation is made, the obligation to register the property falls on the recipient of the property.

When drawing up a gift agreement, the following must be taken into account:

1. The agreement is made in writing.
2. The document should be about a free transaction. If counter compensation in any form is provided, then such an agreement may be considered void.
3. Only the actual owner of the property has the right to be a donor. It is not permitted to issue such a document on behalf of the tenant.
4. It is necessary to comply with the rules that are established for real estate transactions.

According to the law, if a non-residential premises has a new owner, the final registration of his rights is possible only if the gift is registered in the Unified State Register of Property Rights to Real Estate. After the donation is made, the obligation to register the property falls on the recipient of the property.

When filling out the document, it must be provided that it must include the following:

1. At the beginning you need to write the name of the document, place (city) and date of its execution.
2. It is necessary to provide information about the parties to the transaction, as well as their tax identification number.
3. The main part of the document begins with a description of the subject of the contract. It is necessary to indicate what kind of real estate is being donated. You need to accurately indicate the address and other characteristics (floor, location). At the same time, there should be no ambiguity about which premises are being transferred. It is important to indicate the value of the property being transferred at the time of concluding this agreement. It must be written not only in numbers, but also in words, in order to eliminate the possibility of errors when reading.
4. Next, you need to determine the procedure in accordance with which the transfer of rights to the new owner will be carried out. At the same time, it must be written that for this it is necessary to register in the Unified Real Estate Register. It is necessary to record the date by which the transfer of the premises will take place in accordance with a properly executed deed.

In the document being drawn up, the previous owner must give guarantees regarding the absence of encumbrances on the subject of the transaction: it must not be under arrest, subject to pledge, not sold to anyone at the moment and there are no other encumbrances on it.

At the end of the document, the parties put the date, signatures and their transcript.

It is important to note in the contract the defects of the premises, which may pose a threat to the life or health of the recipient.

Required documents

To complete a transaction, you must prepare a package of documents

To complete the transaction, you must provide a set of documents in order to formalize the transfer of premises to Rosreestr:

1. The parties must provide passports.
2. In the event that, through a gift, property is transferred between the closest relatives who are in the first degree of kinship, then supporting documents will be required. Marriage or birth certificates may be used for this purpose.
3. It is necessary to provide a registration certificate for non-residential premises.
4. The previous owner has the right to donate only the property for which he is the owner. Therefore, he must provide documents according to which he became the owner of the property. He could buy it, receive it as an inheritance or a gift. When registering, he must provide the relevant documents.
5. If the donor received real estate while married, he must present written permission from his spouse to carry out the transaction.

Parties involved

When making a donation, there are two sides to the transaction:

• a donor who transfers property, an obligation, or a release therefrom;
• donee - the one who is the recipient of the property.

The recipient, if he deems it necessary, has the right to refuse to receive the gift.

Notarization of deed of gift

According to the law, the donation in this case must be carried out in the form of a written agreement. Contacting a notary is not mandatory - however, if the parties wish to formalize the transaction with his help, then they have the right to do so.

Timing and cost

At the request of the parties, the transaction can be executed with the participation of a notary

A ten-day period is provided for registration. The price includes payment of a fee (it is 2,000 rubles for individuals and equal to 22,000 rubles for legal entities). At the request of the parties, the transaction will be carried out with the participation of a notary. In this case, the cost of registration of its services will be added.

If during the transaction you used the services of a professional lawyer or intermediary, then their payment will also be included in the cost of the transaction.

Registration of the gift agreement in Rosreestr

To register ownership of the received premises, it is necessary to register in the Unified Register of Real Estate Rights. To do this you need to do the following.

Both parties to the transaction must come together to the local branch of Rosreestr or MFC, providing documents confirming the transaction. The agreement must be submitted in three copies.

Before applying for registration, you must pay a state fee. For citizens it is equal to 2,000 rubles, and for organizations it is 22,000 rubles. The recipient must pay this amount.

The act of acceptance and transfer of premises upon donation

The deed of acceptance and transfer is not mandatory, but an important document when concluding a gift agreement

This document must be an attachment to the deed of gift. The latter states the obligation to give, and the deed is the actual evidence that the gift has taken place.

This document is not mandatory, but will help make the transaction more strict. In it, in particular, it is necessary to indicate that the premises have been transferred and that the parties no longer have any claims against each other.