How to cancel a deed of gift by agreement of the parties, through the court, and is it even possible to terminate a donation agreement for an apartment after registration?

In legal practice, the term “termination” is widely used in relation to gift agreements. Although in civil legislation there is no concept of “termination of a gift agreement” as such.

Using the specified terminology, they imply either the cancellation of the donation or the recognition of the contract as invalid . A transaction under which property is donated can be terminated both before it is transferred into ownership by the donee, and after such transfer, but only on legal grounds. Termination of a gift agreement can be carried out at the initiative of the donor, the donee, as well as interested parties.

Is it possible to terminate a gift agreement?

You can terminate the gift agreement (hereinafter referred to as the DD), guided by the provisions of Art. 578 and 450 of the Civil Code of the Russian Federation.

The bases are divided into three types:

• general: failure of one of the parties to fulfill obligations, significant violation of the terms of the transaction, etc.;
• at the initiative of the donee: voluntary refusal of a gift, causing significant damage to the donee as a result of the transaction, etc.;
• at the request of the donor: commission by the donee of a crime against the life and health of the donor or close relatives;
• at the initiative of a third party with the participation of the donor in the bankruptcy procedure.

If the parties manage to achieve a peaceful settlement of the issue, it is enough to draw up an additional agreement to the main agreement. If disputes arise, you must go to court.

According to the Civil Code of the Russian Federation, donation is made orally, with the exception of cases when the donor is a legal entity and the value of the gift exceeds 3,000 rubles, or when real estate is transferred as a gift. A written deed of gift will be required here.

Let us consider the conditions and features of termination of oral and written DD in detail.

Termination of an oral gift agreement

During an oral gift, the donor gives the recipient a gift: a car, money, jewelry, valuables. The moment of conclusion of the transaction is the time of transfer.

You can terminate the oral contract immediately after receiving the valuables by refusing them, or returning them after some time. A written refusal by the donee of a gift made orally is not required.

Example:

The man gave the woman a car, information about the new owner was entered into the title independently. The DD was not drawn up in writing. To return the gift, she agreed with the donor and re-registered the car in his name, then he re-registered it.

About the opportunity

What is donation? As we have already said, this is a fairly common procedure that is carried out in our country.

It allows two entities to carry out the procedure of donation from one person to another.

That is, parties take part in it, which means it automatically becomes two-sided .

The essence of the procedure is that one person, completely unaware of any material gain from his actions, transfers real estate into the ownership of another free of charge .

The second participant has the right to accept or refuse the gift. If the parties have complied with all legal grounds and also completed the procedure for registering the transaction, it has taken place.

In general, the procedure is timeless, that is, once completed, the law protects the gift from retroactive effect.

However, the legislator also allows for situations in which a transaction will be canceled due to incorrect behavior of one of the participants or a violation of the law . More on this in other paragraphs.

Find out on our website about the specifics of donating housing between close relatives, in particular how to draw up a deed of gift and what documents are required to complete the transaction. A sample agreement for donating an apartment between close relatives is available for download here.

Conditions for termination of a written gift agreement

If the DD is drawn up in writing, an additional agreement will have to be drawn up for cancellation.

If one of the parties refuses a peaceful settlement, the other has the right to go to court if there are grounds.

General grounds

The general grounds are provided for by the Civil Code of the Russian Federation. According to Art. 572 of the Civil Code of the Russian Federation, some transactions may be recognized as invalid, imaginary, feigned or void in accordance with Art. 166, art. 167 Civil Code of the Russian Federation:

1. An imaginary transaction concluded with the aim of creating the appearance of a conclusion, but not entailing legal consequences, or a feigned one concluded to cover up another transaction. Recognized as void (Article 170 of the Civil Code of the Russian Federation).
2. Under a DD, the donor transfers property to the other party after his death. The deed of gift is invalidated; the rules of wills apply here.
3. Making a donation in an improper form. According to Art. 574 of the Civil Code of the Russian Federation, a gift is transferred orally, with the exception of donations of real estate or the value of a gift from an enterprise exceeding 3,000 rubles. The transaction is declared invalid, because violates the law.

Recognizing a DD as invalid is also relevant for situations where donation is prohibited (Article 575 of the Civil Code of the Russian Federation):

• on behalf of incapacitated citizens and persons under 14 years of age;
• donation to employees of educational, social and medical institutions on behalf of citizens who are there for treatment or maintenance;
• between enterprises conducting commercial activities;
• if the donee is an employee of a state, municipal institution or bank, and the donation is related to his official powers.

In the above situations, the legal representatives of the child or third parties who discover the violation have the right to demand cancellation of the DD. You can achieve what you want only through the courts.

At the initiative of the donor

The donor has the right to initiate termination of the DD if one of several grounds exists:

1. Refusal to fulfill the contract of promise of donation in the future. If after signing the DD your property, financial or health situation has worsened; The marital status has changed, and the transaction entails a significant decrease in the donor’s standard of living; he has the right to refuse to fulfill it (Article 577 of the Civil Code of the Russian Federation).
2. The donation was made on behalf of a citizen who does not have the right to do so: an incapacitated, young child. Also the basis is the lack of ownership rights of the donor to the gift.
3. Commitment by the donee of a crime against the life and health of the donor or his close relatives.
4. Signing of a deed of gift by the donor under the influence of psychological or physical violence on the part of the donee or a third party.
5. Poor attitude of the recipient towards the gift, if this entails the risk of its loss, while the gift represents a personal non-property interest for the donor.
6. The death of the donee before the donor, if this is provided for by the terms of the DD.

Another reason for canceling a transaction is the destruction of the gift, forced seizure by order of the authorities, or the use of restrictive measures in the form of a ban on registration actions.

Example:

The citizen drew up a written agreement promising to donate a car. The vehicle must become the property of the donee one month after signing. During this time, bailiffs, as part of the initiated enforcement proceedings for the debts of the donor to the state, impose a ban on registration actions in relation to the vehicle - gift. You can give it as a gift, but the recipient will not be able to register the car. The deal is canceled by mutual agreement.

At the initiative of the donee

Based on Art. 573 of the Civil Code of the Russian Federation, the recipient has the right to refuse the gift before the actual transfer. If the DD is drawn up in writing, the refusal is also drawn up in writing. To cancel an oral transaction, it is enough to return the gift back to the giver.

Important! If the DD is concluded in writing, the donor has the right to demand compensation for damage caused by the refusal. It is compensated by the donee voluntarily or through the court.

Another basis for challenging a deed of gift is the discovery by the recipient of defects in the gift if they caused harm to his life or property (Article 580 of the Civil Code of the Russian Federation). At the same time, it is important that the donor does not notify about them in advance and does not reflect the shortcomings of the donated item in the DD. Along with the termination of the contract, the donee has the right to demand compensation for damage caused.

At the initiative of a third party

The donor's creditors can act as a third party to terminate the DD if he is involved in bankruptcy proceedings and the agreement on the alienation of property was drawn up no more than six months before applying to the arbitration court.

The above measure is due to the fact that many unscrupulous citizens, trying to get rid of debts and retain property, transfer it to relatives via deed of gift, while the deed of gift is recognized as imaginary. In fact, the donors continue to manage the property.

Example:

The man took out several loans totaling RUB 3,000,000. Realizing that he could not cope with the payments, he issued a DD for his son, transferring two apartments to him. In fact, he continued to use them: he lived in one, and rented out the other under a rental agreement. But he did not take into account that the court, at the initiative of the creditor, has the right to cancel all transactions completed over the past six months.

A bank representative, having learned that 2 months before applying to the arbitration court, the debtor issued a deed of gift for his son, demanded that it be cancelled. The application was granted, one apartment was included in the bankruptcy estate to satisfy the demands of creditors - to pay off debts.

Representatives of the guardianship authorities or the prosecutor's office have the right to act as third parties if they learn about the illegal alienation of the property of a young child or an incapacitated person. Such transactions are also cancelled: according to Art. 575 of the Civil Code of the Russian Federation, donations on behalf of children under 14 years of age or incapacitated citizens are prohibited.

Third parties should also be understood as heirs who have the right to demand the cancellation of the DD through the court if the donor died through the fault of the donee, the guilt was proven and the verdict entered into legal force (Clause 1 of Article 578 of the Civil Code of the Russian Federation). To do this, you need to take a certified copy of the verdict and go to court, but the case of canceling the deed of gift will already be considered in civil proceedings. An alternative option is to submit a request to annul the DD when considering a criminal case.

According to Art. 35 of the RF IC, the donor’s spouse also has the right to recognize the DD as invalid if the donated property was in common ownership and was alienated without his consent.

Briefly: the grounds for termination of a DD can be general and special. The deed of gift is canceled at the initiative of the donor, the donee or a third party - a creditor, a representative of the guardianship or prosecutor's office, or the donor's heir. Termination is possible voluntarily or judicially.

Is it possible and how to challenge a gift agreement?

What is more profitable: an exchange agreement or a gift agreement?

Statute of limitations

Art. 181 of the Civil Code of the Russian Federation establishes limitation periods for challenging different types of transactions:

1. Void transactions are recognized as invalid within three years from the date of entry into force of the DD. If a claim is brought by a third party, the period begins from the day when he learned about the beginning of the execution of a void transaction.
2. Contestable transactions are declared invalid within 1 year from the moment when the plaintiff learned about the circumstances - the grounds for challenging, or within 1 year from the moment of the cessation of violent actions, under the influence of which the DD was signed.

Note! If the deadline is missed for valid reasons, it can be restored through the court (Article 205 of the Civil Code of the Russian Federation). Restoring the statute of limitations is possible if the plaintiff is ill, is in a helpless state, is illiterate, is forced to be on a business trip in another city, etc. It is important that these reasons take place within the last six months of the statute of limitations.

Do I need to contact a notary to terminate the contract?

An additional agreement on the termination of a DD requires notarization if the deed of gift itself was certified by a notary. If his signature is not on the main agreement, it is not necessary to certify the agreement.

The cost of a notarized additional agreement to a contract certified without fail is 200 rubles. (Clause 12, Clause 1, Article 333.24 of the Tax Code of the Russian Federation). If the DD was not required to be certified, but the parties contacted a notary, certifying the agreement will cost 500 rubles. (Article 22.1 “Fundamentals of legislation on notaries”).

Legal advice: if by law it is not necessary to apply for a notarization of an additional agreement on the termination of a DD, it is still better to obtain a notary’s signature. This will avoid possible problems in the future, because... the notary confirms that the parties signed the document voluntarily and were in a capable state.

If the donor goes to court to challenge it, it is not necessary to visit a notary - he is only needed to voluntarily cancel the transaction. However, during legal proceedings, the parties have the right to enter into a settlement agreement at any stage; it is certified by the judge’s signature and seal.

The legislative framework

What laws govern this? This very concept is contained in the Civil Code, which is quite natural for this legislative act, since it is he who is responsible for the description and regulation of transactions carried out on the territory of our country.

about donation and the nuances of the transaction in Chapter 32, namely, in Article 572.

But we are not interested in the system of carrying out the procedure, but in the situations in which it will be terminated . This issue is also regulated by the Civil Code, Article 578. Learn about the nuances of donating a share of an apartment to a minor child, in particular how to draw up an agreement for donating a share of an apartment to children, from our articles.

How to terminate a real estate gift agreement voluntarily: step-by-step instructions

The termination procedure consists of several stages:

1. One party notifies the other of its intention to cancel the DD. This can be done orally or in writing.
2. The parties come to an agreement and draw up an additional agreement to the contract.
3. If the deed of gift is notarized, the additional agreement is signed and certified by a notary. The parties distribute the costs of paying the duty or tariff independently.
4. If the transfer of ownership of real estate under the DD is registered in Rosreestr, the additional agreement is submitted there.
5. After re-registration in Rosreestr, the donor again becomes the owner.

Let us consider the features of the peace agreement in detail.

Step 1: execution of an additional agreement

The donor or recipient has the right to initiate termination of the DD if the grounds listed above exist. To do this, it is necessary to agree with the other party, because her consent will be required. Without mutual consent, the deed of gift can only be canceled through the court.

Having reached a consensus, the parties have the right to draw up an additional agreement to the main agreement and sign it immediately, or apply for certification from a notary. In the latter case, the document must be signed at a notary office.

Note! You can order the execution of an additional agreement from a notary, but this is paid separately from the state fee or notary fee. The cost of such a service is set by regional notary chambers.

Sample termination agreement

The additional agreement to the DD must contain complete data about the transaction:

• Full name, registration and residence addresses of the parties, passport details;
• date, time, place of conclusion of the DD, its number;
• information about the subject of the donation: real estate, car, etc.

At the end the signatures of the parties are placed. The notary also signs and puts a stamp.

Sample agreement on termination of a gift agreement: alt: Agreement on termination of a gift agreement (deed of gift)

Documentation

To fill out the additional agreement you will need:

• passports;
• main DD;
• real estate documents: extract from the Unified State Register of Real Estate, cadastral passport, etc.;
• documents for a car or other donated item: STS, PTS, etc.

In general, the list of documents is the same as when drawing up a deed of gift.

Step 2: visit a notary

If the DD is notarized or the parties want to certify the additional agreement separately, you need to come to the notary with it, or order registration there. You must have the above list of documentation with you.

Step 3: registration of termination

If the DD is registered in Rosreestr, termination is also subject to state registration. Documents can be submitted directly to the department or through the MFC. Both parties must appear.

State duty

For registering the transfer of ownership of real estate, a fee of 2,000 rubles is paid.

Where to start, where to turn?

First of all, you must obtain permission to return the transaction to normal. How you will reach a consensus is unknown, the main thing is that the parties, by a court decision or their own conviction, must decide to take this step.

Where do they apply, where to apply? Next, a reverse agreement is drawn up , in which the party who was recently the donee donates this property to the other party.

This transaction is formalized first at the notary, then at the Rosreestr. Filling it out with a notary is not a mandatory step .

How to terminate a deed of gift through the court?

It is possible to cancel a DD in court if a voluntary settlement of the issue fails, or on the grounds provided for in Art. 578 Civil Code of the Russian Federation.

What should be done:

1. File a claim.
2. File the claim and documents supporting the grounds with the district court at the defendant’s place of residence.
3. Receive a determination on acceptance of materials for production within 5 days after filing the claim.
4. Arrive at the scheduled time for the preliminary meeting. During the hearing, the judge has the right to ask questions and request additional materials on the case.
5. Attend one or more hearings in the main trial. At this time, the opinions of the parties are heard and evidence is considered.
6. Wait for the court decision.
7. Receive a certified copy of the decision one month after it is made in final form (Article 209 of the Civil Code of the Russian Federation).

If real estate was alienated under the DD, you need to come with a decision to Rosreestr to re-register ownership when satisfying the claims. The defendant's visit is not necessary for this. If the requirements are not satisfied, the decision can be appealed within 1 month, because before entering into force.

Documentation

For legal proceedings, the main and additional lists of documents are provided.

By main we mean:

• statement of claim;
• plaintiff's passport;
• disputed DD;
• receipt of payment of state duty.

As additional documents, evidence is provided confirming the commission of illegal actions by the donee, which is the basis for canceling the DD:

• medical certificates confirming the beating of the donor;
• certificates from the police and a court verdict holding the recipient accountable for assault or other crime against the donor;
• expert opinions.

The plaintiff has the right to request that witnesses be called to testify.

Legal advice: it is better to reflect the request in the statement of claim - timely provision of all documents and evidence can reduce the duration of the proceedings.

Sample statement of claim

The statement of claim to declare the DD invalid must contain the following information:

• name and address of the court;
• information about the plaintiff and defendant;
• date, time, number, place of registration of the deed of gift;
• address and full name a notary, if the DD is certified;
• grounds for declaring the DD invalid;
• references to current legislation;
• request to cancel the deed of gift based on the evidence presented;
• requirement for recognition of the plaintiff's property rights;
• plaintiff's signature.

Important! If a legal representative is acting on behalf of the plaintiff, a notarized power of attorney will be required. Its details are indicated in the application.

Sample statement of claim for invalidation of a gift agreement: alt: Statement of claim for invalidation of a gift agreement

State duty

When challenging a deed of gift in court, a fee is paid for a claim of a property nature (Article 333.19 of the Tax Code of the Russian Federation).

The size depends on the value of the gift:

• up to 20 thousand rubles. – 4%, from 400 rub.
• from 20 to 100 thousand rubles. – 3% + 800 rub.;
• 20-100 thousand rubles. – 2% + 3,200 rub.;
• 200 thousand - 1 million rubles. – 1% + 5,200 rub.;
• from 1 million rub. – 0.5% + 13,200, up to 60,000 rub.

Example of calculating state duty:

The woman filed a lawsuit to challenge the deed of gift for the apartment, the cadastral value is 3,000,000 rubles. How much will the state duty cost:

3,000,000 x 0.5% = 15,000 rubles.

15,000 + 13,200 = 28,200 rub. – total amount.

Important! Based on Art. 98 of the Civil Code of the Russian Federation, the plaintiff has the right to demand reimbursement of legal costs from the defendant when the claim is satisfied. Thanks to this, you can partially or fully return the paid state duty.

Drawing up a settlement agreement

The agreement between the plaintiff and the defendant does not necessarily need to be in writing. It may well be stated orally at a court hearing. In this case, the will of the parties will be included in the protocol, and the parties to the case will be asked to sign it.

If the parties decide to formalize the agreement in writing, it will be attached to the case materials.

The structure of the settlement agreement is extremely simple and generally repeats the claims. Thus, the agreement must contain the following structural elements:

1. name of the court hearing the case;
2. Full name of the plaintiff and full name of the defendant, indicating their procedural status;
3. a request to the court to approve the settlement agreement and terminate the proceedings;
4. signatures of the parties and date of conclusion of the agreement.

Arbitrage practice

If the plaintiffs provide sufficient evidence, the courts satisfy the demands to recognize the DD as invalid and apply the consequences of the invalidity of the transaction - cancellation of the deed of gift and return of ownership.

Several solutions illustrate this:

• Decision No. 2-402/2019 2-402/2019~M-331/2019 M-331/2019 dated June 25, 2021 in case No. 2-402/2019;
• Decision No. 2-44/2019 2-500/2018 dated June 28, 2021 in case No. 2-44/2019;
• Decision No. 2-262/2019 2-262/2019~M-97/2019 M-97/2019 dated June 27, 2019 in case No. 2-262/2019.

Another common ground for applying to court to cancel a DD is the commission of a crime against the health and life of the donor. In such a situation, he himself, his representative, and, in the event of death, his heirs have the right to apply.

No guarantees

But first, you should pay attention to the fact that the process of canceling or annulment of existing deeds of gift is not always possible. And even if the donor has grounds for this, his decision can be challenged by the donee in court.

That is why it is important to understand that a gift agreement does not provide any guarantees. It can be canceled or annulled, but at the same time it is possible to challenge the court's decision. Experts recommend thinking carefully before giving your property to someone. After all, the procedure for invalidating a transaction will require significant costs.

Video: When can you terminate a gift agreement?

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