Is it possible to challenge a deed of gift for an apartment after the death of the donor by children in 2021

Author

Sergey Ershov

Registration number in the register of lawyers of St. Petersburg – 78/5563

After the death of your father, prepare to enter into an inheritance. But it turns out that you will not receive housing, because several years ago he gave it to his friend under a deed of gift. In this article I will tell you whether it is possible to challenge a deed of gift for an apartment after the death of the donor. Let's consider who can invalidate a transaction and on what grounds.

What is a deed of gift and what are the requirements for it?

A gift agreement (deed of gift) is a transaction under the terms of which the donor transfers or undertakes to transfer to the donee an item belonging to him, a property right or release from a property obligation.

Important terms of the transaction are:

• Voluntariness is the mutual agreement of the parties to all the terms of the transaction.
• Gratuitousness - the donee must not transfer any property or money in exchange for the donated apartment. If such a condition exists, the transaction is void.
• An exact indication of the subject of the donation is clause 2 of Art. 572 of the Civil Code of the Russian Federation.
• Compliance with writing - when donating real estate. And when donating movable property - if there is a condition on the donation in the future or in cases where the donor is a legal entity and the value of the gift is more than 3 thousand rubles.
• State registration of a transaction - when its subject is real estate.
• Notarization - when transferring a share in property under a gift agreement.

The subject of the transaction can be an apartment, house, land, car, forgiveness of the donee’s debt or payment of his debt to third parties, etc.

The deed of gift must be written in business language. The document must indicate the characteristics of the object of the gift and its detailed description. The presence of incomprehensible phrases, blots, and corrections is not allowed. Failure to comply with these conditions will not cancel the deed of gift, but will serve as an additional fact for recognizing the act of donation as invalid.

The deed of gift can be:

1. Real.
2. Consensual.
3. In the form of a donation.

In order for rights and obligations to arise under a real transaction, in addition to the agreement of the parties, it is necessary to perform a certain action. For example, handing over keys to the donee. Such an agreement is executed immediately.

Consensual transaction - rights and obligations under which arise after reaching an agreement, and a legal action is performed in pursuance of an already concluded agreement. For example, a deed of gift containing a condition for donating an apartment in the future. Such an agreement is executed upon the arrival of a certain moment specified in the deed of gift.

In addition, a deed of gift can be made as a donation - Art. 582 of the Civil Code of the Russian Federation. When the object of the gift is transferred for general beneficial purposes.

Concept of donation

What is a gift agreement?

It is legally defined that a gift agreement is a gratuitous transaction in which one party, the donor, gratuitously transfers or undertakes to transfer an item of ownership or property right to the other party, the donee.

As we can see, one of the significant features of the gift agreement is its gratuitous nature , that is, the complete absence of consideration. The presence of any given provision in the form of a thing or obligation indicates the absence of a donation.

What can be the subject of a donation:

• The property of the donor, which means any thing, including movable and immovable property, securities, money, that is, any property that has value.
• A property right (claim) against the donor himself or a third party for any obligation (with the exception of rights inextricably linked with the personality of the creditor, the assignment of which to another person is not permitted, for example, a claim for the payment of alimony)
• Release of the donee from a property obligation to the donor or a third party (for example, forgiveness of a debt).

By concluding a gift transaction, the donor shows the will to alienate property free of charge, and the donee – the will to accept the gift.

The moment of concluding a gift transaction is the moment of transfer of the gift to the donee (Articles 224, 433, 574 of the Civil Code of the Russian Federation).

Donation agreements concluded after 03/01/2013 do not require state registration, but the transfer of ownership of the donated property to the donee is subject to state registration.
Registration of the transfer of ownership of a gift to the donee is not possible without a corresponding application from the donor. Attention: Donation after the death of the donor is unacceptable .
One of the important features of a gift agreement is that it can only be completed during the life of the donor. A promise to make a gift after the death of the donor is void.

Read more about donation here.

Get a free consultation with a gift lawyer. Tel.+7 (812) 989-47-47 Telephone consultation

Is a deed of gift valid after the death of the donor and can it be challenged?

When an agreement was concluded between the donor and the donee with the condition of donation in the future, then after the death of the former, the obligation to fulfill the transaction rests with his heirs - Art. 581 Civil Code of the Russian Federation. This means that the successors are obliged to transfer the property to the donee in accordance with the terms of the deed of gift.

Such property is not included in the estate and is not subject to distribution among heirs called to inherit. The donee has the right to demand the transfer to him of the gift specified in the contract of promise of gift, in accordance with clause 2 of Art. 581 Civil Code of the Russian Federation. If the successors interfere with this, they will have to go to court.

Important! The exception is cases when, under the terms of the contract, the successors are not obliged to transfer the gift to the donee after the death of the donor - Art. 581 Civil Code of the Russian Federation.

If there are appropriate grounds, the heirs can challenge the act of donation in court. If their demands are met, the object of the gift will be included in the inheritance mass.

If there was a real contract, i.e. without a promise of donation, it begins to be fulfilled from the moment of signing. When the donee has already taken ownership of the property, returning it after the death of the donor will be problematic.

When making a donation, the donor has the right, and in the case of donations to citizens, is obliged to establish a requirement that the received item be used for a specific purpose. Failure of the recipient of the property to fulfill this condition gives the successors of the donor the right to demand cancellation of the transaction - Art. 582 of the Civil Code of the Russian Federation.

But termination of the gift agreement after the death of the donor is impossible, since this requires the consent of both parties.

Grounds for which donation is not allowed

Federal Law No. 280-FZ dated December 25, 2008 prescribes that an apartment cannot be given as a gift:

1. On behalf of minor children and incapacitated citizens, as well as their guardians and representatives.
2. Employees of all kinds of organizations providing assistance to the population - social, medical and others, those citizens who applied there personally, and members of their families (According to the Federal Law of April 24, 2008 N 49-FZ).
3. Citizens who are on the staff of civil servants, municipal employees or employees of the Bank of Russia for the performance of their work (clause 3 of the law of December 25, 2008 N 280-FZ).
4. Within the framework of relationships between commercial institutions.

Reference! Any of these grounds is a sufficient reason for it to be impossible to conclude an agreement, and if it was somehow formalized, it was immediately declared invalid and the property transferred back to the donor.

Read more about the grounds for canceling an apartment donation agreement here.

Is a deed of gift for a house or apartment contested after the death of the donor?

The basis for challenging a deed of gift for an apartment or house after the death of the donor is most often the lack of consent of the spouse or all owners to complete the transaction.
The fact is that when an apartment/house was purchased during marriage, they are jointly acquired property - Art. 35 IC RF. Accordingly, if one of the spouses wishes to give it as a gift, he must obtain the notarized consent of the second spouse to complete the transaction. Check the contract: there is no such condition - you can challenge it.

Important! The requirement does not apply to spouses between whom a marriage contract has been concluded. According to the terms of such a document, one of the spouses can dispose of property without the consent of the other.

The transaction can be challenged if the apartment/house had several owners:

• But the property was transferred under a gift agreement on behalf of only one of them - without obtaining the consent of all owners.
• Or the share of the person wishing to transfer it as a gift has not been allocated, and the transaction has not been certified by a notary.

A deed of gift for a house is drawn up together with the land plot on which it is located - Art. 35 of the Land Code of the Russian Federation. Otherwise, the transaction can be challenged.

Grounds for challenging a deed of gift in 2021

So, the reasons for challenging the donated apartment are:

• The contract was not drawn up or executed in accordance with the law or contains errors (Civil Code of the Russian Federation, Article 168).

The procedure or form for signing the deed of gift was violated, the apartment was not registered after signing the agreement, etc.

• The donating party at the time of concluding the transaction was not legally capable (Civil Code of the Russian Federation, Articles 177 and 171).

According to these articles of the Civil Code, a contract can be challenged if there is evidence of the donor’s physical or mental incapacity, as well as other similar situations in which the owner could not clearly account for his own actions (for example, there was alcohol or drug intoxication).

• If the donee intentionally caused physical harm to the donor or his relatives (for example, a citizen committed an attempt on life). This paragraph is regulated by Part 1 of Article 578 of the Civil Code of the Russian Federation.
• If the deed of gift for the apartment was concluded to conceal some other transaction (Civil Code of the Russian Federation, Article 170).

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Dacha donation agreement - 2021 form

Imaginary or so-called sham transactions are carried out, as a rule, to cover up other transactions. For example, in order to avoid paying taxes, the parties to a real estate purchase and sale transaction decide to formalize a gift transaction rather than a corresponding transaction.

• If the signing of the deed of gift was preceded by threats or similar pressure was exerted on him, as a result of which the document was signed actually against the will of the donor.
• If the donor was misled or did not fully account for his actions and their consequences.

For example, the grandmother was not completely aware of the fact that the apartment was being transferred for permanent use or if she was lied to about the consequences of such a transaction.

• If the donor has not received permission from his official spouse to enter into a donation transaction (only if the apartment acts as part of jointly acquired property).

This document must be certified by a notary.

• If the donee treats the object of the transaction improperly (Civil Code of the Russian Federation, Part 2 of Article 578).

The actions of the new apartment owner may be of a different nature, however, they should not jeopardize the condition of the property. For example, the new owner does not solve the problem with poorly installed wiring, which results in fires.

• After the death of the donee (Civil Code of the Russian Federation, part 4 of article 578).

It is worth noting that this condition must be specified when drawing up the gift agreement. Thus, the former owner will not be able to simply return it to himself after the death of the donee. To do this, he will first need to demand a reverse transfer of ownership.

In what cases can you challenge a deed of gift for an apartment or house after the death of the donor?

In accordance with Art. 166 of the Civil Code of the Russian Federation, transactions can be void and voidable.

Void transactions are invalid regardless of the court decision. A gift agreement is void if at least one of the following grounds exists:

• An imaginary transaction is one made for show when the parties have no intention of creating legal consequences corresponding to it. For example, donating an apartment in order to avoid selling it to pay off the donor’s loan debts.
• A sham transaction - when a donation covers up another transaction, for example, an annuity or purchase and sale agreement - Art. 168 Civil Code of the Russian Federation.
• The donor was deprived of legal capacity or limited in it at the time of conclusion of the contract - Art. 171, 176 of the Civil Code of the Russian Federation.
• The transaction was made by a minor - Art. 172 Civil Code of the Russian Federation, art. 175 of the Civil Code of the Russian Federation.
• The agreement was signed by a person who does not have the appropriate authority - the power of attorney must indicate the authority to conclude a gift agreement, the thing being donated and the donee. Otherwise, the power of attorney is void - Art. 576 of the Civil Code of the Russian Federation.
• Failure to comply with the conditions of mandatory written form - Art. 574 Civil Code of the Russian Federation.

Voidable transactions are declared invalid only by a court decision. A deed of gift for an apartment after the death of the donor may be declared invalid for the following reasons:

• The donor did not have the necessary documents for the apartment or they were declared invalid. For example, an apartment was donated before the donor executed a purchase and sale agreement.
• The disposal of the property transferred as a gift was prohibited or limited - the prohibition must follow from the law or be established by the court - Art. 174.1 of the Civil Code of the Russian Federation. For example, during the period of bankruptcy, a citizen is prohibited from making transactions with his property.
• Lack of consent of the spouse to donate the apartment - if it was acquired during the marriage (Article 35 of the RF IC).
• The donor did not understand the significance of his actions - for example, due to the presence of a disease that affected his ability to understand the consequences of his actions - Art. 177 Civil Code of the Russian Federation.
• The deed of gift was drawn up under the influence of threats, violence or deception - Art. 179 of the Civil Code of the Russian Federation.
• The donor died due to the fault of the recipient of the gift - Art. 578 Civil Code of the Russian Federation.
• The transaction was concluded in violation of the conditions for limiting donation - for example, when the apartment was jointly owned by several persons, but their consent to enter into an agreement was not obtained - Art. 576 of the Civil Code of the Russian Federation.
• The donee is a person who is prohibited from accepting a gift - employees of medical/educational organizations where the donor was treated or maintained, civil servants - Art. 575 of the Civil Code of the Russian Federation. The exception is cases when the value of the gift does not exceed 3 thousand rubles.
• The donation was made under the influence of error - Art. 178 Civil Code of the Russian Federation. For example, a person did not understand that after drawing up a deed of gift for an apartment, he would not receive a material reward in return.
• The transaction contains additional conditions - for example, a condition on the transfer of the apartment to the donee only after the death of the donor or the provision of material compensation to the donee in exchange for the donated property.

See also:

Is it possible to challenge a deed of gift in 2021 - detailed instructions

Is it possible to challenge a gift agreement if the donor died due to the fault of the donee?

The applicant must provide a court decision by which the donee is found guilty of the death of the owner of the property
. According to Art. 578 of the Civil Code of the Russian Federation, in the event of the death of the donor due to the fault of the recipient of the gift, the heirs of the first have the right to challenge the transaction. To do this, they need to go to court with a statement of claim to invalidate the gift agreement and return the donated item.

The basis for cancellation is the court's conviction against the donee that has entered into legal force. In the absence of such a document, the recipient of the gift is not considered guilty.

If the court satisfies the heirs' claims, the property transferred as a gift is included in the estate.

Accordingly, it is subject to distribution among the heirs of the corresponding queue. For example, between children or parents of the deceased. Or the donor has drawn up a will, which indicates those persons who will receive the property after the death of the testator.

What is a deed of gift?

A gift agreement is a document confirming the will of the donor who wishes to transfer for use free of charge any thing or real estate to the donee.

The legislative features of donation are regulated by the Civil Code of the Russian Federation:

Let's consider a standard example of the entry into force of a deed of gift:

Zabrodin M.V. I have three children, and I don’t communicate with two of them. He decided to give his apartment to his son, who takes care of him, so that it would not go to the rest of his children. The parties agreed on the transaction and signed the agreement at the notary, then the donee visited the MFC and submitted documents to register the property.

Expert commentary

Shadrin Alexey

Lawyer

According to Part 8 of Art. 2 Federal Law No. 302-FZ dated December 30, 2012, there is no need to register the gift agreement in Rosreestr. After signing with a notary, you should immediately start registering the donated property as your property.

There is another example when a deed of gift is not canceled after the death of the donor:

Melnikov M.E. I drew up a gift agreement with my son, according to which the transfer of ownership of housing is carried out. In addition to the son, the donor has a daughter who is not involved in the transaction. Melnikov M.E. an agreement is drawn up with the son at the notary and subsequently dies, while the donee has not yet registered the ownership. In this case, the transaction must be completed on the basis of Part 2 of Art. 581 of the Civil Code of the Russian Federation, which states that a promise to donate an item to another person must be fulfilled by the heirs in the event of the death of the testator. The rules of inheritance in relation to the apartment do not apply in this case.

Thus, the deed of gift continues to be valid after the death of the donor if it has already been drawn up and certified by a notary, but the donee did not have time to register the subject of the gift in his name.

You can give gifts to both close relatives and friends: the circle of people to whom the gift is allowed is not limited by law. It is for the above reason that citizens usually need to challenge the gift agreement. Let's look at a detailed example:

Alyabyev O.N. issued a deed of gift for the apartment in the name of his nephew S.N. Khoroshunov, and died a few months later. He left behind a daughter, who, as a result of drawing up a donation agreement for another person, was left without property that could pass to her by inheritance. She decided to challenge the previously concluded deal in court, but her claim was denied: a gift agreement is a direct expression of the will of the donor, which is not subject to challenge.

The exception is situations in which the rights of the donor's relatives to property were significantly violated, or it was established that gross errors were made during the transaction.

Is it possible to cancel a deed of gift?

In relation to gift agreements, civil legislation contains such a concept as cancellation of donation - Art. 578 Civil Code of the Russian Federation. During the life of the donor, it is possible to cancel the transaction practically if any of the listed grounds are present, since the initiative for cancellation rests with him.

After his death, his successors have the opportunity to cancel the deal only in certain cases:

• The death of the donor occurred as a result of the intentional actions of the donee.
• Donated property is not used for its intended purpose - Art. 582 of the Civil Code of the Russian Federation.
• Absence of a court decision on the use of the donated item for another purpose - i.e. It is no longer possible to obtain the consent of the donor due to his death.

But relatives will not be able to cancel the will of the donor due to the threat of irretrievable loss of the donated item, which was of great non-property value to him.

See also:

How to cancel a gift agreement in 2021 - detailed description and instructions

How can a donor cancel a deed of gift?

According to Art. 578 of the Civil Code of the Russian Federation and other regulatory legal acts, cancellation of a gift by the donor is possible in the following cases:

• If he discovered that as a result of the transaction his financial or property situation was significantly worsened.
• After registering the property, the donee began to treat the donor poorly: he began to insult and humiliate him, cause bodily harm, and in general his actions pose a threat to the life of the former owner of the apartment.
• If the agreement specified the possibility of returning the transferred property in the event of the death of the donee before the donor, the latter may cancel the transaction. If there is no such clause, the home passes to the relatives of the donee through inheritance.
• After the donation, the condition of the property has deteriorated significantly and there is a threat of its complete loss.

In all cases, evidence will be needed in court. For example, when committing violent acts, the recipient must film the beating and write a statement to the police. If there is a possibility of destruction of the apartment, neighbors on the site should be brought in as witnesses and photographs should be provided.

Who can challenge a deed of gift for an apartment?

The following may challenge a gift agreement after the death of the donor:

• The donee.
• Heirs of the deceased.
• Mortgagee or creditors - when the apartment, at the time of the transaction, was pledged, or the donor, due to failure to fulfill monetary obligations to third parties, incurred a large amount of debt on the loan.

Can the donee refuse the gift after the death of the donor?

The legislation enshrines the right of the recipient to refuse the gift - Art. 573 Civil Code of the Russian Federation. However, the mandatory conditions for such a refusal are:

• Commitment before the gift is given.
• Execution in the same form as the gift agreement - for example, if the agreement was drawn up in writing and notarized, the refusal must be made in the same form.

Based on the above requirements, after the death of a citizen it will be impossible to refuse the gift. But the donee has the right to challenge the transaction - if there are grounds provided by law.

Which of the donor's heirs can challenge the deed of gift after his death?

When the donor is alive, his relatives can challenge the deed of gift only in certain cases. Unlike challenging a transaction during the life of the donor, after his death the heirs have the opportunity to challenge the contract on almost any of the grounds listed above.

Most often, close relatives go to court with a demand to invalidate the expression of will. Namely, the heirs who are included in the first line of inheritance. The reason is the fact that if the claim is satisfied, the donated apartment or house will be included in the inheritance and will go to the first-priority successors.

In accordance with Art. 1142 of the Civil Code of the Russian Federation, first of all, children, including adopted children, spouse and parents of the deceased, inherit. But this does not mean that citizens who are heirs of subsequent orders cannot go to court.

If there are grounds and appropriate evidence, the deed of gift may be challenged by a brother, sister, grandfather, grandmother, grandchildren or other persons.

Citizens who are obligatory heirs in accordance with Art. 1149 of the Civil Code of the Russian Federation. They may not be relatives of the deceased, but they have the right to an obligatory share in his property, and accordingly are interested in the cancellation of the deed of gift.

For example. The donor's disabled partner, who lived with him for more than 1 year before his death and was dependent on him, has the right to go to court and challenge the deed of gift.

See also:

How the inheritance is divided between heirs according to the law in 2021

Who has the right to an obligatory share in the inheritance regardless of the will in 2021

When a deed of gift is invalidated

There is another way to return a gift - to recognize the deed of gift as illegal or void. Both the donor himself and other persons can apply for this.

The contract should not contain additional conditions

Realtors and notaries know this. Therefore, they try not to allow any additional conditions to be indicated in the gift agreement that would make it possible to recognize the deed of gift as invalid. There are certain interpretations of the text of the transaction that will not be missed by the Registration Authority:

• It cannot be stated that the property passes to the new owner immediately after the DONOR'S DEATH. This condition makes the deed of gift illegal, and the legal rules relating to inheritance apply to the property. That is, there is no need to challenge such a deed of gift - it is invalid.
• It cannot be stated that the donee undertakes to PROVIDE THE DONOR FINANCIALLY for life, to provide lifelong care for him (for example, if he is sick and of advanced age); this is an annuity agreement, not a gift.
• If you include in the agreement such a condition as the possibility of the DONOR LIVING in the donated apartment until death, then such an agreement may be rejected by the registering authority, since it contains elements of a rent agreement.

But, if, for example, a retired donor donates his only home, if a lawsuit is filed, such an agreement may be declared invalid due to unfavorable conditions for the donor. And if there is any doubt that the donor may end up on the street, it is better to write such a clause in the contract and insist on its registration with Rosreestr.

A deed of gift is considered invalid if it is given to a certain category of persons

There are types of persons who cannot be donees. That is, if real estate is donated to such a person, you can go to court and challenge the gift agreement. These include:

• civil servants in connection with the implementation of their activities;
• guardians and trustees, as well as other representatives of minors or incompetent persons in relation to the property of the wards;
• personnel of medical or social institutions (doctors, nurses, teachers, social workers, etc.) in relation to the property of people staying in these institutions.

Another case when a deed of gift can be challenged is if the donor is a legal entity and donated property to avoid its seizure during bankruptcy.

How to challenge a deed of gift for an apartment after the death of the donor

Challenging a deed of gift for an apartment is quite a difficult task. Russian legislation contains an exhaustive list of grounds under which a gift agreement can be declared invalid. There is no chance of doing this due to personal hostility or self-interest, without compelling reasons and relevant evidence.

In addition to the existence of grounds for challenging the donation, a good evidence base will be required. It is advisable to use the services of an experienced lawyer or lawyer who will assess your situation and help you develop an action plan.

The algorithm of actions of heirs or other persons wishing to challenge the deed of gift for an apartment is as follows:

1. Collection of evidence and necessary documents confirming the existence of grounds for canceling the gift agreement.
2. Preparation of a statement of claim.
3. Payment of state duty.
4. Sending copies of the statement of claim and documents attached to it to all persons participating in the case.
5. Going to court.
6. Participation in court proceedings personally or through a representative.
7. Obtaining a court decision.
8. Waiting for a judicial act to enter into legal force after 30 days and requiring the defendant to comply with it.
9. Transferring the court decision to a notary to include the apartment in the inheritance estate.
10. Obtaining a certificate of inheritance and re-registering property as your own.

What evidence is needed to challenge a deed of gift?

As evidence, the court is provided with any information that indicates the existence of grounds for declaring the transaction invalid. Depending on the grounds for the challenge, such documents may be:

• A verdict of guilty finding the donee guilty of the death of the donor.
• A court decision declaring the donor incompetent.
• Video and audio recordings indicating that the donor was threatened or otherwise coerced into entering into a contract.
• A medical report on the health status of the donor, certificates from psychiatric or drug treatment institutions about undergoing treatment or being registered - confirming the inability to understand the consequences of their actions.
• Financial or banking documents - confirming the receipt of money during the period of concluding the gift agreement.
• Witness's testimonies.
• Data from law enforcement agencies - if the donor made a statement about threats during his lifetime.

A deed of gift may be contested on the basis of the donor's incapacity in the absence of a corresponding court decision declaring the citizen incompetent. In this case, it is possible to conduct a post-mortem psychological examination.

A special commission appointed by the court must verify the legal capacity of the donor at the time of conclusion of the agreement. All available materials are taken into account - medical reports, characteristics from the place of work, testimony of witnesses, etc.

Based on the available evidence, the commission makes a conclusion about the donor’s legal capacity at the time of conclusion of the transaction. The parties, as well as the court, may offer to conduct an examination by a certain specialist. The main condition is that the expert should not be dependent on any of the parties to the dispute.

How to file a claim

The statement of claim is drawn up in writing in accordance with the requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation and must necessarily contain:

1. Name of the court.
2. Plaintiff - full name, your personal and passport details, place of residence, place of work and contact details.
3. Defendant - full name, personal and passport data, place of residence, contact details. If the defendant is a legal entity, its name and legal address.
4. Details of the donation agreement - date and place of conclusion, object of donation, information about the notary, if the transaction was certified by him.
5. Grounds for challenging a transaction.
6. Attached documents.
7. Date of compilation and signature.
8. Details of the representative - if he participates in the case on behalf of the plaintiff.

The following must be attached to the statement of claim:

1. Donation agreement. If the plaintiff does not have it, the court has the right to demand that the defendant provide it at the preliminary hearing.
2. Receipt for payment of state duty.
3. Postal documents confirming the sending of copies of the statement of claim to a party.
4. Identity document.
5. Representative's power of attorney.
6. Written evidence.

Cases regarding the invalidation of a gift agreement:

• A plot of land, residential or non-residential premises, as well as other objects firmly connected to the land - are considered by district courts at the location of such objects within the framework of exclusive jurisdiction in accordance with Art. 30 Code of Civil Procedure of the Russian Federation.
• Other gifts - by district courts at the location of the defendant in accordance with Art. 28 Code of Civil Procedure of the Russian Federation.

The amount of the state duty depends on the value of the thing that is the subject of the gift. It consists of a fixed amount and interest in accordance with Art. 333.19 Tax Code of the Russian Federation:

• For claims up to 20 thousand rubles. - 4% of the value of the property, but not less than 400 rubles.
• For claims from 20,001 to 100 thousand - 800 rubles. and 3% of the amount over 20 thousand rubles.
• For claims from 100,001 to 200 thousand - 3,200 rubles. and 2% of the amount over 100 thousand rubles.
• For claims from 200,001 to a million - 5,200 rubles. and 1% of the amount over 200 thousand rubles.
• For claims over a million - 13,200 rubles. and 0.5% of the amount over 1 million rubles. But no more than 60 thousand rubles.

Sample statement of claim to invalidate a gift agreement that violates the requirements of the law (DOC, 20 KB)

The procedure for challenging a deed of gift

How to challenge a donation? To do this you need:

• prepare evidence;
• file a claim;
• attach to it the information received in the form of documents, records, etc.;
• pay the state fee. The claim is of a property nature, so the amount of the fee will depend on the value of the claim, determined by an independent appraiser;
• submit documents for consideration;
• wait for the court's decision and receive it in your hands.

After the court rules in favor of the plaintiff and cancels the transaction for the gratuitous alienation of property rights, it is necessary to re-register this right. To do this, you need to contact Rosreestr in any convenient way. The basis for re-registration of the right will be an act of a judicial authority.

Collection of evidence

An important point in the property return procedure. Without evidence, the court will not consider the claim. Documents, testimony of witnesses (relatives, neighbors, work colleagues), photo, audio and video materials can be used as evidence. They must be attached to the claim.

Documentary evidence may include medical reports on the donor’s insanity, a doctor’s report on alcohol dependence, and other evidence.

Important! If the donor has already died, then it will be quite difficult to prove his incapacity or insanity at the time of signing the documents. A psychiatric examination of the deceased is carried out in the presence of strong evidence and medical documents. If the former owner or his relatives never sought the help of a doctor, then it will be impossible to prove the fact of insanity or psychiatric illness.

In addition, the following documents can be attached to the claim as evidence:

• receipts confirming receipt of a specific amount of money for the donated property;
• records in medical records from public and private medical institutions about the presence of certain diseases in the previous owner;
• conclusion of a psychiatric examination;
• other.

Is it possible to appeal a deed of gift? It is possible, but only in court and with strong evidence.

Search for a lawyer

It is recommended that you entrust the process of appealing a gift agreement to a lawyer. To find a professional and increase the chances of a satisfactory outcome of the case, you need to study information about a particular lawyer. You can listen to the opinions of friends/family/relatives who have previously turned to one or another lawyer for help.

An experienced lawyer will help you draw up a claim, prepare other procedural documents, and collect evidence.

Drawing up and filing a claim

The statement of claim must be correctly drawn up. It is better to entrust this to a lawyer, but if this is not possible, then you need to rely on Art. 130 Code of Civil Procedure of the Russian Federation. It states that the claim must include:

• the full name of the judicial authority to which it is submitted;
• information about the plaintiff and defendant - full name, residential address, contact information;
• “body” is a description of the circumstances that led to the application being filed with the court;
• links to current legislation;
• requirement to appeal the contract;
• attachment – ​​a list of documents confirming the facts stated in the application;
• date of signing;
• the applicant's signature and its transcript.

Important! An incorrectly drafted claim will not be accepted by the court for consideration. In order not to waste time, it is recommended to contact a lawyer who will not only draw up a claim correctly, but will also represent the interests of the principal in court.

Waiting for a court decision

The court will consider the case on its merits, study all the evidence presented, and examine its relevance. If there are grounds for canceling the agreement on the gratuitous transfer of property into ownership, the court will take them into account.

If the act of the justice body is in favor of the plaintiff, the transaction will be canceled. Based on the court decision, it is necessary to re-register the property right to the plaintiff. To do this, you should contact Rosreestr:

• personally;
• through the MFC;
• through the State Services portal.

It is necessary to prepare documents for registration of rights and pay a fee of 2,000 rubles.

When can you challenge a deed of gift for an apartment?

The legislation provides the following deadlines for challenging a gift agreement:

• Insignificant transaction - 3 years. For the party to the contract, the calculation of the period begins from the moment of transfer of the gift. For other persons - from the moment when the person learned or should have learned that the transaction began to take effect. In this case, the limitation period is limited to 10 years, which is calculated from the date of commencement of execution of the gift agreement - for example, from the moment of transfer of keys.
• Voidable transaction - 1 year. It begins to flow from the day the pressure, violence or threats cease. Or from the day when the applicant became aware of violations that were committed during the conclusion of the transaction and entail its invalidity.

The limitation period can be restored if there is a good reason for missing it - Art. 205 of the Civil Code of the Russian Federation. To do this, you need to go to court with a corresponding application. Legislation includes such circumstances as valid reasons that prevented the applicant from going to court. For example, a serious illness.

The above 10 year limitation period cannot be restored.

It is important to take into account that the statute of limitations is applied by the court only if one of the parties declares this during the trial - Part 2 of Art. 199 of the Civil Code of the Russian Federation.

Is it possible to challenge a gift agreement for a child?

You can challenge a deed of gift for a child in the absence of the consent of his parents to complete the transaction - Art. 26 KR RF. Such a document is necessary even if they are divorced at the time of concluding the contract and are not deprived of parental rights.

This requirement does not apply to gifts of small value. And also cases when the object of the gift is not real estate and the agreement is not subject to state registration.

If a share in property is transferred to a child in a transaction, the lack of notarization affects its validity.

What are the consequences of canceling the gift agreement?

If the court decides to invalidate the transaction, the donee is obliged to return all property received under the gift agreement. And if the donated item caused material damage, also pay compensation. This does not happen often in judicial practice, but there are precedents.

The opposite situation may also be true. For example, if the gift agreement was recognized as a sham transaction because in fact there was a purchase and sale. In this case, the court may oblige both parties to return everything received under the transaction, including the money paid to the donee.

When the deed of gift is canceled after the death of the donor, the court decision on the invalidity of the transaction does not yet constitute a basis for the applicant to re-register ownership.

A judicial act that has entered into legal force is transferred for inclusion of property in the inheritance estate to the notary who is conducting the inheritance case. But the certificate of inheritance already received from the notary gives the right to register the thing as property.

Where to apply, documents

Challenging a gift agreement is within the competence of district courts, where the plaintiff must provide the following documents:

• passport;
• statement of claim;
• certificates confirming the illegality of transferring the apartment as a gift to another citizen;
• receipt of payment of state duty;
• certificate of ownership;
• gift agreement.

Materials are provided in original form. After registration, copies are made of them, and the originals are given to the applicant.

What information should the claim contain:

• Name of the court.
• FULL NAME. and the registration addresses of the plaintiff and defendant.
• On what basis should an agreement be declared void (references to the Civil Code of the Russian Federation).
• Description of the circumstances and list of documents confirming the illegality of the transaction.
• Request to invalidate the transaction and restore the plaintiff’s property rights (as an example).
• Date of application and signature of the applicant.

Expert commentary

Kireev Maxim

Lawyer

It may take up to 10 business days for the petition to be reviewed, after which the petitioner is notified of the decision and legal proceedings begin. In total, the entire process may take several months.

Can the donee register a deed of donation of an apartment if the donor has died?

When a consensual transaction took place between the parties, the obligation to transfer the gift rests with the heirs of the donor. Except for cases when the contract contains a direct instruction to the heirs not to fulfill the transaction.

If there was a real gift agreement, according to which the donee did not have time to register ownership, he can do this after the death of the owner.

Since the deed of gift comes into force and becomes binding on the parties from the moment of its conclusion - Art. 425 of the Civil Code of the Russian Federation. And it is considered concluded when an agreement is reached between the parties on all the essential terms of the transaction - Art. 432 of the Civil Code of the Russian Federation.

The absence of state registration is not a basis for declaring a gift agreement invalid when such an agreement was concluded after 03/01/2013 - Federal Law No. 302-FZ of December 30, 2012.

Legislative framework in 2021

In jurisprudence, a gift agreement or deed of gift is usually called an agreement according to which the object of the transaction and the ownership of it are transferred free of charge from one party (the donor) to the other (the donee). The procedure for completing a transaction, requirements for drawing up a document and other nuances associated with this type of alienation are regulated by the Civil Code of the Russian Federation, namely Chapter 32 .

Due to the unique features of the deed of gift, which we will discuss below, very strict requirements are imposed on it. For example, such an agreement cannot be executed for a minor citizen, and in the case of donating a share in an LLC, a notary must participate in the procedure.

That is why any violation of established requirements may serve as grounds for cancellation of the transaction.

What does judicial practice say regarding challenging deeds of gift?

Judicial practice in such cases is ambiguous. This is due to the variety of grounds provided for invalidating a gift agreement. And also in each case under consideration it depends on the evidence presented by the parties.

There are a sufficient number of examples when the court declared the deed of gift invalid after the death of the donor. But in such cases, the parties presented compelling reasons and indisputable evidence of the validity of their demands to invalidate the transaction.

Therefore, you need to prepare for the trial carefully, and, if possible, involve an experienced lawyer or attorney in solving the problem.

Consequences of declaring a gift invalid

A deed of gift that has been declared invalid by a court should not be executed. But if the agreement was already in force and the parties transferred things under it, then they must return them back.

If we were talking about a sham transaction, then the court has the right to apply to the relations of the parties the rules governing the “correct” contract.

The parties will learn what consequences will be applied from the court decision. The operative part states not only the judge’s verdict, but also the “answers” ​​to all stated demands.

Disputes regarding the invalidation of a deed of gift are a long and complex category of cases. The outcome of its consideration will largely depend on how competently the claim is drawn up and what evidence is presented. Therefore, the services of an experienced and qualified lawyer will help determine the strategy in the process. The principal will receive detailed advice and assistance in preparing for the trial.

Remember

1. A deed of gift can be real, consensual or in the form of a donation.
2. After the death of the donor, his successors, the donee and third parties can challenge the deed of gift.
3. Relatives can challenge the deed of gift on almost any basis specified in the law.
4. The primary successors most often initiate the recognition of the transaction as invalid, since they will be able to claim the donated apartment if the contract is cancelled.
5. In order to challenge the deed of gift, the interested party must go to court.
6. The court decision, which satisfied the applicant's requirements, is transferred to the notary for inclusion of the property in the inheritance mass.

Will you try to prove that the donor was incapacitated at the time the gift deed was entered into? Will you try to collect the necessary documents yourself and prepare a claim in court, or contact an experienced lawyer?

Supporting documents

Applicants will have to prove the illegality or insignificance of the gift. It is necessary to submit documents that will confirm the intent of the donee or the fact that the donor was completely unaware of the meaning of his actions:

• examination of the mental state of the donor;
• entries in medical records;
• receipts confirming receipt of money for the “donated” apartment;
• documents declaring the donor incompetent;
• certificates from law enforcement agencies;
• witness statements.

The deal is being challenged in court. It is difficult to challenge a deed of gift, but it is quite possible if there is appropriate evidence.

Statement of claim to challenge the gift agreement

The statement of claim must be properly completed. The preparation of the application should be entrusted to a specialist (lawyer or attorney), since it is necessary in the text of the document to correctly state the position of the plaintiff , references to legislative and regulatory acts, and also to form an evidence base.

When writing a claim, the document must indicate :

• details of the parties to the dispute and their location or addresses;
• subject and essence of the dispute;
• reasons and evidence;
• list of attached documents;
• date and signature of the applicant (or his representative).

The application is submitted to the court in several copies (depending on the number of parties to the case). The court employee marks the acceptance of the application on one copy and gives it to the plaintiff.

How does the dispute procedure work?

Before challenging a deed of gift, you need to check the sufficiency of the grounds on which the transaction is invalidated.
The plaintiff is required to draw up a statement of claim reflecting these points and send it to the court. Along with the claim the following shall be submitted:

• a gift agreement subject to challenge;
• a receipt confirming payment of the state duty;
• certificates, medical documents, extracts proving the illegality of the transaction;
• witness statements, audio and video recordings;
• expert opinions.

The complete set is transferred to the court at the defendant’s place of residence in accordance with general jurisdiction. The claim is reviewed within 5 working days, after which it is accepted or rejected.

The return of the claim is provided for:

• incapacity of the plaintiff;
• lack of evidence of pre-trial settlement;
• improper jurisdiction;
• absence of the plaintiff's signature.

Download the statement of claim to invalidate the apartment donation agreement

Challenging the donation of an apartment

Donating an apartment has its own characteristics, failure to comply with which may result in the loss of the right to the gift if such a transaction is contested. Thus, the transaction of donating an apartment can be challenged on the following grounds:

• the transfer of real estate has not passed state registration;
• incapacity of the donor at the time of execution of the transaction;
• prohibition of donation;
• the possibility of losing the apartment or the presence of such a threat due to the actions of the donee;
• an attempt by the donee on the life and health of the donor or the donor’s family or relatives of the donor;
• other reasons.

You can challenge not only the donation of an apartment, but also the donation of a share of the apartment. The grounds for this are similar to the grounds for challenging the donation of an apartment.

Example

Alexey filed a lawsuit against Dmitry (the defendant) to invalidate the donation of 3/11 shares of the apartment. In substantiating his claims, Alexey indicated that his father entered into a donation agreement with Dmitry, transferring to the latter 3/11 shares of the apartment as ownership. The plaintiff indicated that when making the transaction, his father did not understand the significance of his actions and long before the conclusion of the transaction he was registered in a psychological dispensary. The plaintiff provided evidence to the court about his father being registered and receiving treatment.

The defendant, Dmitry, objected to the claim and asked the court to refuse to satisfy the plaintiff’s demands, citing the fact that at the time of the transaction, the notary who recorded (certified) this transaction had to check the legal capacity of the persons making this transaction.

The court, guided by the legislation of the Russian Federation and taking into account the evidence provided by the parties, satisfied the demands of Alexey (the plaintiff) and declared the contract invalid.

What are the deadlines for challenging a deed of gift?

In accordance with Art. 181 of the Civil Code of the Russian Federation, the limitation period is:

• 3 years - to invalidate a void transaction. For example, there was a ban on disposing of a house, but the donor still entered into a gift agreement.
• 1 year - to invalidate a voidable transaction. For example, a husband did not obtain his wife’s consent to donate an apartment purchased during marriage.

In the first case, the specified period begins to run from the moment when the execution of the contract began. And for the plaintiff, who was not a party to the transaction - from the moment when he learned or should have learned about the beginning of its execution.

In the second case, the limitation period begins to run from the moment when the plaintiff became aware of the circumstances that constitute the basis for declaring the deed of gift invalid. For example, during a divorce, a wife learned that her husband had given a car purchased during marriage to his friend. From this time the calculation of the limitation period begins.

Or from the day the violence or threats ceased, if the deed of gift is contested on this basis. This means that if, for example, seven years have passed since the date of conclusion of the contract, then you have a chance to challenge the transaction.

The plaintiff may ask the court to restore the missed period, for example, due to serious illness. But even for the restoration of missed deadlines, there is a time limit, which is 10 years from the date of commencement of execution of the contract - Art. 181 Civil Code of the Russian Federation.

An exception is possible if third parties file a claim in court to declare the transaction illegal. The period for this is 1 year, the calculation of which begins from the moment the relevant circumstances become known to the applicant.

Important! If the parties to a proceeding do not declare the application of the limitation period, the court does not have the right to do so on its own initiative.

Who has the right to challenge a gift agreement?

The following persons have the right to challenge the gift agreement:

1. Donor. Has the widest range of grounds for challenging a transaction. It can use almost all of the above points.
2. The donee. The recipient of the gift has the right to refuse it before the property is transferred. In this case, on the basis of Article 573 of the Civil Code of the Russian Federation, the contract will be considered terminated. If the transaction was concluded in writing, then the refusal is written in writing.
3. Spouse of the donor. A spouse can challenge a gift agreement only if the donated property is subject to state registration and his consent to the alienation of the property has not been obtained. The exception is those cases when a marriage contract was concluded between the husband and wife, establishing a regime of separate property.
4. Creditor. The creditor challenges the deed of gift only if the donor goes bankrupt. Thus, the bank appoints its representative who will challenge in court the deed of gift signed by the donor within six months before the start of the bankruptcy procedure.
5. Third parties. Here we mean representatives of an incapacitated person, a child or a citizen with limited legal capacity. These may be parents, guardians, adoptive parents. In addition, the interests of such citizens can be represented by the prosecutor's office and guardianship authorities.