As is known, gift relationships are always characterized by their gratuitousness in relation to the recipients. It is precisely because of these properties of the deed of gift that it is most often concluded in favor of close people, including in favor of spouses. A characteristic feature of such a transaction is that there is no need to pay income tax.
Another important point is that in order to gift jointly owned property to a husband or wife, it is first necessary to establish a regime of shared ownership of the property. And only after this, one spouse will be able to give the other his share in the common property. Let's consider these and other aspects in more detail.
The concept of a gift agreement
Under a gift agreement, one party undertakes to transfer property to the other free of charge. If a husband gives his wife an apartment, the wife is not expected to respond - the characteristic feature of the transaction is that it is gratuitous.
Although the gift agreement is concluded between a husband and wife, it retains all the basic properties that are inherent in this transaction.
You should also remember some of the distinctive features of the agreement - the conciliation procedure, the procedure for registration, taxation, etc.
Gifts in marriage are jointly acquired property. Spouses can give each other gifts; the legislation does not contain any restrictions in this regard.
Find out in more detail what a deed of gift is and how it is drawn up.
Cost of the procedure
The cost of the entire donation procedure in marriage consists of payment of a state fee of 2000 rubles, payment of notary services:
- An additional fee to the fee (500-600 rubles) if the notary himself applies for registration.
- The state fee for notary services is 0.3% of the value of the gift, but not less than 200 rubles. “Fundamentals of the legislation of the Russian Federation on notaries” Art. 22.1, pp. 2.
- Donation agreement from 2000 rubles.
The final figure for paying for notary services depends on the region of the country and other additional services.
Joint property of spouses
Property acquired by spouses during marriage is recognized as their common joint property. They own, use and dispose of it together by mutual consent.
Common property includes:
- income of each spouse from work;
- income from business and intellectual activities;
- benefits and pensions that do not have a designated purpose;
- movable and immovable objects;
- shares;
- securities;
- other property acquired during the marriage.
Find out in more detail how joint property of spouses is formed.
Rights and obligations of the parties
Any contract contains conditions that the parties must fulfill. The rights of the donor include the following:
- refusal to donate an object for reasons provided for by law;
- claim for compensation for damage caused to the donated property.
His responsibilities include:
- transfer the object of donation after concluding the agreement;
- provide the recipient with all the information necessary for the correct use of the gift;
- bear the costs of completing the transaction.
The recipient also has the rights:
- refuse to accept a gift;
- demand compensation for damage on the grounds provided by law.
The recipient is obliged:
- use the gift without damaging it;
- return the gift if there are legal grounds for doing so.
The parties are obliged to comply with the terms of the transaction. Otherwise, the gift agreement will be terminated.
Legal norms
Issues related to the gift agreement, as well as other civil transactions, are regulated.
Disputes regarding the property of spouses are settled by rules. In this legislative act you can find guidance on how to prove what is and what is not a spouse’s personal property.
Points related to housing registration are provided for in.
The remaining nuances are regulated by some other laws and by-laws.
Features of a deed of gift for a house between close relatives
Donation between close relatives follows the standard scheme as between other persons. It should be remembered that if a donation occurs during a period of bankruptcy or to avoid liability (so as not to pay taxes, so as not to have property seized), there is a high risk of challenging such a transaction by interested parties. These may be creditors of obligations, bankruptcy creditors or an authorized body - the tax service.
In addition, gifts between relatives are not subject to personal income tax. This means that, having received the property, the recipient will not have to pay 13% of the price of the house to the budget. The contract can indicate a relationship, but this is not necessary.
You can see what a sample deed of gift between relatives looks like here.
Features of donating real estate between spouses
Gifting property between spouses has its pitfalls. The regime of the property being sold plays an important role.
Let's consider how the donation procedure occurs in one case or another.
How to donate housing that is individually owned
As noted above, not all property of spouses is their joint property. There are personal items that only one person owns. It has the right to dispose of such property independently, so donating 1/2 of the husband’s apartment to his wife is possible even without her consent.
In this case, the gift agreement is equivalent to a standard civil law transaction.
Find out in more detail what constitutes personal property of spouses.
How to donate property that is jointly owned
Transactions related to the alienation of joint property are accompanied by certain difficulties. Thus, in accordance with the law, a husband/wife can initiate the donation of property that is in common joint ownership only with the permission of the marriage partner.
Sometimes such a need arises not only among spouses, but also among other persons who own joint property. For example, among members of a peasant farm (peasant farm). In this case, all significant actions are carried out by its head, while the rest of the peasant farm participants are obliged to maintain general order.
Many people are interested in the question of whether a husband can give his wife an apartment purchased during marriage. If the housing is jointly owned, first it is necessary to allocate the husband’s share, after which he can dispose of it at his own discretion, including gifting it to his wife.
According to the Family Code of the Russian Federation, when one of the spouses donates property that requires state registration or notarization, it is necessary to obtain the consent of the second spouse.
Therefore, in order to donate an apartment purchased during marriage, you need the wife’s permission for such actions.
However, some lawyers note that the very fact of being married already implies the tacit consent of the spouse to conduct such a transaction. It should be recognized that experts do not have a common point of view on this issue.
Although some people prefer to formalize a purchase and sale agreement as a gift, the gift of jointly acquired property between spouses is one of the most frequently performed transactions in family relationships.
How to donate a share in an apartment
Often there is a need to donate not all housing, but only part of it. In this regard, let's look at how to donate a share of common joint property.
Initially, shares in common joint property of spouses are not designated. Therefore, the first thing to do in this case is to separate them by concluding a special agreement with the subsequent registration of the property rights of each of the spouses. After this, each owner acquires the right to his own part of the property.
Donating a share in common shared property has its own characteristics. Thus, when selling housing, it should be taken into account that the remaining participants have the pre-emptive right to purchase it. This applies to the sale of an object.
To circumvent this rule, many choose to conclude a gift agreement, because there are no such restrictions for it.
Although formally there are no obstacles for those who are interested in whether a husband can give his wife his share in the apartment, it is worth being aware of the legal consequences of this decision. In this case, the wife will become the full and sole owner of the home, and the husband will under no circumstances be able to claim it in the future.
Previously, the deed of gift was drawn up arbitrarily, but after 2016, in most cases a notarized form is required.
A deed of gift for a share can be drawn up by a notary, after which it is necessary to submit documents for state registration.
Below we provide a sample gift agreement for a share of property:
The procedure for allocating a share in an apartment of joint ownership of spouses
As mentioned above, in order to realize your part of the property jointly owned by the spouses, it is necessary to allocate shares. You can do this in several ways:
- by mutual consent by concluding a marriage contract or an agreement on the division of common property of the spouses;
- in court if it is impossible to reach agreement.
As a general rule, unless otherwise provided by agreement or law, it is assumed that the couple has equal shares.
The minimum share for a gift without allocation is not established by domestic legislation. But if part of the property of one of the participants is insignificant, it cannot be allocated in kind, so he is simply compensated for the cost of the share in cash equivalent.
Donation of an apartment under a marriage contract
A marriage contract is a document that makes it much easier to resolve all property issues that arise between spouses. It can be concluded both during marriage registration and at any time during family life.
The conclusion of a marriage contract allows you to leave housing to one of the spouses without executing other civil law transactions.
An apartment given to the other spouse under a marriage contract is considered the personal property of the person, and therefore does not fall into the category subject to division. This is the best alternative to avoid property disputes in the future.
Cases in which spouses may be refused
There are cases when registration may be refused; there may be several reasons for this:
- The contract is drawn up incorrectly or there are certain inconsistencies in it.
- The data on the share of the apartment specified in the contract do not coincide with the real indicators: the area is indicated incorrectly, the cadastral number does not correspond, the layout of the plot which is being donated does not correspond to the data in the technical passport.
- The donor does not have documents confirming the sole ownership of the part of the apartment that he wants to donate.
- The owners of other parts of the apartment are against donation.
What to do if refused?
If registration was refused, the reasons for the refusal should be taken into account and measures should be taken to eliminate them. After this, you can re-issue the deed of gift, but it is better to enlist the support of a notary.
Procedure for donating an apartment during marriage
Those who are married are interested in the question of how a husband can give his wife an apartment, and vice versa. As already noted, for this you need to draw up a gift agreement, despite the fact that the transaction takes place between family members.
Conclusion of an agreement
Currently, there is no obligation to have this document certified by a notary. However, many still prefer to contact a notary office.
deed of gift can be obtained from the Internet. It is important to indicate in the document the circumstances that correspond to your situation.
The gift agreement will differ depending on what type of property the object belongs to: common or shared.
Do not forget that in the first case, the consent of the spouse to carry out the transaction will be required. Check out what a sample agreement for donating a share of an apartment between spouses looks like.
If shares in the apartment have already been allocated, and the donor intends to transfer the entire apartment, the document must be signed by each property owner. At the same time, all owners can independently dispose of their share of the property.
To correctly draw up a document, read what a sample agreement for the donation of an apartment in shared ownership is.
Registration of a transaction
The transfer of ownership of real estate from one person to another is subject to state registration. It does not matter whether you are going to donate the entire apartment or only part of it - state registration is needed in any case.
In this regard, it is worth discussing where to go for the procedure. The agreement of donation of part of the apartment from the wife to the husband, as well as the entire property, can be registered in several ways:
- Contact the Rosreestr office in person.
- Send documents to Rosreestr by mail.
- Take advantage.
- Visit the Multifunctional Center.
To save time and receive qualified advice, many choose to formalize the donation of a share of the apartment to their spouse through the MFC.
Multifunctional centers operate on a one-stop-shop principle, collaborating with the necessary government agencies, so that the applicant does not have to waste a lot of time.
List of documents
To carry out state registration of ownership of real estate, it is necessary to submit a corresponding application. Before registering a deed of gift for shared ownership of a house, you need to collect the following package of documents:
- passport;
- a document confirming the authority of the representative, if necessary;
- documents that are the basis for state registration;
- real estate documentation;
- receipt for payment of state duty.
Required documents
The spouse provides the notary agency employee with the following list of documentation:
- passports of spouses;
- marriage registration certificate;
- title documentation for the apartment or share in it (purchase and sale agreement, certificate or extract from the Unified State Register of Real Estate);
- registration certificate for the apartment;
- an extract from the Unified State Register of Real Estate containing cadastral information: most often, employees of notary agencies themselves request this document - the extract contains the cost of the transferred share, and the certificate must be issued recently;
- an extract from the house register, which contains information about the persons registered in the housing.
To contact Rosreestr or the MFC, you will need to prepare the following list of documentation:
- 3 copies of the gift agreement (more copies may be required);
- applications filled out using a special template;
- applicants' passports;
- payment receipt.
If applicants apply to the MFC, then after transferring the documents, the center employee will provide them with a receipt of acceptance. It will contain information about the approximate date the discharge will be ready, which the spouses will then need to pick up.
Features of taxation
The gift agreement is taxable. Therefore, many people have a question about whether they need to pay tax when giving an apartment to their wife from their husband, and vice versa.
According to , a gift from a close relative or family member is exempt from tax. And since the RF IC also classifies spouses as family members, this means that you can give such gifts to each other without fear of large expenses.
In other cases, the gifted property is taxable because it is considered the person’s income.
It is important to consider whether the marriage is officially registered. According to the provisions of the RF IC, only persons who are officially married are considered spouses. Consequently, tax benefits do not apply to common-law husbands and wives.
This point should be taken into account by those who decide to make a similar gift to their roommate.
In general, personal income tax is also paid upon assignment of rights.
Taxes
A donation is considered a gratuitous transaction, because The alienated property does not generate income to the donor and therefore is not subject to taxation. The donee party is also not subject to tax, because spouses are considered close relatives.
Based on the provisions of Art. 217 of the Tax Code of the Russian Federation paragraph. 2 clause 18.1, “income received as a result of a gift is exempt from taxation if the donor and donee are family members and (or) close relatives in accordance with the Family Code of the Russian Federation, Art. 14."
Donation of real estate after the death of the donor
It is legally impossible to donate housing after the death of the donor. “Donation” of an apartment after the death of a spouse can only take place if a will has been drawn up for the wife. In this case, she becomes the legal owner of the property. But this is no longer a procedure of donation, but of inheritance.
In all other conditions, the necessary documents must be drawn up during the owner’s lifetime. Otherwise, transactions will be considered invalid.
Find out in more detail whether a deed of gift is valid after the death of the donor.
When can registration of a transaction be refused and what should be done?
A refusal to register a gift may occur if the law was violated during the conclusion of the transaction.
For example:
- You cannot promise a gift after your death, i.e. the donee will become the owner after the donation.
- If the donor at the time of donation is not aware of his actions and actions.
- If the donee himself, for some reason, refuses to accept the gift (Civil Code of the Russian Federation, Article 573. Refusal of the donee to accept the gift).
- If not all documents are submitted, or there are inaccuracies in the documents, or the apartment is encumbered, etc.
Refusal to register does not mean a final refusal and the donor can apply for registration again after eliminating the reasons for the first refusal.
How can spouses gift an apartment to third parties?
If spouses want to donate common property, they will have to enter into an agreement for the donation of an apartment by two owners of common joint property. In this case, the husband and wife act together as the donor. Neither of them can make such a transaction without the consent of the other.
Most often, such an agreement is drawn up in favor of close relatives, since it implies the free transfer of square meters into the possession of third parties.
The law does not prohibit such transfer in favor of other citizens. So, you can give an apartment in joint ownership to sisters, brothers, parents, children, and so on.
Consent of the spouse to complete the transaction
If the deed of gift itself is allowed to be drawn up without notarization, then the consent of the spouse must certainly be certified by a notary. In this case, a written form of the document is required.
To visit a notary, you need to prepare the following documents:
- passports of the parties;
- Marriage certificate;
- documents establishing ownership of the apartment;
- gift agreement.
Division of an apartment with transfer is one of the most common cases when it is necessary to obtain the consent of the spouse to carry out the transaction. At the same time, the legislation provides for circumstances when such permission is not necessary.
How to donate property that is in shared ownership
Donating real estate that is in shared ownership is different from selling it. As noted above, family law requires written notification to all owners of a property of the intention to sell it.
Co-owners are given a month to exercise their right of first refusal to purchase housing. If during the specified period they do not express a desire to purchase this property, it can be sold on the same conditions to other persons.
Donating a share of an apartment in shared ownership in 2021 does not require a written warning.
Consent for donation is only necessary if the property is in common joint ownership.
Also, the law does not establish a mandatory notarial form of the transaction, so you can draw up the document yourself. To do this, just download the deed of gift of shared ownership and enter your data into it.
It is worth noting that such rules apply not only to houses, apartments and other residential premises. You can donate absolutely any property owned by citizens.
Most often, due to the specifics of the subject of the gift itself, this type of agreement is drawn up specifically for real estate. In the same way, you can conclude a donation agreement for the common shared ownership of non-residential premises.
What could be the risks and how to avoid them?
Donating an apartment, along with advantages for the parties, also has disadvantages, which can be called risks of the transaction. Risks, as a rule, are associated with the donor, who, after transferring a gift or promise to transfer, may find himself in a situation where his state of health, property or family situation has changed for the worse, as well as when the behavior of the donee has manifested such intentional actions that create a threat life and health of the donor or his loved ones (how is the donated apartment divided after a divorce?).
The law provides for cases when the donor has the right to cancel a donation (Article 578) or a promise (Article 577) of the Civil Code of the Russian Federation.
Important! Another risk is that after the transaction the donor is deprived of his rights to the property, and the donee becomes the full owner and has the right to dispose of it at his own discretion, incl. and sale.
As you can see, the procedure for donating an apartment purchased during marriage between spouses is somewhat different from a similar transaction between relatives, because Due to the joint ownership regime, it is required to initially divide it and then donate it.
Donating an apartment to one of the spouses
Often a gift is given to only one of the spouses, for example, an apartment or a house. Fearing the dissolution of the marital relationship, many are interested in whether the spouse can lay claim to the gifted property.
Gifts and other things received under gratuitous contracts are considered the personal property of a person; a spouse cannot claim it during a divorce. The owner himself disposes of the donated property.
It’s a different matter if the property was gifted to both spouses. In this case, there is no doubt whether the donated apartment is considered jointly acquired property.
Difficulties arise when own funds were contributed to the apartment donated to the spouse, for example, to renovate the premises.
You can prove the fact of investing funds by providing checks and other payment documents, but you should only count on monetary compensation in the amount of 50% of the amount spent.
The same can be said for those who are interested in whether the wife has a share if the apartment is deeded to the husband. In this case, only the recipient is considered the owner.
Legal regulation of the issue.
The donation procedure is strictly regulated by federal law. To perform this action, the party must draw up a written agreement, which will become the basis for re-registering part of the object to the partner.
At the same time, it is worth understanding that drawing up a deed of gift for a share of an apartment is almost identical, from a procedural point of view, to transactions for entire objects (clause 1 of Article 572 of the Civil Code).
Articles 34 and 39 of the Family Code provide for the possibility of donating part of a home to a spouse. However, at the same time, there is a limitation associated with the size of the share. The size of the gift should not exceed ½.
This condition is invalid in a situation where the living space is recognized as the personal property of the husband or wife on the basis of Art. 36 SK.
How to re-register an apartment for a married wife: without taxes.
Fate of donated property during divorce
Divorce is often painful for spouses, as it is accompanied not only by emotional discomfort, but also by resolving complex property issues.
Many citizens do not want to share their property with their ex-spouse. What worries them most is the question of who will receive the donated items during the division of property.
As mentioned above, it all depends on what ownership the item is in and who it was gifted to. Thus, newlyweds are often given an apartment as a gift for their wedding. In this case, the gift is usually intended for both spouses and receives the status of joint property. Such gifted property is subject to division upon divorce.
Let's consider another situation when the spouses are in an officially registered marriage, but the gift was given to only one of them. For example, parents gave real estate to their daughter, which they formalized in an appropriate agreement, indicating her as the donee.
Such housing will be considered her personal property, which removes the question of whether an apartment given to one of the spouses during marriage is divided during a divorce.
Issues related to the division of property are not always resolved in a standard manner, since there is no single template for making decisions in such cases.
In the event of a trial, the court takes into account the circumstances of the case, which may differ in each case, which affects the final result.
Judicial practice shows that the division of gifted property during a divorce is a very pressing issue, and the outcome of the case is difficult to predict.
In many situations, lawyers help resolve property disputes, in particular, how property is divided under a deed of gift.
Arbitrage practice
Enforcement proceedings were initiated against Karpov K.R. due to his outstanding debt to the bank. Karpov K.R. and his wife, during their life together, acquired an apartment in the city and a private house, which the bailiffs seized, planning to sell it and use the proceeds to pay off the debt.
Then Karpov K.R. drew up a deed of gift for his wife, as a result of which the house was transferred to her, and the bailiffs were unable to recover it. The same applied to a city apartment, since it is impossible to take away the only housing to pay off debts.
The creditor filed a claim in court, but two authorities in a row refused to satisfy the claims. It is no longer possible to seize a private house, since it is the personal property of V.P. Karpova. However, the Supreme Court explained that donation transactions should not violate anyone’s property interests. If the deed of gift violates someone’s rights, then the transfer of ownership rights cannot be registered. But previous courts did not check the fact of violation of other people's rights.
When can a spouse claim donated property?
Despite the position of the law regarding the personal property of a citizen, there are still exceptions to the generally accepted rules that can play an important role in the division of property.
Much has already been said about whether a spouse has the right to gifted property. Since gifts are personal property, they are not subject to division unless they are given to a husband and wife together.
However, if, using common family funds or the personal money of the second spouse, a serious modernization of the premises was made, which significantly increased its market value, then even if the apartment was given as a gift to one of the spouses during marriage, the second can lay claim to it.
Such changes include:
- major repairs,
- reconstruction,
- redevelopment,
- refurbishment
Under such circumstances, the court may recognize personal property as joint, based on the investments made in real estate by each of them. Thus, it is possible that claimants may appear for gifted property after marriage, although the property would seem to be considered personal.
In this regard, it is worth taking into account all the nuances not only when registering real estate, but also using it during marriage.
As practice shows, the homeowner often has to, if not share the apartment, then compensate for funds for its repairs and other work.
Gifts to each other
Gifts given during a common residence are not divided during a divorce, since things acquired as a gift are considered personal property. However, things are not always so certain. In this case, the owner should provide irrefutable evidence that a gift was made by the spouse, and for this reason, a donation document certified by a notary is drawn up for the donated car, real estate and other valuables.
If a married couple gave each other shoes, clothes, jewelry, perfume, then ownership does not need to be confirmed, since these things are considered objects of individual use. This can be done orally as many times as you like. Without a written donation agreement and witness testimony, it will be difficult to justify that this is a gift if, for example, you brought your own car, laptop computer, TV, or iPad as a gift.
Where to start, where to turn?
First of all, before you draw up a contract, you must find out the desire of the opposite party to act as the donee.
The procedure cannot be carried out if the recipient is against it or has not been notified .
After this, the parties discuss the details among themselves and proceed to the next equally important step.
Where do they apply, where to apply? When completing a transaction, you need to contact the notary chamber. There they will help you draw up a deed of gift and also certify the document. If you drew up the contract yourself, if there are errors in it, they will be pointed out to you.
It is possible to draw up an agreement without subsequently appearing before a notary, but in this case, if there is incompetence and inaccuracy in the agreement, the drawing up authority may refuse to accept the document.
Receipt times and cost
As a rule, the document is reviewed from three to seven days . After this period, you will receive a document proving that the new owner has assumed his legal rights.
The cost of drawing up an agreement with a notary is determined by subject prices for these services.
On average in Russia, drawing up an agreement will cost you 3-4 thousand rubles.
Read our article about how much this procedure between relatives will cost.
In order to complete a transaction in Rosreest, you also need to pay a state fee, or rather a tax.
But if you are in a registered marriage, the transaction will be processed free of charge , since it is not subject to taxes between close relatives.
How to draw up an agreement
There are two types of document:
a) Real - when, after signing the paper, the object of the transaction immediately passes to the donee. And he consolidates the rights that have arisen in Rosreestr.
b) Conceptual – contains a promise to deliver the property at a specified time. Used in various situations. For example, after the recipient reaches the age of majority.
Externally, the document looks standard. To design it, a simple A4 paper is enough. Handwritten text is allowed; if the handwriting is illegible, it is better to type it.
Structure:
· header – indicate the city, region, date and name of the “Deed of Gift”;
· main part – where the author explains his intentions to transfer the property free of charge;
· description of the gift - number of floors, location of the property, its area, cost and other data;
· a separate item is the procedure for resolving conflicts;
· signatures of the parties
No conditions can be imposed on the recipient. He is only instructed to take the gift and dispose of it in accordance with the requirements of regulations. The finished deed of gift is drawn up in three identical copies. Participants in the process will receive one each, the third will be transferred to Rosreestr.
Features of drawing up a deed of gift between husband and wife
A deed of gift is a type of transaction according to which property is alienated from the possession of one person and transferred into the possession of another person. The only feature of such a deal is that it is absolutely free. A deed of gift for an apartment between spouses with a condition is not recognized as a gift as such and can be challenged in court.
When concluding a deed of gift between spouses, you should pay attention to the following points:
- For deeds of gift, the law requires a written form;
- notarization is not considered mandatory, but is recognized as an additional guarantor of the legality of the transaction;
- in the transaction it is necessary to accurately indicate the personal data of the spouses according to their passport;
- it is necessary to individually determine the object of ownership that they bought together or separately, indicate its characteristics, location, cost, and so on;
- the presence or absence of encumbrances, rights and claims on the object of donation from third parties;
- spouses have the right to delay the entry into force of the deed of gift, for example, until the moment of division of property or divorce;
- the rights of the parties to withdraw from the contract must be specified in the agreement itself;
- since the deed of gift in marriage is concluded between spouses recognized as closest relatives, it is necessary to indicate the details of the corresponding certificate confirming the marriage;
- the deed of gift may indicate the moment at which the actual transfer of property will take place.
After the agreement is drawn up, the parties must transfer the property to each other in fact. To certify the fact of transfer to the wife from the husband, a corresponding act is drawn up.
The date indicated in the deed is the moment of execution of the contract, when the donor transfers the property and the donee accepts it. After this, the transaction is considered completed.
However, for the donee this is not the end of the bureaucratic legwork. If real estate or a car is given as a gift, they must be registered with the relevant authorities within the prescribed time frame.
The car must be registered with the State Traffic Inspectorate within 10 days from the date specified in the acceptance certificate. The apartment must be registered with Rosreestr.
