How to draw up a deed of gift without the consent of your spouse

A gift agreement or deed of gift is one of the civil contracts and, accordingly, is drawn up in accordance with the rules of civil law. The validity of the contract directly depends on compliance with these requirements prescribed in the Civil Code. One of the conditions for registering a deed of gift is to obtain consent for the gift from the spouse, if the donor has one. Is it always necessary to obtain such permission, and what to do if it is not possible to obtain it?

Is the consent of the spouse required to formalize a deed of gift?

If a legally married citizen intends to make an act of gift, the question arises whether it is necessary to obtain permission from the spouse, and whether it is possible to give something without such permission. In this case, the law clearly regulates: if the acquisition of the gifted item (or immovable object) was made during marriage, then it is impossible to draw up a gift agreement without the approval of the husband or wife.

But there are also cases in which a gift is allowed without the consent of the second participant in the marriage:

if the property that the citizen was going to donate was acquired by him during the premarital period, and therefore is considered his personal;
if the donated item (or real estate) went to the owner-donor through one of the ways of gratuitous acquisition: by inheritance or as a gift.

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In all other situations, it is imperative to obtain a document specially drawn up in accordance with the rules established by law, which clearly states that the husband or wife does not object to the donor’s position regarding the gratuitous alienation of their common joint property.

An exception to the rule that everything acquired during a marriage is considered common joint property is the case of drawing up a marriage contract (Article 40 of the Family Code) and a special designation in it about the composition of the property of both partners.

General information

A deed of gift for an apartment is a very common transaction nowadays. The fact is that, financially, such a procedure is much more profitable than drawing up a will.

If you are guided by the laws of the Russian Federation, everything seems simple: when an apartment was purchased before marriage, then any manipulations with it can be carried out independently. If the property is acquired jointly, then the sale or donation of the apartment occurs only if the consent of the spouse is obtained.

However, in this simple procedure (if all the necessary documents are collected, the gift agreement is drawn up in 20-30 minutes) there are a lot of pitfalls. Therefore, when preparing documents, it is necessary to take into account all possible consequences.

When is a spouse's consent required for a transaction?

Accordingly, Part 2 of Art. 576 of the Civil Code, the deed of gift has a limitation in the form of the need to obtain consent from all owners if the subject of the gift is common joint property . And according to Part 1 of Art. 256 of the Civil Code of the Russian Federation, such property is considered to be all property that was acquired by the spouses during the period of marriage.

This is also evidenced by Article 34 of the Family Code. Everything that relates to such property is also described here, namely:

the earnings of both partners from any activity, pension accruals, various types of benefits and payments, financial assistance, etc.;
everything that was acquired during the marriage, including movable and immovable property, securities, deposits, etc.;
if one of the spouses did not contribute to the common income during the marriage and did not have his own earnings at all (due to valid reasons), then he still has exactly the same rights to the common property as the working partner.

When one of the spouses purchases something during the marriage (even if only he paid and the purchase was registered in his name), the second partner will also have the right to this property by law.

Giving a house to your spouse

According to Art. 16 of the Housing Code, a residential building is recognized as an individual building , consisting of rooms and separate auxiliary premises for economic use, designed to satisfy the household and other needs of citizens related to living in the house. A house, as an independent object of law, may well be donated to a spouse under a gift agreement. Since the house is real estate, the transfer of rights to it to the spouse is subject to state registration (Article 131 of the Civil Code).

Additionally

According to Art. 273 of the Civil Code, when the rights to a building belonging to the owner of the land plot on which it stands are transferred, the ownership of the land also passes to the acquirer of the building. Thus, having ownership rights to both the building and the land, the donor cannot give his spouse the rights to one object without transferring rights to the other .

Since the gratuitous transfer of a residential house in favor of a spouse requires subsequent state registration, the transaction of donating a house is always formalized in writing . The right of ownership of the house arises from the donee spouse only after such registration has been carried out (clause 2 of Article 223 of the Civil Code).

The contract itself must necessarily contain a description of the house being transferred , indicating its individualizing features. In particular, the following data must be included in the contract: address, number of rooms, number of floors, area, passport data, condition and other features that distinguish it from other real estate properties.

Please note that spouses may have difficulties when formalizing the donation of a private house that is in their joint ownership . The donation of such property requires the preliminary division of joint property and the allocation of shares of each spouse (Article 254 of the Civil Code), which is carried out by signing an agreement and subsequent registration of shares in Rosreestr.

If the house is in the private (separate) property of the spouses, its donation is carried out within the framework of the usual donation of real estate, taking into account the peculiarities of taxation provided for in clause 18.1 of Art. 217 NK. Note that after donating a house, the donor spouse can no longer claim division of property and allocation of his share, since according to Art. 36 of the Family Code, donation excludes the emergence of a regime of joint property of spouses.

How to obtain consent?

According to Art. 160 of the Civil Code, a document stating that the donor’s spouse agrees with the donation must be drawn up in writing. And according to the rules of Article 163, the partner’s expression of approval regarding the alienation of property that belongs to both participants in the marriage union as common joint property must be notarized.

To prepare a document according to all the rules, you need to contact a notary office , providing the notary with a number of papers, namely:

donor's passport;
certificate of marriage;
documents confirming the donor’s right to the donated property.

The contract itself must be attached to these papers. It must reflect the following information:

comprehensive information about the subject of the transaction;
a note indicating the absence of mutual claims and conditions between the parties to the agreement;
details of the identity cards of both the donor and his husband/wife;
indication of the form of the transaction;
special conditions imposed by the second spouse, under which he agrees to the donation.

You can draw up a document yourself, but then you still need to have it notarized.

Is it possible to donate an apartment in an unfinished building?

State registration of the specified contract (agreement) is carried out at the request of the parties to this contract (assignor and assignee). For government registration is also required: 1) the contract (agreement) itself on the assignment of rights of claim under the agreement for participation in shared construction; 2) a certificate confirming full or partial payment of the price of the agreement for participation in shared construction by the assignor to the developer acting as a party to the agreement for participation in shared construction, indicating the size and timing of payments and issued by such developer or the bank through which these payments were made (Part 10 of Art. 48 of the Federal Law of July 13, 2021 N 218-FZ “On State Registration of Real Estate”).

My mother wants to buy me (my daughter) an apartment in a new building. Next week we are signing a preschool agreement; she will sign for herself, as I am married. Mom would like to immediately make a deed of gift for me, but is it possible to transfer the apartment as a gift if there is only a DDU agreement, the house is rented out only in 2021? The agreement will be registered in Rosreestr.

What to do if consent is not obtained?

In practice, it may happen that it is not possible to obtain permission to transfer an object as a gift from a husband or wife for some reason. And the absence of such consent in necessary cases means the invalidity of the deed of gift .

What to do in such a situation? You can try to get the court to recognize the alienated property as belonging only to the donor. However, this is a rather complicated process. There is another way - division of property in court. In this case, the share of property that the donor intends to transfer to a third party free of charge will be allocated. In case of allocation of shares, a corresponding agreement is drawn up.

In accordance with the rules of civil law governing the process of donation, it is possible to carry out an act of gratuitous transfer of any object considered jointly acquired during marriage only with the consent of the spouse. Otherwise, the deed of gift risks being declared invalid. There are several exceptions to this rule: when property was acquired before the wedding, divided under the terms of the marriage contract, or acquired by the owner free of charge.

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Gift deed for emergency housing

1. The owner has the rights to own, use and dispose of his property. 2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.

Usually, for housing that is subject to demolition due to emergency conditions, a decision of local authorities imposes a restriction on making any transactions with it (sale, donation, exchange). Therefore, I recommend that you first find out if there is such a decision.

Property relations between spouses

According to family law, spouses are considered close relatives. However, such closeness is due to a legal fact - the presence of a marriage, after the termination of which the relationship is lost.

In turn, property owned by a married couple has a special status. Thus, according to Article 38 of the Family Code, all objects of property rights accumulated by spouses over the years of their marriage are recognized as their common property. In relation to such property, spouses have equal rights.

What does this give them?

Thus, being spouses, persons acquire the following special conditions for the disposal of property:

they cannot dispose of joint property without each other's consent;
become close relatives, which means they can transfer property to each other in a special manner;
they are equal owners of all property belonging to them;
may have shares in their joint property if such was established by their agreement or court decision.

As for the relations arising from the conclusion of a deed of gift, the general procedure applies for spouses, with the exception of the specifics established for such a subject composition of the deed of gift as close relatives.

According to tax legislation, an apartment donation agreement is recognized as a receipt of profit by one of the parties, who must pay tax on this profit. But close relatives in this sense have some privileges and are exempt from tax. That is, if a deed of gift is drawn up between spouses, then they may not pay tax.

Design features

In order to officially formalize permission to alienate property in favor of a third party, even a close relative, it first requires oral permission from the second owner.

For further legal registration, the spouses must visit a notary and have with them:

passports;
a document certifying the conclusion of the marriage and its dissolution, if terminated;
certificate of title to residential premises or an extract from the register;
copy of the deed of gift.

After the documents are provided, the notary is obliged to check the rights of the husband and wife to ensure that issuing the permit is a legal step. To do this, all submitted documents and their mandatory list are verified.

Legal requirements! The spouse's consent must only be in writing; without notarization is not permitted by law.

Married

People may be married or divorced. If we are talking about couples who are officially married, then the following points should be taken into account.

Consent is required regardless of who it is given to.
The document does not allow you to dispose of real estate, unlike a power of attorney, it simply provides the right to make a donation.
Permission from one of the spouses can be issued for a specific apartment.

The law does not establish the period for which this legal document is valid. In fact, it is indefinite. The procedure for making gifts to close relatives during marriage is carried out in the same manner as for other persons.

The document being compiled must necessarily reflect the following information:

last name, first name and patronymic of the person giving permission;
his date and place of birth;
the locality where he is registered or registered;
exact details of the marriage certificate;
describes the real estate object for the transfer of which consent is provided.

If the donated living space of a married couple still has owners and the shares are determined, then their permission to draw up a deed of gift is not required.

If the marriage is dissolved

When citizens are officially divorced, they may retain rights to previously acquired property.

This situation is possible in the following cases:

before the divorce, the issue of division of common property was not resolved between people, the allocation of shares did not take place or any legal agreements were concluded;
During the divorce process, the parties did not put forward counterclaims for division of property.

This situation persists until the joint property is divided between them. Or, provided that property rights are transferred to a third party, but only after this issue has been agreed upon by both parties.

When submitting the required list of documents, you must also attach a divorce certificate to the marriage certificate.

You need to know this! If an apartment or house was registered in the name of one of the spouses during family life, and he decides to make a donation after the divorce, then the consent of the ex-spouse will be required. If it is not provided, the transaction can be challenged in court.

Actions of residents after the house was declared unsafe: features of resettlement

dilapidated buildings in which the frame structure may spontaneously collapse;
buildings located on or near landfills;
buildings located in hazardous areas;
buildings located in the power transmission line zone;
destroyed completely or partially;
buildings with excessive noise levels, for example, houses with windows facing the highway;
buildings above which the garbage chute is located.

The main condition for social employers is that they cannot refuse the option offered by the state. In case of refusal, if the house is subject to demolition, the tenants will find themselves on the street, since state hiring does not imply a choice of several premises.

We recommend reading: Property Deduction When Selling an Apartment Under an Assignment Agreement

Gift of personal or separate property

If residential premises are officially the personal property of citizens, or in the process of marriage relations a separate ownership regime was determined, the donation can be made without obtaining consent. The personal property of partners may include the following real estate:

apartments acquired by citizens before the official moment of marriage (the method of acquisition has no legal significance);
residential premises that were re-registered as the property of one of the partners as a result of participation in a privatization transaction, if the second spouse refused to participate in privatization;
apartments given specifically to one spouse, or received by him as a result of inheritance by law or by will.

Note! If, during the marriage relationship, at the expense of the funds of the second partner or common family funds, personal property was significantly improved with a significant increase in value characteristics, the notarized consent of the second spouse will be required for the donation.

What are the requirements for participants in the transaction?

There are mandatory requirements for the donor:

Legal capacity. The one who is aware of his actions and controls his actions can give. For example, a minor cannot donate his share in an apartment.
Mental health and mindfulness. A gift may be invalidated if the person gave under duress or did not realize what he was doing.
Ownership. A person must own what he gives.

Donating real estate between two legal entities is prohibited - that is, one company cannot donate an office to another. But if the office belongs according to documents to the director, and not to the company, the director can donate it to another company. And vice versa: a company can give an apartment to its employee.