Agreement for the donation of a share of a house (with or without a land plot): features of the transaction for the donation of a part of a residential home ownership on the condition of common shared ownership, the need for the consent of other owners

The concept and aspects of donation

General provisions regarding donations are provided for in Chapter 32 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). The essence of a gift agreement, as a general rule, is that one party transfers or undertakes to transfer to the opposite party a certain thing as a gift . It is important to note that the transfer is made absolutely free of charge (there should not be any counter-representation on the part of the donee, otherwise the contract may be declared invalid). This transaction may also include:

transfer of property rights of claim (to the donor or to some third party);
release of the donee from any property obligation (for example, to the donor or any third party).

When donating a piece of real estate, it is necessary to obtain the consent of the gift recipient to accept the gift . The donee has the right to refuse it.

Opportunity to challenge

Information!

A deed of gift can only be challenged by persons who have the appropriate authority and compelling reasons. They must prove that the transfer of property as a gift by the donor violated their rights or interests. The challenge procedure is possible only within three years after signing the deed of gift.

The most popular grounds for challenge include:

the text contains information that violates the law, for example, property is transferred to the recipient only after the death of the donor;
the donor does not have the rights to complete the transaction, for example, he is not the owner of the property or is represented by a minor citizen;
the transaction is fictitious;
the donor drew up the agreement under pressure or using threats;
there is no written consent from the donor's spouse.

If there is evidence and compelling reasons, the court makes a decision to cancel the transaction, so the share in the house is returned to the donor.

The concept of shared ownership

A share is an abstract given, a set of rights in relation to a specific thing. Shared ownership is considered as a concept that is closely related to the concept of common property (such a right arises in relation to a thing that is indivisible by nature or by law, or in relation to a thing that is divisible, but owned by several persons in cases where this is directly established either by law or by agreement sides). It should be noted that, in contrast to joint ownership (which by default occurs, for example, between spouses), the shared ownership of a thing by several persons presupposes a strict definition of the shares of co-owners .

The size of shares in shared ownership can be established taking into account the provisions of the law or on the basis of an agreement concluded between the co-owners . If the size of the shares is not determined, it is recognized as equal (as follows from paragraph 1 of Article 245 of the Civil Code of the Russian Federation).

Is it possible to donate a residential building without a land plot?

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Vinnitsa
Dnieper
Zhytomyr
Zaporozhye
Ivano-Frankivsk
Kyiv
Kropyvnytskyi
Lutsk
Lviv
Nikolaev
Odessa
Poltava
Smooth
Sumy
Ternopil
Kharkiv
Kherson
Khmelnitsky
Cherkasy
Chernigov

A deed of gift for a house is correctly called a deed of gift. This is an agreement under which the ownership of real estate passes from the donor to the donee. The main difference from other agreements is gratuitousness: under the terms of the agreement, the donor does not claim payment, compensation or any services from the recipient. The terms of payment for property are specified in contracts of employment, lifelong maintenance, and purchase and sale. The procedure for registration, document requirements and other key features of the gift agreement are stated in Chapter 32 of the Civil Code of the Russian Federation. It contains strict prohibitions - according to Article 575 of the Civil Code of the Russian Federation, a gift cannot be issued:

Speed - an agreement on the donation of property can be drawn up much faster than inheritance; the entire transaction takes on average 2 weeks. For comparison: in the case of taking over the inheritance, you will have to wait for the first six months after the death of the heir.
Savings - if the donor and recipient are close relatives, you will only need to pay the state fee for registering the transaction in the Register. If not, you will have to pay tax.
Simplified procedure - you can draw up an agreement yourself, without the participation of a lawyer, and you only need to register the agreement in one state body.
The right to choose - in the contract you can specify the period when it comes into force, or the conditions under which it will be valid.
Personal property - property received under a gift agreement is not considered jointly acquired property in a marriage. During a divorce, the spouse has no right to lay claim to it.

Irreversibility - unlike a will, a gift cannot be changed. You will not be able to change the document, then simply take it and give the house to another person: in order to cancel the validity of the document, you will need compelling reasons.
Requirements - if the agreement is drawn up incorrectly, it will not be registered with the Registration Department.
Challenging - in some cases provided for by law, a gift can be contested.

The process of drawing up an agreement is very simple. Below are step-by-step instructions on where and how to draw up a deed of gift for a house and land.

Prepare the documents for donating a house and land in advance. It is better to do this before drawing up an agreement, so that you can quickly register the property right in the Register.

You will need:

originals and copies of identity documents of all participants in the transaction - passports of citizens of the Russian Federation and Taxpayer Identification Number;
a document confirming the donor’s ownership in two copies: for the land and the house - for example, a purchase and sale agreement, an extract from the Unified State Register of Real Estate;
cadastral passport of the house and land plot, including displaying all the buildings present on the plot;
a certificate from the BTI, which indicates the estimated value of the property being transferred - optional, sometimes it is sufficient to indicate the value written in the cadastral passport;
a certificate confirming the absence of arrears in payment for the land allotment - it must be obtained from local authorities; house book with registered people.

In case of special conditions, other documents may be required:

written consent of the guardian or parent, if the recipient is a minor;
written notarized consent of the donor’s spouse, if the house is jointly owned;
a notarized power of attorney, if the donor or recipient acts not themselves, but through an authorized person.

Features of donating a share of a residential building

A residential building is an individually defined building consisting of living rooms and other auxiliary premises. This type of real estate is most often jointly owned by several persons.

For your information

It is much easier to divide a residential building than an apartment into shares, assigning each share its own owner. In addition, owners of shares in the ownership of a residential building can live quite happily side by side, even without being relatives, which, as a rule, cannot be said about strangers living in the same apartment.

The donation agreement for a share of a residential building is as follows: the donor transfers or undertakes to transfer to the opposite party part of the ownership of the residential premises , and such a transfer is carried out absolutely free of charge. If the transaction represents a promise to transfer part of the house to the donee, it is necessary that such a promise:

was done in writing (as follows from paragraph 2 of Article 574 of the Civil Code of the Russian Federation);
reflected a clearly expressed intention to transfer real estate as a gift (the subject of the donation is subject to maximum specification).

If among the share owners there are minor children (under 14 years of age) or citizens recognized by the court as incompetent, then making a gift on their behalf by legal representatives is prohibited by law . It is also unacceptable to donate part of a residential building in favor of:

workers of social, medical and educational organizations , persons in such institutions, as well as their spouses or relatives;
state and municipal employees (if this is related to the official position or official responsibilities of such employees).

Important

The donor has the right, independently, and without notifying the other owners, to donate the share of the residential building that belongs to him. In this case, the rule on the preemptive purchase of the alienated share of housing by the remaining participants in the property does not apply.

When donating part of a house, it is necessary to stipulate whether the contract will transfer ownership of the part of the land on which the house stands.

Example

P. gave A. a part of a residential building, but did not indicate in the deed of gift whether that part of the land plot that belongs to him goes to A. The dispute was resolved only in court, where it was established that only part of the house was donated, while P. remained the owner of the land plot, who had to draw up an additional deed of gift for the plot.

What should be included in the contract?

Since donation is a legally significant action with any object of private property, the concluded agreement must meet certain requirements.

Such requirements according to the text of the agreement, as well as its details, will include the following:

Mandatory indication of the date and place of the transaction (both in simple written form and in the version that will be concluded with a notary, these data must be indicated without fail so that in the event of controversial issues arising from the results of the transaction, it is possible to easily establish at what point the controversial situation arose and, if necessary, recognize such a transaction as void);
Parties to the agreement being concluded (when drawing up the text of the gift agreement, the indication of the parties to the agreement is also mandatory in order to avoid substitution of the donee. In addition, when indicating the participants in the transaction, it is also necessary to record the passport details of both persons in order to determine the authenticity of the signatures on the final document drawn up);
Subject of the agreement (in this section it is necessary not only to indicate what exactly is being donated - part of a land plot, a house, a share in some property, etc.), but also its physical characteristics (full address, cadastral number), since this data will help subsequently identify the object of ownership and process the transfer of this right;
Existing encumbrances or possible conditions of transfer (for example, the donor can indicate that the property will be transferred to the donee only upon the occurrence of certain conditions: reaching the age of majority, wedding, etc., and also indicate what requirements he puts forward regarding the transferred property: live in the territory of the specified property before a certain period of time, the ability to use this property under any circumstances, etc.);
Details of the parties (in this section, the passport details of both parties are indicated in a more detailed form - if we are talking about a transaction between individuals, and basic registration data - if one of the parties to the agreement is a legal entity).

If all parties agree with the concluded agreement, then it is certified by their personal signatures.

A sample agreement for the donation of a share of land and a share of a house can be downloaded here.

Form of agreement for donation of part of a house

When alienating a share of a residential building, the deed of gift must be expressed in writing . The actual transfer of a gift may consist of a symbolic delivery of keys or title documents to the recipient.

A deed of gift for real estate does not have to be executed through a notary , however, when voluntarily executed by a notary, the parties receive guarantees of the legality of the transaction, as a result of which it will be difficult for interested parties to challenge it. In addition, from March 1, 2013 , in accordance with paragraph 3 of Art. 574 of the Civil Code of the Russian Federation, state registration of a gift is not mandatory .

Contents of the donation agreement for a share of a residential building

An agreement on the donation of part of a residential building must include the following elements:

Date, place of document preparation;
Names of the parties;
Subject of the transaction (information about the house: name, location, area and other characteristics) indicating the specific size of the transferred share;
The cost of the share transferred under the agreement;
Rights and obligations of the parties under the contract, as well as their responsibilities;
Information about persons registered in the house, as well as about persons who retain the right to use the premises after its alienation under a gift agreement;
Details of the donor's certificate of ownership;
Date of transfer of the gift;
An indication that the donor is legally capable, understands the essence and consequences of the transaction, and is familiar with Articles 572-578 of the Civil Code of the Russian Federation;
The presence of encumbrances on the real estate transferred as a gift;
The procedure for incurring expenses associated with the registration of a gift.

Legislative regulation

Russian legislation allows transactions involving the gift of property. It is not prohibited to enter into even consensual transactions that assume that the property will be transferred not at the time of signing the agreement, but in the future. The rules for drawing up deeds of gift are given in Art. 572 Civil Code.

Information!

The deed of gift is considered completed only after the share of the house and land has been re-registered as the property of the recipient of the gift.

Registration of donation of a share of a residential building

After concluding the donation agreement, you need to formalize the transfer of ownership of the real estate share. After signing the deed of gift, the parties must contact Rosreestr .

Attention

The donee and the donor are required to contact the registration authority together by submitting an application for registration. Within no more than 10 days, they must receive completed title documents.

To register property rights, the following package of documents :

gift agreement (in 3 copies);
passports of the donee and the donor;
documents of the donor for the transferred property;
technical documentation for the house;
documents for the land plot (cadastral passport and certificate of ownership);
certificate about those persons who are registered in the house;
receipt of payment of state duty in the amount of 2000 rubles;
registration application, which must be signed by both parties in the obligatory presence of a representative of the registration authority
power of attorney on the basis of which either party acts (if any).

How the deal is completed

I published my instructions on a separate page -. It doesn’t matter the number of participants, whether they are relatives to each other, on what plot the house is located (individual housing construction, private household plots, garden, country house, vegetable garden, etc.) - my instructions are suitable for everyone.

In short, you need to draw up a gift agreement and submit this list of documents for registration of the transaction.

About the gift agreement

— I posted samples and contract forms here. There she explained in detail how to draw it up correctly, how many copies to make, when to sign, and what points in it are optional.

I also advise you to carefully read the article. 572 of the Civil Code of the Russian Federation.

We submit the documents to the MFC or the Federal Registration Service

If there is a MFC in your locality, go there. If not, go to the offices of the Federal Registration Service (in common parlance - the Registration Chamber). Moreover, the extraterritorial principle of accepting documents is now in effect. You can come to any branch, regardless of the location of the property and the residence of the participants. But I still advise you to call the branch you like and ask about the service. After all, the extraterritorial principle has been introduced since May 2021.

Based on the submitted gift agreement, the transfer of ownership from the current owners (donors) to the donees will be registered. The state duty is 350 rubles (clauses 24 and 25, clause 1, article 333.33 of the Tax Code of the Russian Federation). According to paragraphs. 1 and 2 paragraphs 1 art. 16 of the Federal Law of July 13, 2015 N 218-FZ, the maximum registration period is 9 working days when applying to the MFC and 7 working days when applying directly to the Registration Chamber. It takes longer at the MFC, because they are only intermediaries - they accept applications and send everything to the same Federal Registration Service.

At the end, all participants will be given their own copy of the agreement marked with state registration. The recipients will be given 2 extracts from the Unified State Register of Real Estate – for the house and for the plot. In them it will be possible to see that the recipients are now new owners. In section No. 2 in the line “Copyright holder” their full name will be written.

If the recipients are minor children

In the gift agreement, you must indicate the representative of the child-donee - one of the parents, guardian or trustee Art. 26 and art. 28 Civil Code of the Russian Federation. If a child is given to a child by one of the parents and the spouses are married, we indicate the second parent as the child’s representative under the contract. If a gift is made by both parents, either parent can be the child's representative. If the parents are divorced or there is no second parent (died, not indicated on the birth certificate, etc.), the first parent can be both the donor and the representative of his child-done - letter of the Federal Tax Service dated June 21, 2017 N 2664/06 -08. If a child is given real estate by, for example, his grandparents, his representative may be one of his parents (guardian). It's better if it's the mother.

For a child under 14 years of age, the gift agreement is signed by his representative, who is indicated there - Art. 28 Civil Code of the Russian Federation. The presence of the child is not required anywhere. A child from 14 to 18 years old signs the contract himself + his representative signs as consent - Art. 26 Civil Code of the Russian Federation. Then both go and submit documents for registration.

Taxation when donating a share of a residential building

The transfer of real estate as a gift, as a rule, is the basis for paying income tax in the amount of 13% of the market value of part of the real estate. However, if the donor and recipient of a share of a residential building are close relatives (spouses, children and their parents, grandparents and grandchildren, brothers and sisters, including half-siblings, as well as adoptive parents), then those received as part of the donation income is not subject to tax . This is directly stated in clause 18.1 of Art. 217 of the Tax Code of the Russian Federation.