How to draw up a deed of gift to donate your share in a privatized apartment?

Changes in legislation when donating a share

Giving a share in an apartment, in itself, involves taking into account a number of nuances and interests of a large number of people. Therefore, drawing up such a deed of gift is often more difficult. When drawing it up, you need to know the requirements of the law and changes in it.

Previously, drawing up a donation agreement for a share in an apartment was simpler. At the same time, it was more difficult to control his conclusion. This led to a lot of deception by scammers. It was difficult to punish criminals in such cases, because for this it was necessary to prove the fact of concluding a deed of gift under duress. But usually there were no facts indicating this, because these documents were concluded independently.

For this reason, changes were made to the legislation. Now only the gift agreement certified by a notary or an employee of Rosreestr or MFC is considered valid.

Since these changes, the number of fraudulent activities in the real estate industry has decreased. So we can say with confidence that the simplification of the procedure for registering a deed of gift will not happen in the near future.

FAQ

Question

— What to do with debt for utilities?

Answer

— The debt for utility services does not relate to the apartment itself, but to the person who lived in it when this debt arose. Therefore, donation can be made even if there is a debt for public services. If the debt exceeds the maximum standards, the housing will be seized, and it will be impossible to sell or donate it. If the donee agrees to pay the debt himself, this should be indicated in the deed of gift.

Question

— Can part of the share be donated?

Answer

— Each shareholder can dispose of his property as he wants, including donating part of the share. You can donate 5 percent of the share, if necessary, register the person as the owner.

Question

— Do you need consent from other owners?

Answer

— The Civil Code states that each owner must obtain consent from the others if he intends to carry out any transaction with his share. But this does not apply to gratuitous transactions (and therefore to donations). You can donate a share without the consent of other shareholders, but when selling you cannot do without it.

Question

— Is it possible to give a share to several people?

Answer

— A share of an apartment can be gifted to two or more persons. In this case, the gift document indicates certain shares for each recipient. If the shares are not allocated, they will be divided equally.

Question

— What is the minimum share that can be donated?

Answer

— For the purpose of registration, any share can be donated. And for one person to live, at least 6 square meters must be provided.

Question

— How to donate a privatized apartment?

Answer

— A privatized apartment has one full owner. For this reason, the consent of other persons for transactions involving this apartment is not required for him. This is a more convenient situation than when the apartment has many owners. Also, a share in a privatized apartment can be donated.

Is it possible to draw up a share donation agreement without a notary?

According to Article 42 of the Law “On State Registration of Real Estate”, contacting a notary is not mandatory. You can collect all the necessary documents yourself, as well as draw up a gift agreement. And with all the papers, contact Rosreestr or the MFC to register the transaction.

Giving a share in an apartment to a close relative without a notary makes sense from the point of view of saving money on notary services. But if donation occurs between strangers, it is better to contact a specialist for help. This will avoid mistakes and problems in the future.

Procedure

Transaction participants must perform the following actions:

1. Collect the necessary documents.
2. Prepare a draft agreement.
3. Contact a notary.
4. Prepare a deed of gift.
5. Register ownership.

Procedure

Initially, the parties to the transaction need to contact a notary office. You can develop a draft agreement yourself or take it from a notary.

To conclude an agreement, you will need the appropriate papers. The notary establishes the identities of the participants and verifies their legal capacity.

At the same time, the parties to the agreement are explained their rights/responsibilities. The deed of gift is considered executed from the moment it is signed by the parties.

Data on the conclusion of the contract are entered into the state register. To avoid mistakes, you need to carefully check the text of the agreement.

Documentation

To prepare a deed of gift you will need:

1. Passports of the donor and recipient.
2. Documents for property (extract from the Unified State Register, cadastral passport).
3. Extract from the house register.
4. Consent of the spouse to the alienation of a share of the premises (if necessary).
5. Confirmation of relationship.

If the latter document is available, the parties to the agreement are exempt from paying personal income tax (Article 217 of the Tax Code of the Russian Federation). The rule applies only to close relatives.

Expenses

At the conclusion of the deed, the parties to the deed incur certain costs. How much it costs to register a donation depends on the market price of the object.

For notarization of the transaction you will have to pay 0.5% of the value of the share. The minimum collection amount is 300 rubles. The maximum rate is 20 thousand rubles. The state duty is usually paid by the recipient.

Notary services are paid in addition to the basic tax. On average they amount to 5 thousand rubles. Details need to be clarified at the notary office.

Registration of rights is a separate cost item. When re-registering premises in an apartment building, the tax amount is 200 rubles. When registering an entire apartment, the copyright holder pays 2 thousand rubles.

Taxes

The only tax when concluding a deed of gift is personal income tax. Its size for residents of the Russian Federation is 13%. Non-residents pay 30%.

Who is exempt from paying income tax? Citizens who are close relatives do not pay personal income tax. This includes parents, children, spouses, brothers/sisters. The benefit also applies to grandparents.

Deadlines

You can conclude a deed of gift at any time. The parties to the contract determine the time to contact the notary independently.

How long does it take to register ownership? The beneficiary can submit papers at any time.

However, delaying the procedure is fraught with certain consequences. In the event of the death of the donor, the beneficiary will have to prove his rights to the property in court. Otherwise it will become part of the inheritance.

Registration of deed of gift

The procedure for drawing up an agreement is regulated by law. Initially, the parties need to agree on the key points of the agreement. One of them is the right to refuse the transfer of a gift. The reason may be the deterioration of the property status of the donor.

Next, the parties to the transaction should visit a notary. The link goes to the location of the apartment. You need to have documents with you. The notary will calculate the amount of the fee and provide details for payment. You can make a payment at any bank in the country. Notarization of the transaction occurs after payment of the fee.

The deed of gift is drawn up in triplicate. One is given to the donor, the second to the beneficiary, and the third remains with the notary.

When is it necessary to contact a notary?

However, there are several situations in which a gift transaction will not be registered without the participation of a notary. This is necessary when:

• The apartment has several owners. It does not matter what share the donor has in it and to whom he gives it;
• If a share of an apartment acquired during marriage is donated. That is, even if only one of the spouses is listed as its owner, the very fact of acquiring such real estate during marriage requires the consent of the other spouse to the transaction;
• When one spouse gives a share in an apartment to the other spouse. In this case, the notary draws up an agreement on the division of property, which is equivalent to a marriage contract.

After the donation agreement has been certified by a notary, it must be submitted to the MFC or Rosreestr for registration. This can be done by the notary himself, but for an additional fee.

What rights and responsibilities do the parties have?

Property can only be given with the consent of the recipient. If he does not want to receive a share of housing as a gift, refusal is possible. There is no need to explain the reasons.

Donation is a gratuitous transaction. Nothing passes to the donor from the donee. If the latter promises payment to the donor, it cannot be included in the gift agreement, otherwise it will lose its legal force.

Cancellation of a deed of gift is a very complex procedure. In most cases this is not possible. After completion of the transaction, the donee receives the status of a full owner of a share of the housing, and the donor is deprived of all rights to it.

The law allows you to create a deed of gift as a promise to transfer shares of real estate after some events occur. For example, after the recipient gets married or reaches adulthood. Such agreements must be treated with the utmost care in order to draw them up correctly. If the donee passes away before the deed of gift comes into force, the rights to the share will pass to his heirs.

When can you arrange it yourself?

There are situations when it is not necessary to spend money on notary services. For example:

• If a person solely owns an apartment, and he got it before marriage. In this case, he has the right to give or sell it at his own discretion, without asking the consent of other people;
• When transferring an apartment purchased with maternity capital to children. But it is important to divide shares in the property among all children. And sometimes this can be difficult.

To avoid them, you need to either use the services of a notary, or use the right to apply to Rosreestr or the MFC. That is, an agreement is drawn up independently, which indicates what share goes to each child, and what remains to the parents. But such a document must be signed in the presence of an employee of the registration authority.

Why can they refuse registration, what should I do?

Sometimes registration may be refused. There are some reasons for this:

1. The contract was drawn up incorrectly or during inspection, inconsistencies were found in it.
2. Information about the apartment does not match the real data:
   the area is incorrectly indicated, the cadastral number does not correspond, the layout is not reflected in the technical passport;
3. The donor does not have documents confirming ownership.

If you refuse, you should understand all the errors. After eliminating them, you need to re-execute the contract and try to register it. To avoid mistakes, it is better to contact a notary immediately.

Contents of the deed of gift for a share

Whether the deed of gift is drawn up correctly depends on whether it will be registered. In case of errors, registration will be refused, but the money for the state fee will not be returned.

Therefore, if in doubt, it is better to immediately contact a notary or lawyer for help in drawing up a gift agreement for a share in an apartment. This will save time and avoid mistakes in drawing up a gift agreement.

Essential terms of the agreement

Each contract must include a number of mandatory data. For a deed of gift it is:

• Passport details of those signing the agreement, their addresses;
• All technical and other data about the property being donated. In particular, the division into shares must be indicated if they are owned by different owners.

Additionally, if desired, you can order an assessment of the apartment and the share in it. Such services are provided by independent real estate appraisers.

Rights and obligations of the parties

In this section of the agreement, it is important to indicate the rights of use of the apartment by the parties to the transaction. For example, the donor can indicate that he will live in it until his death or that, on the contrary, he will leave the apartment but remain registered in it.

All such nuances need to be written down in particular detail in order to avoid conflicts between the donor and the recipient in the future.

Who has the right to donate

It is important to understand that not every person can give a share in an apartment, just as not every real estate can be donated. Here are the restrictions the law imposes:

• Only the owners can donate an apartment or a share in it. That is, this property must be privatized;
• One spouse can donate a share in the common property only with the consent of the other spouse. Such consent is drawn up by a notary;
• If the transaction affects the interests of minors and incompetents, then the consent of the guardianship authorities will be required;
• You cannot donate an apartment that is collateral in the bank.

Therefore, before proceeding with the registration of a gift transaction, you need to make sure that you have the necessary rights to the apartment and that there are no restrictions on its transfer as a gift.

Who are the donees?

These are people who receive property as a gift. They have the right to agree to accept the gift or refuse it. They also have the right to dispose of the received property at their own discretion, although in the case of real estate there are a number of restrictions.

Methods

The donation of part of the housing occurs by concluding an agreement. However, sometimes citizens have to go to court. The reason is the death of the donor. If the recipient did not have time to register ownership, then the property of the testator is included in the inheritance. The legal successors of the property are the family members of the deceased subject.

Example. The plaintiff went to court. He asked to recognize the deed of gift as concluded, and the certificate issued by the notary as invalid. The plaintiff also asked to cancel the certificate of ownership. Justification of the requirements - a gift agreement was drawn up between the plaintiff (son from his first marriage) and the late citizen K. But the plaintiff did not have time to register ownership of the premises due to the death of the donor. The defendants were the heirs of the deceased subject. They knew about the conclusion of the gift agreement, however, they turned to a notary to register the inheritance. As a result, the plaintiff lost the property donated to him. The legal successors registered the ownership rights with the Federal Registration Service of the Omsk Region. Two defendants admitted the claims. Another claimed that he knew nothing about the existence of a gift agreement. Moreover, the agreement was not certified by a notary. Therefore, he asked to dismiss the claim. However, the court did not agree with the defendant's opinion. The deal was concluded before amendments were made to Federal Law No. 172-FZ. Therefore, notarization of the agreement was not required. The claims were satisfied.

Giving to relatives

There are practically no differences between gifts to relatives and non-relatives. The gift agreement is drawn up in the same way between any people participating in a transaction of this kind. But when donating a share of an apartment between close relatives, there are usually fewer conflicts in the future. This is due to close family ties. Also, in the case of a related gift, it is often indicated that the donor will live in the donated apartment for some time and other conditions associated with the use of the donated housing.

For minor children

You cannot enter into a gift agreement directly with a minor child. Until the child reaches 14 years of age, the parent or guardian of the child signs the deed of gift. And after reaching 14 years of age, a guardian and a child.

What should the deed of gift contain?

When drawing up a deed of gift for a share of housing, it indicates:

1. The very share that will be donated, in the exact designation. The share can be transferred to the donee in whole or in part.
2. Data from the passports of both parties.
3. The exact address of the apartment that includes the share involved in the transaction.
4. Exact quadrature donated. It is calculated from the total area of ​​the housing.
5. Floor location of the apartment.
6. Number of floors of the house.
7. Estimated value of the share (if necessary).

The nuances of donating different types of apartments

The category of living space to which the property specified in the deed of gift belongs is of great importance.

Apartment with mortgage

It will not be possible to donate such an apartment, because this requires the consent of the bank. But the bank will not give such consent, because it will threaten the repayment of the loan. Therefore, it will be possible to donate such an apartment only when the mortgage payment ends.

Communal apartment

In essence, a room in a communal apartment is a share in an apartment. It can be sold and given away. Consent is only required from the co-owner, if there is one.

Privatized apartment

The owner has the right to donate and sell such an apartment at his personal discretion. You only need to obtain consent from interested parties, if any.

Not privatized apartment

Such an apartment must first be privatized. Otherwise, you won’t be able to give it away. Features of the legal status of the apartment play an important role. Therefore, they need to be taken into account before drawing up a gift agreement.

Who has the right to donate

Naturally, there is a certain category of those who can donate a share of an apartment. Not every person can do this, even if they want to.

1. Only owners can donate real estate or shares in it. That is, to complete the transaction, the apartment must be privatized. If a person lives under a social tenancy agreement, then he cannot dispose of this property. First, you should transfer your property into ownership.
2. Spousal owners will not be able to donate their share unless the spouse’s official consent to the transaction has been received. Therefore, first, the husband and wife need to agree among themselves, then draw up a consent and have it certified by a notary.
3. Difficulties may arise when the rights of children with incapacities are affected. In this case, you cannot do without the relevant authorities, for example, guardianship rights and trusteeship.
4. It will also not be possible to donate real estate pledged by the Bank.

So those wishing to donate their share in the apartment will have to make sure that they have rights to this property and that there are no restrictions. All obstacles must be removed while maintaining law and order.

Donation costs

People often do not consider the cost of a gift before the transaction process begins. As a result, they are unpleasantly surprised by the considerable costs of such a transaction.

Cost of notary services

Notary services are not cheap. In addition, you will have to pay for each signature and for each document drawn up:

• You need to pay for the consultation, drawing up the gift agreement and its copies;
• Certification of signatures on documents;
• Actions to certify the deed of gift itself.

The payment amount is based on the tariffs of the given region and also depends on the cost of the donated housing. Therefore, the notary is interested in the highest cost of his assessment.

For transactions between relatives, preferential rates are established. But in this case, you need to prove a close relationship with documents.

In general, it is better to consult a notary about the cost of his services before starting the registration procedure.

State duty

The fee must be paid before submitting documents for registration. Who will pay it, the donor or the recipient, is decided by the participants in the transaction themselves. Usually, of course, the recipient of the apartment as a gift pays.

The fee is 2000 for individuals and 22 thousand for legal entities.

To make the registration cheaper, it is better to seek help from a lawyer rather than a notary (except in cases where a notary’s signature is required).

Cost and processing time

For registration of papers with a notary, you must pay for services and fees. The cost of services depends on the region where the transaction is made. Can be from 2,000 to 7,000 rubles. The duty is 0.5% of the cadastral value of the property.

The amount of the notary fee is determined in paragraph 5 of clause 1 of Article 333.24 of the Tax Code of the Russian Federation : not less than 300 rubles. and no more than 20,000 rubles. The fee for state registration of property rights is 2,000 rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation).

If property becomes the property of several persons, the duty is paid in proportion to the share of each (Clause 2 of Article 333.18 of the Tax Code of the Russian Federation).

The following are exempt from paying state fees for registering property rights:

• low-income citizens (clause 15, clause 1 and clause 2, article 333.35 of the Tax Code);
• individuals included in the housing renovation program (clause 1 of Article 333.35 of the Tax Code of the Russian Federation, from November 27, 2021, clause 17 was added).

The deadlines for preparing documents are determined by Article 16. Part 1 of Law 218 Federal Law:

• Rosreestr – 7 working days;
• MFC – 9 working days.

Where to apply and register

Registration of a gift transaction occurs only in Rosreestr. All documents can be delivered there in person, either through the MFC office, or through a notary.

At the notary

A notary can handle the donation process from start to finish. But, naturally, the additional service of registering a transaction with Rosreestr will incur additional costs.

At the MFC

Any such regional center will accept documents and issue a receipt in return. Next, the center employee will transfer the documents to Rosreestr.

In Rosreestr

You can contact Rosreestr yourself. There they will check whether all documents are in place and accept them for registration.

Registration of ownership

Real estate transactions are subject to state registration. The recipient of the gift can contact one of the branches of Rosreestr. You can also submit papers through the MFC. Registration of property rights occurs at the request of the copyright holder.

You need to attach to it:

• gift agreement;
• property documents;
• identification;
• excerpt from the house register;
• written consent of the co-owners (not always);
• confirmation of payment of the duty.

Note. The consent of the co-owners is required when alienating part of an apartment that is jointly owned by citizens. If the property is in shared ownership, then the consent of the co-owners is not required.

Their legal representatives act on behalf of children. If the copyright holder is under 14 years of age, a birth certificate will be additionally required. Children aged 14 years apply independently. The only condition is the written consent of the parents.

The registration procedure takes from 5 to 12 days. The exact deadline depends on two factors - the method of submitting documents and the type of action being registered.

The transaction is considered completed after the issuance of an extract from the Unified State Register to the beneficiary.

What documents may be needed

There is a standard list of documents for registering a deed of gift. But in reality, additional information may be required in each specific situation.

Main documents:

• Passports;
• Donation agreement in several copies (one each for the parties to the transaction and the registering authority);
• Certificate of ownership of a share of real estate;
• Notarized consent of the spouse or guardianship authority, if required.

A deed of transfer of a share in an apartment is not required, but can be drawn up at the request of the parties.

Agreement conditions

The donation is free of charge. There should be no counter-conditions in the agreement. Otherwise it can be challenged.

The contract must contain a clear description of the alienated property. The transfer of the share is carried out during the lifetime of the owner of the object.

Violation of any clause makes the gift agreement void or voidable.

Is the consent of the co-owners required for the alienation of part of the premises? Typically, consent is required in case of sale of property (Article 250 of the Civil Code of the Russian Federation).

When concluding a gift agreement there are some nuances. Only the allocated share can be given as a gift without the consent of the co-owners. An object in joint ownership can be donated only with the consent of the co-owners.

Is there a gift tax on a share in an apartment?

Since receiving a share in an apartment as a gift is considered profit, you must pay tax on it.

In the case where the gift was made between close relatives, there is no need to pay tax and there is no need to declare such income.

Everyone else needs to pay 13% of the value of the property received. If the value is underestimated, the tax office will make demands based on market valuation.

Also, before April 30, you must submit a declaration of income related to receiving property as a gift.

Who are the donees?

The category of people who are presented with a gift is called the “gifted”.

By their own free will, they accept any property as a gift, bear responsibility for it and have the right to dispose of it.

Although, as far as real estate is concerned, there may be some nuances.

Giving to relatives

There is no particular difference between donating real estate to a relative or a stranger. Although, according to statistics, if the choice falls on the recipient, with whom there is a close family relationship, then fewer family conflicts occur on this basis, because not all relatives may agree with the donor’s decision.

The donation agreement for a share of an apartment between close relatives is concluded on a general basis. But it most often contains clauses based on which the donor has the right to live for some time on the territory of the former property or be registered on it.

For minor children

It will not be possible to draw up an agreement for donating a share of an apartment to minor children by contacting directly with the recipient. If a child is under 14 years old, then it is considered that he cannot make informed decisions and all issues are decided for him by a guardian or parents.

When a young person reaches 14 years of age and receives a passport, he himself signs the gift agreement, but since he is still far from coming of age, an additional signature of his parents or guardians is required.

To unauthorized persons

One feature worth considering for those who are considered a distant relative or stranger is the property tax, which currently amounts to 13% of the amount specified in the agreement.

The category of close relatives and family members includes half-brothers and sisters, parents, grandparents, children, and spouses.

In principle, recipients do not risk anything by receiving a share in an apartment or other real estate as a gift. Donors should pay more attention to the formalities, as well as the understanding that the completed transaction will be irreversible.

However, do not forget about paying tax fees and submitting your declaration on time.

How to terminate a deed of gift for a share in an apartment

It happens that for some reason they want to terminate the deal. In the case of donating property, this is very difficult to do. But, nevertheless, there are cases when this is possible:

• If it can be proven that the gift agreement was signed under duress;
• If there is evidence of violent actions of the recipient towards the donor;
• If the recipient of the gift has brought it to such a state that the property has fallen into disrepair and may collapse.

In any case, the decision to terminate the gift transaction can only be made by the court.

Where should I go to apply?

Current legislation allows donations to be made without the participation of representatives of legal or notary offices, but contacting a notary office will help prevent mistakes when completing a transaction.

Both public and private notaries can be involved in the donation procedure; the difference can only be in the cost of services, because private notaries charge a much higher fee.

Additionally, you will have to go to the Registration Chamber or the MFC to register the deed of gift, since the deed of gift itself, from a legal point of view, is considered only an intention to donate a share of the apartment; the property is transferred into the ownership of one of the spouses only after registration.

We have prepared other useful materials about the nuances of registering a deed of gift between spouses. From our publications you can find out whether spouses during a divorce can claim real estate given to one of them during marriage.

How much money will you have to spend on this procedure?

You will have to spend money on notary services and a state fee of 2,000 rubles. Payment for notary services is calculated from the cost of the share of the apartment being donated (or the entire apartment being donated).

Here the amount is determined according to the individual scheme offered by a particular notary office. Usually this is from 0.2% of the value of the donated property or more.

Is it taxable?

Since the donor does not have any monetary benefit and the transaction between relatives is gratuitous, then, by virtue of Article 217 of the Tax Code of the Russian Federation, people related by close kinship are exempt from the obligation to pay 13%. This is mother, father, grandmother, grandfather, brother, sister.

Advantages and disadvantages

Before comparing the types of transfer of ownership, you need to understand what are the advantages and disadvantages of both procedures?

Donation of a share in an apartment

Advantages of a gift agreement:

1. Exemption from tax for close relatives and spouses

One of the main advantages of donating a share in an apartment is the absence of tax obligations for close relatives (clause 18, clause 1, article 217 of the Tax Code of the Russian Federation). In other words, the gift is not subject to income tax in the amount of 13% of the value of the share. Of course, this benefits primarily the recipient relatives.

1. Waiting period for sale

Looking ahead, we note that a share received as a gift can be sold much faster than one purchased for money. The waiting period will be only 3 years, and not 5 years, as in the case of purchase and sale (only in the case of consanguinity). If you sell a share of an apartment before the 3-year period, you will have to pay 13% personal income tax.

1. Lack of notarization

The new rules oblige transactions with shares to be certified by a notary. However, there are exceptions when you can donate part of the housing without contacting the office clerk. For example, if you own an entire apartment and allocate a ⅓ share to a relative. The second option involves donating to a child from the spouses’ jointly acquired property (see “How to donate a share in an apartment to a minor child?”)

1. Lack of consent of other co-owners

If the donor owns square meters and intends to donate them to a third party, notification to the other owners is not required. An exception is the allocation of a child’s share in the joint property of the spouses. The rule of preemption does not apply here either, since this is a free transaction.

1. Transfer of ownership

As soon as the parties sign the gift agreement and formalize the transaction in Rosreestr, the new owner will be able to dispose of the share in the apartment donated to him. There is no need to wait for other events, as in the case of inheritance.

1. Spouse's personal property

The share of the apartment received as a gift will remain the property of one of the spouses (Clause 1, Article 36 of the RF IC). This part of the housing cannot be included in the status of jointly acquired property, which means it is not subject to division.

The main disadvantages of a gift agreement:

Tax rate

Registration of a gift in favor of third parties obliges them to pay income tax - 13% of the cadastral value of the apartment’s share. Foreigners (non-residents of the Russian Federation) pay an even higher tax - 30% of the price of the gift.

Challenging

Donation has a whole list of requirements, violation of which may lead to the cancellation of the transaction. Most often, disputes concern gratuitousness, the sanity of the donor, arrests and mortgages on the apartment. Moreover, any interested person, including guardianship authorities and the prosecutor, can challenge the donation.

Prohibition on donations to organizations

The law stipulates the composition of participants in the donation - it cannot include commercial organizations and other bodies (clause 4, clause 1, article 575 of the Civil Code of the Russian Federation).

Difficulty with donating marital property

Common joint ownership limits free transactions with shares and the apartment as a whole. Before alienating property in favor of third parties, the wife must obtain the consent of her husband, and vice versa (Article 576 of the Civil Code of the Russian Federation).

Selling a share in an apartment

Advantages of buying and selling a share of residential premises:

1. Tax deduction for the year

The opportunity to receive a tax deduction is available to all taxpayers if they have an official job.

1. Receiving monetary compensation

The seller of his share in the apartment receives money for the sold part of the housing. It is not the buyer who sets the price, but the owner.

1. Conclusion of a preliminary agreement

Together with the preliminary agreement, the parties sign an act of acceptance and transfer of share - a guarantee of transfer of ownership.

1. Unlimited number of participants

The sale of the share is entirely at the discretion of the owner - he has the right to choose from among the buyers not only an individual, but also an organization.

Disadvantages of buying and selling:

Waiting for subsequent sale

Tax obligations are borne by the seller - if he wants to sell the purchased share before the 5-year period, he will have to pay 13% personal income tax (clause 4 of article 217.1 of the Tax Code of the Russian Federation).

Pre-emptive right to purchase

Co-owners of an apartment have the right to buy out the share of one of the owners. The seller does not have the right to enter into a purchase and sale agreement with third parties until he offers a share to the co-owners of the apartment (Article 250 of the Civil Code of the Russian Federation).

Joint ownership regime

The share of an apartment purchased during marriage is considered joint property of the husband and wife. The law does not provide any exceptions, even if the share was purchased by one of the spouses, and the other did not participate in the transaction.

What laws govern it?

Theoretical knowledge is not enough to carry out the procedure between spouses as competently as possible. Let's find references to this in the law.

Like any other transaction with the property of citizens and carried out between citizens, this procedure is reflected in the Civil Code .

An entire chapter 32 is devoted to it, and article 572 and subsequent norms answer the main questions.

There are no restrictions on subjects in the articles of the Civil Code, which means that a transaction can be easily carried out between married spouses.

Drawing up an agreement on the division of common property.

Spouses can enter into an agreement on the division of common property. In order to get it properly executed, it is recommended to visit a notary.

Spouses should prepare the following documents:

• passports;
• real estate ownership documents;
• technical certificates, cadastral passport, etc.

Download the sample here:

Agreement on the division of common property.

Taxation: can you save money?

It is incorrect to believe that income is expressed only in a certain amount of money - according to legislative logic, someone who has received a share of an apartment as a gift has income equal to its value, and therefore must pay tax to the state. However, gifts between people who are closely related are exempt from income tax.

If you want to give an apartment to more distant relatives and save on taxes, if you have time, you can sequentially conclude several deeds of gift. For example, if you want to give a share to your nephew, you can first enter into an agreement with your sister or brother, and they will already give the gift to their child. In this case, you will have to pay the duty twice, but the tax savings will be much more significant.

It is important to know that declaring income is necessary in any case; ignoring this requirement is fraught with a significant fine.

This is a simple procedure - you just need to have time to fill out form 3-NDFL and submit it to the tax authority before April of the year following the registration of the transaction, and do not forget to attach donation documents and documents confirming close kinship. Persons for whom the tax exemption does not apply must pay a 13% tax before July of the same year.

Is it possible to indicate another value instead of the cadastral value?

Yes, according to paragraph 5 of Art. 333.25 of the Tax Code of the Russian Federation, donors and recipients have the right to choose themselves what value to take as the transaction amount - cadastral, inventory or assessed (market). The inventory value is almost always less than the cadastral and market value, which means you will have to pay less to certify the contract. But the catch is that to do this, the notary will have to provide certificates for each cost. The notary will find out the cadastral value himself; a certificate of inventory value is taken free of charge from the BTI, but the estimated (market) value is determined only by appraisal companies and this service is paid (clause 8 of Article 333.25 of the Tax Code of the Russian Federation). The cost of assessment in each region is different - from 4 thousand rubles.

It is important to understand whether it makes sense to order an appraisal at all or is it easier for the notary to calculate from the cadastral value. Let's describe it with an example: donors and recipients decided to provide the notary with all 3 certificates in order to charge the least amount for the transaction amount. We ordered a report on the appraised value of the apartment from an appraisal company for 5,000 rubles. 1/2 share of the apartment is given. The cadastral value of the apartment is 3 million rubles, the inventory value is 2.5 million rubles, the estimated value is 2 million rubles. It turns out that the cadastral value of the share is 3 million * 1/2 = 1.5 million, the inventory value is 2.5 million * 1/2 = 1.25 million rubles, the estimated value is 0.5% * 2 million * 1/2 = 5 tr. The cost of the certificate according to the tariff at the cadastral value will be equal to 0.5% * 1.5 million = 7500 rubles, at the inventory value 0.5% * 1.25 million = 6250 rubles, at the estimated 0.5% * 2 million * 1/2 = 5000 rubles . Of course, donors and recipients chose the estimated value, because it turned out to be the lowest. But if you remember that the report on the estimated value cost 5,000 rubles, then the total costs came out to 10,000 rubles. It turns out that it would be cheaper for the notary to take the cadastral value of the share for the transaction amount.

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