Among the many ways of transferring conditionally inherited property between relatives, provided for by domestic legislation, the leading role belongs to the gift agreement. The popularity of this option of alienation of property in our country is explained by the fact that this transaction is free of charge. In addition, its design does not present significant difficulties.
In what cases is donation allowed?
The time of the transaction for the transfer of real estate as a gift does not matter. A gift agreement is a bilateral transaction, a necessary condition for the completion of which is the consent of the donee. In this way, a donation differs from a will, for the execution of which a unilateral expression of will is sufficient. The law requires that a real estate gift agreement be concluded in writing.
However, it should be remembered that it will not be enough to simply write a deed of gift for an apartment in favor of a relative. The fact of transfer of property must be registered with Rosreestr. Otherwise, the deal will not be considered concluded.
Another necessary condition for the validity of the act of donation is that it must be completed during the life of the donor. An agreement under which property is transferred to the donee from the donor, if the latter has already died, is void according to Art. 572 of the Civil Code of the Russian Federation.
Important! The conditions that a gift agreement must meet are contained in Chapter 32 of the Civil Code of the Russian Federation.
Gift agreement: one-sided or two-sided transaction?
Now let's figure out what kind of deal this is - unilateral or bilateral. In legal practice there are several interpretations. While some adhere to the first option, others reasonably consider this a two-way procedure.
Let's turn to Art. 154 Civil Code of the Russian Federation:
- A document is considered unilateral, according to which the will of the property owner is sufficient;
- a bilateral transaction is a transaction that requires the consent of the will of both parties;
- a multilateral procedure requires agreement between three or more citizens.
According to the Civil Code of the Russian Federation, DD is considered one-sided, because places obligations on only one person – the donor. However, without the consent of the recipient to accept the gift, the transaction is not possible. Another argument in favor of two-sidedness is the possibility of refusal by the recipient.
How to draw up a debt gift agreement?
Is a gift agreement valid after the death of the donor?
Rules for registering a deed of gift
To formalize the act of donation, the law provides for a simple written or notarial form of the transaction. The deed of gift does not need to be certified by a notary if the owner of the property is one person. In this case, it is enough to draw up the agreement in writing and sign it, after which the document can be submitted to Rosreestr to register the transfer of ownership. If a transaction is made between persons who are not related, it is better to protect yourself and confirm the legality of the transaction with a notary.
The nuances of completing a transaction
According to A. Voskresenskaya, lawyer, difficulties may arise in a situation where the parties to the gift agreement are not closely related. This is due to such a property of this transaction as gratuitousness. Judicial practice shows that the majority of disputed contracts were concluded by parties between whom there are no family ties (in particular, common-law spouses). It is much more difficult to invalidate a notarized transaction , so it is recommended to draw up a gift agreement with the assistance of a notary.
About misconceptions, risks and the procedure for donating real estate
- agreements for the donation of real estate owned by several owners on the basis of common shared ownership, regardless of whether a share or the entire object will be donated (exceptions are transactions with land shares and transactions involving a mutual investment fund);
- transactions in which the donor is a minor, incompetent or partially capable person.
All other gift agreements not specifically provided for in the law do not need to be certified by a notary.
This will not give you anything except additional costs. To successfully pass state registration, a well-drafted gift agreement in simple written form is sufficient. Misconception No. 2 - about transferring an apartment as a gift after the death of the donor. A gift agreement providing for the transfer of an apartment to the donee after the death of the donor has no legal force (void). This condition involves the transfer of the apartment by inheritance under a will. Donation and inheritance by will are two different legal procedures, each of which has its own pros and cons.
The main benefits of donation:
- no need to wait six months, you can immediately move into the apartment or sell it, no need to pay utilities for 6 months of waiting;
- lower costs for notary services and paperwork;
- allows the donor to disinherit persons he does not like, who are legally entitled to an obligatory share in the inheritance.
The main advantages of inheritance by will:
- the right of ownership passes to the heir only after the death of the testator; accordingly, the option is excluded in which, due to a soured relationship, the donor is deprived of the right to live in an apartment that no longer belongs to him. This often happens in the case when the donee sells the apartment received as a gift to a third party who is not at all interested in having a stranger live in his new apartment;
- You can change your mind, change or cancel a will as many times as you like.
Misconception No. 3 - about reciprocal obligations on the part of the donee. The gift agreement cannot contain any conditions on reciprocal obligations on the part of the donee, including periodic payment of money, care for the donor, provision of food, medicine, clothing, etc. The listed conditions imply the conclusion of a rent agreement.
Misconception No. 4 - about the right to a property tax deduction. A person who received an apartment as a gift does not have the right to a property tax deduction, which a home buyer has the right to use once.
Risks
Risk No. 1—suspension or refusal of state registration of the transaction. Possible reasons:
- low qualifications of the lawyer drawing up the gift agreement and executing the transaction;
- lack of elaboration, inconsistency and imperfection of legislation, which may manifest itself in different interpretations of its provisions by the lawyer executing the transaction, the state registrar, notary, or judge.
In non-standard situations, if there are errors in the documents, their “respectable age” and incorrect registration typical of the early 1990s, or if there is a complete or partial absence of documents for real estate, the right decision would be to contact lawyers with extensive experience in the field of registration of rights to real estate property, because their experience will help you solve the problem with minimal costs.
Risk No. 2 - the court deems the transaction invalid due to the incapacity of the donor at the time of conclusion of the contract. A fairly common situation is when, after the death of the donor, the heirs challenge the gift agreement in court, present the medical history of the deceased as evidence of incapacity, pay for independent examinations, etc. During the consultation, we offer an additional service that almost completely eliminates this risk.
Risk No. 3 - the court deems the transaction invalid due to its fictitiousness. A gift is a gratuitous transaction that can be recognized by the court as feigned if the fact of transfer of money is proven. That is, if you accompany a donation transaction with “unofficial mutual settlements,” there is always a risk for the recipient of losing both the apartment and the money paid for it. Other grounds for declaring a transaction invalid:
- the donee commits an attempt on the life of the donor, members of his family or close relatives, causing bodily harm to the donor;
- inappropriate treatment of the donated apartment by the recipient from the point of view of the donor and the court, creating the threat of its irretrievable loss;
- conclusion of an agreement under the influence of deception, delusion, violence, threat or due to a combination of difficult circumstances;
- a number of other grounds provided by law.
Risk No. 4 - drawing up a gift agreement in cases where, according to the law, it is necessary to conclude an agreement on the division of property. Such agreements can be registered by Rosreestr, but subsequently, when interested parties go to court, they are easily declared invalid.
Risk No. 5 - violation of the rights of third parties when transferring an apartment as a gift. This happens, for example, when a jointly owned apartment is donated by one spouse without the correctly executed consent of the other spouse, as well as in a number of other cases.
Risk No. 6 - eviction of the donor from the apartment previously donated by him. Unfortunately, judicial practice inexorably shows that adding a condition to the gift agreement that the donor retains the right to lifelong use of the apartment does not solve the problem. During your consultation, we will offer you an option that completely eliminates this risk.
It's worth keeping in mind:
- a real estate gift transaction concluded between close relatives is not taxed;
- in cases where the donation of an apartment is NOT between close relatives, the recipient is obliged to pay a tax of 13% of the cadastral value of the apartment;
- to donate a share of an apartment that is in shared ownership, the consent of the owners of other shares is not required;
- To donate an apartment that is in common joint ownership, the consent of all owners is required;
- the donation of an apartment in a new building for which ownership has not yet been registered is formalized by an agreement on the assignment of rights of claim;
- a donation can be formalized and registered in the form of a written promise by the donor to donate an apartment to the donee upon the occurrence of certain conditions or after a certain time has passed;
- The gift agreement may provide for the right of the donor to cancel the gift if he survives the donee.
Still have questions? Take advantage of a free consultation by phone +7(495)9999-012, ask a question or come to our office for a consultation (by appointment). We will tell you in detail about all the pitfalls of the donation procedure, the pros and cons of alternative options for transferring real estate (sale and purchase agreement, rent, will) and recommend the optimal solution for your situation.
List of documents required to complete a donation transaction
- Identification documents of the parties (passports).
- Certificate of ownership of real estate or an extract from the Unified State Register of Real Estate.
- The act of acceptance and transfer of the apartment. This document is drawn up after registering the transfer of ownership and transferring the keys to the new owner. The law does not require the mandatory preparation of such an act, however, practice shows that its execution makes it possible to avoid possible mutual claims in the future. The reason is that the fact of concluding an agreement is confirmed by registering the transaction in Rosreestr, and the fact of transfer of ownership is confirmed by signing the transfer and acceptance certificate.
When donating an apartment is prohibited
According to Russian laws, it is not possible to draw up a gift document in all situations. The law prohibits the transfer of real estate free of charge in the following cases:
- If both parties are commercial enterprises;
- when transferring real estate from a patient to the attending physician or social worker;
- civil servants, when real estate is planned to be donated as part of the performance of their direct duties;
- student to teacher.
In all such situations, the law allows making gifts, but their price should not exceed three thousand rubles. The document is not signed.
Risks that may arise on the donor's side
You should remember the risks that arise for the donor when drawing up a deed of gift. They are due to the fact that the latter is deprived of all rights in relation to the transferred property after registration of the transfer of ownership. Since a gift transaction, unlike a will, is completed during the life of the donor, the parties often verbally agree that the previous owner will be able to live in the donated apartment. However, in practice, such agreements are not always observed, which entails protracted and, as a rule, unsuccessful litigation for the former owner.
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Arbitrage practice
Challenging is carried out through the court, because The consent of the other party is not required in this case. Challenging a deed of gift is a complex process that requires good legal preparation and complete evidence confirming the grounds for canceling the transaction.
But there is an opportunity to challenge everything in court, this is confirmed by several decisions:
- Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 ;
- Decision No. 2-597/2019 2-597/2019~M-515/2019 M-515/2019 dated June 13, 2021 in case No. 2-597/2019;
- Decision No. 2-3414/13 2-3414/2013 dated November 11, 2013
