How to correctly draw up a gift agreement between spouses? Legal advice

Article updated: June 13, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. I helped 20 clients formalize the donation of their shares. In itself, the execution of a deed of gift does not depend on whether the donors are related to the recipients or not. Therefore, the instructions on this page are suitable for everyone. I divided everything into 3 main stages: 1) collect documents; 2) we draw up a gift agreement; 3) submit the agreement with documents to the MFC or the Registration Chamber to register the transaction. Parties to the transaction: donor - the one who gives his share; donee - to whom it is given.

Remember: if the owner wants to give his share or part of it to someone, he DOES NOT NEED to obtain the consent of other owners, nor the consent of those registered/living in the apartment, nor the permission of the guardianship authorities if one of the owners is a minor. The owner of a share can donate it to anyone in accordance with clause 2 of Art. 246 of the Civil Code of the Russian Federation. Consent is not specified either in Chapter 32 of the Civil Code of the Russian Federation on donation, or in Federal Law No. 218-FZ dated July 13, 2015, on the basis of which all real estate transactions are registered. Also, do not pay attention to paragraph 1 of Art. 246 of the Civil Code of the Russian Federation - it means that by agreement of the owners, the entire apartment is disposed of, and not a separate share of it. The exception is minor children; they cannot give their share to anyone, but only sell it - more details.

Also, when donating a share, you do not need to take into account the period of ownership. The owner can donate the property at any time and there will be no tax for him. The minimum period is taken into account only when selling. Now let's move on to step-by-step instructions.

Stages:

• Stage No. 1 – collecting documents
• Stage No. 2 – order a donation agreement for a share of the apartment
• Stage No. 3 – Registration of the gift transaction

Conditions of donation

One of the key terms of the contract is that it is free of charge. The property owner signs over his home to the applicant and receives nothing in return. Also, the agreement should not contain counterclaims to the recipient. However, it may contain a clause on the possibility of refusing to transfer the gift.

Alienation of housing must be lifetime. If the contract contains a clause on the transfer of property after death, then it is void. Posthumous disposal of assets occurs through the execution of a will.

When alienating real estate, the deed of gift is concluded in writing. Another condition is notarial support of the transaction.

The agreement must contain a reference to the absence of arrests and encumbrances on the property. This also includes claims of third parties.

Another mandatory point is a thorough description of the characteristics of the alienated property. Additionally, you need to make reference to the acceptance of property as a gift by the beneficiary. It acts as a kind of act of reception and transmission.

Who can I donate part of the apartment to? The law does not contain any restrictions in this regard. The beneficiary can be any person - a family member, distant relative or stranger. The only requirement is the presence of legal capacity.

If property is alienated in the interests of a minor citizen, then his interests are represented by his parents. The consent of the guardianship authority is not required to complete the transaction.

Who can be a donor? There are also no significant restrictions here. Any capable person has the right to alienate his property to whomever he wishes. As for minor citizens, the written consent of the guardianship authority is required to carry out such transactions. Getting it will be extremely problematic. Typically, the executive authority does not give consent if the interests of the child are infringed. However, theoretically, the deal could take place.

Is the consent of the co-owners required for the transaction? Here we need to proceed from the property regime. For example, if the alienated housing is the joint property of two or more persons, then their resolution on the transaction will be required. If the donor's part is allocated in kind, then approval of the transaction is not required. The owner of a share of the apartment can freely enter into an agreement.

Who can be selected as the donee?

You can donate a share of an apartment under the same conditions as donating it entirely, that is, to anyone.

The best option is to give it to close relatives, because there is no need to pay tax.

You can donate part of your apartment to a complete stranger, but in this case tax must be paid.

The law prohibits donation in the following situations:

1. The donor has not reached the age of 14.
2. Obtaining an apartment under a state program that prohibits the donation of shares.
3. The donee is a civil servant or municipal services employee. His line of work does not allow him to receive housing as a gift. However, in some situations, giving to them is still possible. At the same time, it is necessary to indicate in the deed of gift that the position held does not matter here.

Procedure and procedure for registering a deed of gift

The preparation of a gift agreement begins with the preparation of papers. The list of documents may vary depending on the situation. One of the key documents is the written consent of the co-owners.

The next stage is the development of a draft agreement. The standard form can be downloaded from our website or taken from a notary. The second option has one drawback. It is more convenient to discuss the terms of the transaction with the recipient at home. You can also order a donation agreement for a share of an apartment from a lawyer. The advantages of this approach are obvious. The lawyer will not only listen to the wishes of the parties to the transaction, but will also advise how appropriate the specific terms of the contract are.

After agreeing on key points, the parties to the agreement must visit a notary. The link goes to the location of the property. Responsibilities of a notary:

1. Establishing the identity of citizens (participants in the transaction).
2. Verification of documents.
3. Clarification of the rights/responsibilities of the parties to the agreement.
4. Assistance in the implementation of civil rights.
5. Explanation of the legal consequences of the transaction.
6. Certificate of gift agreement.

To avoid any kind of abuse, the parties to the transaction familiarize themselves with the text of the gift agreement before signing it. After which the notary calculates the amount of the fee and issues the necessary details. After paying the state fee, the notary invites citizens to seal the transaction with their signatures and makes a notarial inscription. Data about the transaction are entered into the register. After signing the agreement, the notary reminds you of the need to register the right. We will consider below what is needed to enter information about the new owner into the Unified State Register.

List of required documents

To prepare a deed of gift, the following documents are required:

1. Identity card of the parties to the transaction.
2. Documents for the alienated share of purchased or privatized housing (extract from the Unified State Register, technical documentation).
3. Certificate issued at the place of residence of the donor. Sometimes the registration address differs from the location of the alienated property. Then the document is taken to the address of the apartment.
4. Consent of other co-owners of the property. For example, if the property is jointly owned by several citizens.
5. Proof of relationship. For example, a certificate of marriage or adoption of a child.
6. Evidence of payment of the fee.

If the parties to the agreement are relatives, then the recipient is exempt from paying personal income tax (Article 217 of the Tax Code of the Russian Federation).

State duty, cost

When registering a deed of gift, citizens bear some costs. This includes payment of state fees, notary services, and registration of rights.

The state duty is 0.5% of the value of the gift. However, the tax amount should not be less than 300 rubles. and more than 20 thousand rubles. The payer of the state duty is usually the beneficiary.

Notary services cost around 5 thousand rubles. However, rates may vary by region. Details need to be obtained from a notary.

For registration of property rights to premises in an apartment building, 200 rubles are charged. When decorating the entire apartment, the fee increases to 2 thousand rubles.

Taxes

When registering a deed of gift, the beneficiary will have to pay income tax. There are different tax rates in the Russian Federation. Residents pay 13%, non-residents – 30%

Tax deductions must be made by April 30 of the following year. The countdown begins from the moment the transaction is concluded. At the same time, the taxpayer must submit a tax return at the place of registration. Reporting is submitted to the territorial branch of the Federal Tax Service. There are penalties for late payment of taxes or filing a return.

Are there any benefits for paying personal income tax? Yes. Citizens who are related are exempt from paying tax. For example, spouses, parents/children, grandmothers/grandchildren. However, they will have to file a nil tax return.

Deadlines

The parties to the agreement have the right to draw up a gift agreement at any time. The law does not contain regulated deadlines. The parties to the transaction themselves determine the date of signing the agreement.

An exception may be the fulfillment of obligations related to the use of maternity capital. Here you need to proceed from the method and date of origin of ownership of housing. In such circumstances, the donor is given six months to complete the transaction. When calculating the period, it is necessary to take into account the requirements of Article 10 of Federal Law No. 256-FZ.

What are the deadlines for registering a right? A legally significant action must be carried out within a year. Since delaying the procedure can lead to unpleasant consequences. For example, in the event of the death of the donor, the housing will become part of the inheritance estate. The beneficiary will have to restore justice in court. Such a turn of events will lead not only to a loss of time, but also money.

It is optimal to submit papers to Rosreestr immediately after certification of the contract.

Taxes

Quite pleasant for recipients and donors is the fact that if they are close relatives, payment of tax (personal income tax) when making a gift is not necessary.

Other cases imply the need to pay a tax in the amount of 13% of the value of the property received as a gift. For foreigners this percentage is 30%.

Close relatives include:

• children and parents;
• grandparents and grandchildren;
• brothers and sisters.

The recipient must pay taxes and other expenses when making a gift.

Registration of ownership

After signing the contract, the beneficiary will have to register ownership. The functions of the registrar are assigned to the Cadastral Chamber. Changes to the register occur at the request of the new owner. Attached to it:

1. Donation agreement.
2. Real estate documents.
3. Passports of citizens (owner of the premises and beneficiary).
4. Extract from the house register.
5. Resolution of the co-owners of the apartment (not always).
6. Receipt of payment of the duty.

Note. The consent of the other apartment owners is required when donating property that is jointly owned by two or more persons. If the alienated object is in shared ownership, then a resolution of the co-owners is not needed.

If the beneficiary is a young child, then his interests are represented by his parents/guardians. Therefore, the baby's birth certificate will be required. Additionally, you will need to attach confirmation of the representatives' authority. Copyright holders over 14 years of age submit documents to the registrar independently. Additionally, parental consent will be required.

The period for re-registration of documents in Rosreestr is from 5 to 12 days. Much depends on the method of filing the application and the type of action being registered. Upon completion of the procedure, the copyright holder is issued an extract from the Unified State Register.

Who can you donate a share to?

By law, a deed of gift can be issued to almost anyone. You can transfer a share in an apartment free of charge to a relative, friend, good acquaintance or a complete stranger. There are no obstacles to this, even if there is a minor co-owner.

The transaction has its own characteristics when it comes to a gift to a minor. Until the age of 14, a child will not be able to sign a donation agreement for a share of the apartment; his parents must do this for him. And from 14 to 18 years old, children sign themselves, but with the permission of their legal representatives. Otherwise, the transaction will be considered illegal.

And yet, the legislation has provided a list of persons to whom it is prohibited to give shares in apartments in order to combat corruption:

• Employees of educational, medical and social institutions, if the donor is their client or a relative of the client;
• Employees in state, municipal bodies, state banks, if the gift is somehow related to the performance of their official duties.

FAQ

The variety of life situations makes it impossible to consider each of them separately. However, we will try to answer the main questions that arise when registering a deed of gift for part of the housing.

Is it possible to challenge a gift agreement?

Yes. The deed of gift can be canceled by agreement of the parties or in court. There are several reasons for terminating a deal:

1. The financial situation of the donor greatly deteriorated after the alienation of the property.
2. The recipient has committed a crime against the donor.
3. The beneficiary is extremely careless about the property donated to him.
4. The donor survived the recipient.
5. Insanity of the owner of the property when signing the deed of gift.

One of the grounds may be specified in the contract. But such a clause does not exclude the possibility of litigation. The parties to the contract or third parties can go to court. For example, legal successors of the donor.

Example. After the death of the testator, his successors learned that the man had given his share of the apartment to his brother shortly before his death. At one time, the property was inherited by them. As a result, close relatives of the testator lost their property. The heirs filed a lawsuit to declare the contract invalid. They argued that the testator did not understand the consequences of his actions at the time of the transaction. The examination confirmed the fact of insanity. The court declared the gift agreement invalid. Previously donated property became part of the inheritance.

Is it possible to return the donated share back?

Yes. If the gift agreement contains a clause on unilateral termination of the transaction upon the occurrence of certain circumstances, then the transaction may be cancelled. It is enough for the parties to the agreement to enter into a new agreement. The procedure for its execution is the same as the initial agreement. The donor may bear the costs of the transaction.

Is it possible to sell a donated share?

Yes. After entering the data into the Unified State Register, the beneficiary becomes the owner of the property donated to him. Therefore, he can dispose of it at his own discretion. The exception is the presence of encumbrances on the apartment. For example, if the property is under mortgage. Alienation of such property is permitted only with the consent of the creditor.

Another nuance is the preemptive right of redemption. The owner of a share of the apartment must first offer to buy it out to the other owners. They are given a month to make a decision. After which the owner can alienate the property to third parties.

Minimum share

Ownership does not depend on the size of the share in the residential premises. The owner of a part of the apartment has the right to dispose of the property without any restrictions. The exception is the agreement on the alienation of one’s share of housing. For example, if the property is jointly owned by two or more persons.

The procedure for using joint property is determined by agreement of the parties (Article 246 of the Civil Code of the Russian Federation). However, if the new owner’s share is less than the size of the smallest room, then the remaining owners may raise the issue of buying out his part. If the claims are satisfied, the owner of the property is entitled to appropriate monetary compensation.

Is it possible to donate a share in a mortgaged apartment?

Yes. The law provides for the possibility of alienation of mortgaged property (Article 37 of Federal Law No. 102-FZ). The donor needs to study the loan/mortgage agreement. Sometimes creditors include a clause prohibiting the alienation of property until obligations to the bank are fully repaid. If there is no prohibition, then on the eve of the transaction the borrower will have to obtain consent to donate a share in the mortgaged apartment. Banks rarely agree to such manipulations. A positive decision of the bank may be in the following cases:

1. The amount of mortgage debt is insignificant.
2. The borrower may provide similar property as security.
3. There is a change of borrower. Instead of the main debtor, the recipient enters into a contractual relationship with the bank. The apartment remains pledged to the bank.

Preparation of the contract

Today, a mandatory requirement in most cases is to have the gift agreement certified by a notary.
This is mentioned in Federal Law No. 218-FZ (Clause 1, Article 42). Only a deed of gift certified by a notary can be transferred to the Registration Chamber or MFC. The agreement can be drawn up independently, and then taken to a notary’s office and certified, or the entire transaction can be executed by a notary. The latter option will be safer, but also more expensive.

Certification by a notary will protect you in case someone wants to challenge the deal. It will act as a guarantor of the legality of the transaction.

When drawing up a contract yourself, there may be errors. It often happens that a person downloads an inappropriate form from the Internet and fills it out. But in his situation it was necessary to draw up the contract in a completely different way. It is better to seek help from a qualified lawyer or notary. This way you will protect yourself from the suspension of the transaction, which can happen if there is even one spelling error in the contract.

Note: The document should be signed not when it is drawn up, but when it is certified by a notary. If you submit an uncertified document, it is better to sign it at the registration chamber or MFC.

The number of copies of the document depends on the number of persons participating in the transaction. If there are two of them, you will need another one to submit to the MFC (in general, three copies will be required).

How to draw up a power of attorney?

If the owner does not have the opportunity to take part in the execution of the transaction, you can draw up a power of attorney under which another person can do this.

A power of attorney can be of the following types:

1. One-time - giving the right to perform the operation once.
2. Special - the authorized person has the right to perform the operation several times.
3. General - allows the trustee to fully carry out the donation.

Having decided on the type of power of attorney, the donor goes to the notary, having with him his passport and the passport of the authorized person, the tax number of the donor obtained from the tax service and a questionnaire indicating the passport details of the authorized person.

After the notary prepares the power of attorney, the donor signs it.

Termination

If the donation is formalized and registered in compliance with all the rules, the transaction can be canceled only in the following situations:

1. The person who received the gift made an attempt on the health/life of the donor/his family.
2. The donor died due to the fault of the donee.
3. When signing the documents, the donor was in an insane state (under pressure or threat; poisonous, psychotropic, narcotic or alcoholic substances).
4. Any clause in the deed of gift violates current legislation.
5. The deal was declared fictitious by the court.

The deed of gift can only be contested through court proceedings. If the court rules in favor of the donor, the property will be returned to him in full.

Arbitrage practice

Often, interested parties turn to the courts to invalidate DDs and powers of attorney, justifying this with the above reasons or a violation of their interests.

Here are some examples of decisions where claims were satisfied:

• Decision No. 2-3/2019 2-3/2019(2-517/2018;)~M-466/2018 2-517/2018 M-466/2018 dated January 22, 2021 in case No. 2-3/2019 ;
• Decision No. 2-17/2019 2-17/2019(2-2093/2018;)~M-1268/2018 2-2093/2018 M-1268/2018 dated January 15, 2021 in case No. 2-17/2019 ;
• Decision No. 2-335/2018 2-335/2018(2-5440/2017;)~M-3301/2017 2-5440/2017 M-3301/2017 dated September 28, 2021 in case No. 2-335/2018 .

Which is better: an oral transfer of a gift or a written transaction?

The law allows you to give movable things without a written document. For example, to alienate a car in favor of a spouse, it is enough to indicate her as the new owner in the title and hand over the keys. However, it is better to draw up a deed of gift: this will allow you to confirm the fact of the transaction if problems arise.

Another argument in favor of a written contract is that it is difficult to challenge. If the donor or a third party decides to take back the gift, he will have to go to court, and only if there are grounds. DD will not be canceled without reason.

How to register real estate so as not to divide it during a divorce?

By law, all real estate acquired during marriage is considered joint property.

Therefore, during a divorce, it will be divided between the spouses in equal shares.

This rule does not apply to the following types of real estate:

• inherited;
• issued to one of the spouses under a deed of gift;
• purchased before marriage.

There are several ways to design an apartment in such a way that no one has any questions or disputes during a divorce.

Where can I order an extract from the Unified State Register of Real Estate?

A paper statement can be ordered from the MFC or contacted directly by Rosreestr. To do this, you need to come to the branch in person, fill out an application and leave your personal data.

Important! You will have to wait 5-9 days for the USRN extract on paper. If you want to receive a document urgently, then the electronic version is suitable.

You can order it using the EGRN.Reestr service. In order to find out the necessary information, you do not need to provide any information other than the address of the apartment or its cadastral number. The finished answer will be sent to you by email. Order an extract from the Unified State Register in advance, before you send the declaration to the tax office. It will help you avoid misunderstandings when determining the amount of tax.

Is it worth checking the donated apartment?

Many citizens are afraid that there may be problems with their new apartment. It is unlikely that the people who give you real estate will wish you harm. But it's still worth checking. In order not to receive a broken trough or housing with debts instead of a gift, protect yourself in advance.

Order an extract from the Unified State Register of Real Estate . With this document you can find out the history of the owners of the apartment, as well as all current owners. In addition, you will understand whether there are any encumbrances on the property.

For example, property may be pledged. If the donor is not a person close to you, this is a reason to think about it. Maybe the room in the communal apartment that he decided to give you is a burden to him and there are a lot of debts on it. He can't sell it. Therefore, it is easier to donate real estate than to pay huge sums for it.

Or, for example, the apartment had a mortgage . Its former owner believed that he had paid the housing court in full, but was late and forgot about it. Penalties grew and became a debt on the property. If you do not check the housing according to the documents in advance and register the property yourself, there is a risk that your gift will be followed by a huge tail of your debts.