Donating a share in an apartment to a close relative in 2021: order and procedure, documents, taxes, state duty

Article updated: April 2, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. In the article, I wrote instructions for parents who want to give an apartment to their adult children - a son, daughter, or several. I will describe all the stages and documents.

If you need to donate an apartment to children under 18 years of age, then go to another article - how to formalize the donation of an apartment to a minor child/children.

Remember: A donated apartment is not jointly acquired property of the spouses, but only the personal property of the person to whom it was given - clause 1 of Art. 36 IC RF. For example, if an apartment is given to an adult son who is married, then his wife will have nothing to do with this apartment. A donated apartment is not divided during a divorce.

When donating, you do not need to ask for consent or permission from those registered/living in the apartment, if any. Even minors. Registration and donation are in no way connected.

Law

The procedure for drawing up donation agreements and subsequent re-registration of ownership rights is established by the following regulations:

Civil Code of the Russian Federation.
Fundamentals of legislation on notaries.
Federal Law “On State Registration of Rights...”.
Federal Law “On Cadastral Activities”.
Federal Law “On State Registration of Real Estate”.

The Notary Law applies to the notarization of contracts. When donating a share in an apartment, a mandatory notarization of the contract is required.

What is an apartment share

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The owner of the premises may be one person or several. If there are several co-owners, each of them owns a certain part of the property (house, apartment).

Moreover, property can be common or shared (Article 244 of the Civil Code of the Russian Federation). Common property means property without determining the shares of participants.

Their size depends on the number of co-owners. For example, in a privatized apartment for three people, each family member owns 1/3 of the housing.

With shared ownership, each owner owns a specific portion of the property. Moreover, the shares may be different.

How to properly gift a share in an apartment to a close relative, mother, daughter, son

The basic requirement when concluding transactions is the full legal capacity of the parties to the agreement. That is, citizens must reach the age of majority. The interests of minors are represented by their parents or other legal representatives (guardians, adoptive parents).

The share donation agreement is drawn up in writing. The rule applies regardless of the degree of relationship between the parties to the transaction. Oral alienation of real estate is prohibited. The agreement gains force after its signing.

A prerequisite is its notarization. The reason for contacting a notary is the need to conduct a transaction with shares in real estate.

The right of ownership to the alienated object arises after entering information into the Unified State Register.

Example. The head of the family decided to sign over his apartment to his son and daughter from his first marriage. Each of them was entitled to ½ part of the housing. Both children have reached adulthood. Therefore, their mother's consent was not required. The parties discussed all the main terms of the deal. The deed of gift was drawn up by a notary. On the same day, the papers were submitted to Rosreestr. A week later, the recipients received an extract from the Unified State Register of Real Estate.

Legal consequences of giving a gift to a child

From the moment a minor child acquires ownership rights to a share, he can dispose of it with the consent of his parents. To alienate a share for compensation, you will need to obtain the consent of the guardianship authority; for gratuitous transactions, you will need to wait until the child reaches the age of majority.

Gifts of real estate between persons with family ties are characterized by the elimination of the obligation to pay income tax. Thus, if the donee child and the donor were related (for example, father and son), tax law allows them to avoid taxation. If the gifted child was not a relative of the donor, his parents will have to pay tax at a general rate of 13%, since the acquisition of property as a gift means a property benefit.

If the contract provided for a promise to donate a share, it is subject to fulfillment within the period specified in the text of the contract. Refusal of a promise is permitted only in cases expressly provided for by law (for example, in the event of a significant deterioration in the property and financial situation of the donor, which he could not have anticipated at the time of concluding the contract).

After acquiring a share in an apartment, a minor citizen has equal rights with other shareholders to own and use the common property of the apartment. At the same time, restrictions cannot be established for the owner regarding moving in and actual residence in the apartment, as well as when registering at the place of residence.

From the moment the child reaches the age of 18, he will receive full independent right to dispose of the share in the residential premises at his own discretion. Consent with the parents who participated in the transaction as legal representatives of a minor citizen is not required.

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.

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.

RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The Donor has the right to cancel the donation if the Donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the Donor.

In case of intentional deprivation of life of the Donor by the Donee, the right to demand in court the cancellation of the donation belongs to the heirs of the Donor.

2.2. In case of cancellation of the donation, the Donee has no right to demand compensation for losses.

2.3. The Donor has the right to cancel the donation if he survives the Donee.

Procedure

Transaction participants must perform the following actions:

Collect the necessary documents.
Prepare a draft agreement.
Contact a notary.
Prepare a deed of gift.
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:

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

Stage No. 1 – order a gift deed

From July 31, 2021, changes were made to Art. 42 of Federal Law N 218-FZ. Now the transaction of donating an apartment must be certified by a notary only if the donor (the one who gives) includes a minor or an incapacitated person - clause 2 of Art. 54 Federal Law N 218-FZ. In all other cases, the gift agreement is suitable in a simple form and does not need to be certified by a notary. An agreement in simple form is an agreement printed on A4 sheet and signed by the parties to the transaction.

How to transfer a share to a relative

There are several ways of alienation - sale, barter, donation. Each of them has strengths and weaknesses. When concluding a purchase and sale agreement, the priority right of redemption belongs to the co-owners.

Alienation of property to third parties is permitted only upon refusal of the main applicants. When concluding a deed of gift, such restrictions may not exist.

For free

The best option for the alienation of property is a gift agreement. Relatives do not pay income tax.

However, such transactions are not completely free. A state fee is charged for notarization of the deed of gift.

Participants in the transaction are paid separately for notary services.

Without deed of gift

Is it possible to give away a share without registering a deed of gift? You can transfer part of the apartment to a relative by concluding a purchase and sale agreement or exchange.

Both options are appropriate within the framework of inheritance law. For example, if several people inherited shares in different property.

Co-owners can agree among themselves to buy out or exchange the missing part. The ultimate goal of such transactions is to obtain ownership of the entire object.

Citizens can also draw up an agreement on the division of inheritance. However, they must first obtain a certificate from a notary (Article 1165 of the Civil Code of the Russian Federation). The choice of method for transferring part of the property depends on the circumstances of the case.

Donating a plot of land to a stranger

A land plot should be understood as a part of the earth's surface , the boundaries of which are legally established. The right to donate such land plots, according to Art. 260 of the Civil Code are possessed only by those entities that own plots that are not limited in circulation and not withdrawn from it .

It should be remembered that the land is under a special regime of protection by the state. When a stranger receives a plot of land as a gift, he has the obligation to use it for its intended purpose, established depending on the category of land to which such a plot belongs (Article 7 of the Land Code).

Please note that Art. 35 ZK and Art. 273 of the Civil Code, establish the impossibility of severing ownership rights to land plots and buildings located on them that are owned by one person. Thus, if the donor owns both the land plot and the building located on it, then he cannot give one without the other .

When donating a plot of land to a stranger, the agreement must necessarily contain a condition on the subject (Article 432 of the Civil Code), i.e. specify the transferred land plot (clause 2 of Article 572 of the Civil Code). To do this, the deed of gift must indicate the intended purpose and category of land, location, cadastral number, area, boundaries, purposes of using the site, etc. (Letter of Roskomzem No. 2-16/1629 dated October 20, 1994).

Since the land is a real estate property, after signing the contract, the transfer of rights to it is subject to state registration . It is carried out by the bodies of Rosreestr in the manner established by Federal Law No. 122 of July 21, 1997. For its implementation, applicants are charged a state duty, the amount of which is 350 rubles for plots and 100 rubles for a share in the ownership of them.

Additionally

Land, if it is received as a gift by a stranger, is subject to taxation. Due to the fact that income tax is calculated from the market value of the property, such value must be indicated in the contract.

Cases of donating land shares require special attention. According to Art. 12 Federal Law No. 101 dated July 24, 2002, their alienation is permissible only in favor of the same shareholders as the donor. To donate it in favor of any other stranger, you must first carry out the procedure for allocating a plot of land , on account of the land share belonging to the donor (Article 13 of the Federal Law No. 101).

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.

Legal status

At the stage of making a decision on a gift to a child, it is necessary to take into account the legal status of the residential premises and the peculiarities of participation of minor citizens in transactions. The shared form of ownership is characterized by the following features:

to dispose of the entire object, the participation of all shareholders is necessary, or the execution of a power of attorney for representatives;
when disposing of shares for a fee, you must first notify the remaining owners and give them the right of first refusal;
For paid and gratuitous transactions with shared ownership, it is required to certify the agreement at a notary's office.

Thus, regardless of the age of the donee, concluding a gift agreement will require contacting a notary office to certify the document.

The legal status of minor citizens also has features that are characteristic of the disposal of real estate or the acquisition of property. This is due to the limited legal capacity of this category of persons:

citizens under the age of 14 are deprived of the right to take part in any transactions with real estate;
minor children aged 14 to 18 years have the right to participate in transactions independently, however, with the consent of their legal representatives (for example, one or both parents).

Paid transactions for the alienation of apartments (including shares in part of the residential premises) belonging to minors are allowed only with the consent of the guardianship authorities. At the same time, the gratuitous alienation of a minor’s property is generally prohibited by law.

No such restrictions have been established for the acquisition of home ownership. Minor citizens have the right to acquire property assets under any type of transaction without prior approval from the guardianship authorities, however, the restriction on personal participation in signing contracts remains unchanged.

Thus, in order for a child to receive a share in an apartment as a gift, an adult capable parent or other legal representative must participate in the transaction.

As a rule, donations are made in favor of relatives or close people, so there should be no difficulties in agreeing on the terms of the contract.