An apartment donation agreement with the right of lifelong residence of the donor is a special type of deed of gift, according to the terms of which the donor donates his property (in this case, real estate) to the donee under certain conditions, which would seem to contradict the very definition of a gift.
From this article, authored by a practicing lawyer and one of the authors of the Legal Ambulance website, Oleg Ustinov, you will learn how to properly execute this type of transaction with minimal risks, as well as saving time and money.
General characteristics from the point of view of the law in 2021
Our regular readers probably know that, according to the current legislation of the Russian Federation, namely Article 572 of the Civil Code of the Russian Federation, a gift agreement is a type of gratuitous transaction as a result of which the property of the donor decreases due to an increase in the property of the donee. At the same time, the donor should not receive any benefit (money, services, etc.) as a result.
However, when drawing up the act, the contents of the act may include certain clauses that regulate the period of entry into force of the gift agreement and the existence of the donor’s right to live in the apartment donated to him for life.
This type of deed of gift in 2021, as a rule, is used between persons who are close relatives, since it allows you to transfer property to the disposal of loved ones without worrying that the donor may be asked to leave the living space donated to him after the transaction, which, unfortunately, not that uncommon in modern society.
Expert opinion
Oleg Ustinov
Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.
At the same time, a gift with such a condition has many both negative and positive sides for each of the parties to the transaction. Adding fuel to the fire is the fact that after the death of the donor, the apartment will become part of the inheritance mass, which, in itself, can cause conflicts and problems between the recipient and the legal heirs of the donor.
This usually happens when the transfer of ownership of the property was not registered in Rosreestr, despite the fact that the parties have not only signed the deed of gift, but also submitted it for registration. In this case, the recipient party will have no choice but to defend its rights in court. At the same time, certain circumstances of a particular case may play a cruel joke and the court will be forced to make a decision in favor of the heirs, considering the transaction illegal.
That is why we recommend that you do not risk your well-being and the bright future of your loved ones and get a free consultation from our lawyers before registering a deed of gift! Benefit for you - experience for us!
Documents required for registering a transaction
In order for the new owner to assume legal rights, registration of documents with Rosreestr is required . The required package includes:
- agreement in triplicate;
- passports of the parties;
- title documents for real estate;
- certificate from the BTI;
- cadastral documents;
- extract from the house register;
- a certificate confirming that the owner has no debts to tax and utility services;
- confirmation of payment of state duty.
Notarized consent of the donor's spouse or other owners may also be required. In addition, lawyers advise to certify the donor’s legal capacity. This is due to the fact that often the opportunity to live in a donated apartment for life is necessary for older people. Relatives who are dissatisfied with this decision may subsequently try to challenge the gift transaction, citing the incapacity of the owner. If there is no evidence to the contrary, there is a high risk that the court will invalidate the contract and the property will go to the heirs.
What is a gift agreement with an encumbrance?
In one of the previous articles we already described a deed of gift with an encumbrance, so we will consider it briefly here.
So, in jurisprudence, encumbrance is usually called certain artificially created obstacles or circumstances that limit the owner’s disposal of the property he has acquired.
In the case under consideration, a deterrent to the owner may arise if the owner of the property attempts to exercise his legal rights to the apartment, but this may cause harm to the donor of this apartment.
Another example of an encumbrance can be the registration of a deed of gift for an apartment with a mortgage, which many of our compatriots had to face for a variety of reasons.
For example, to purchase living space, you take out a loan from a banking organization, as a result of which the apartment you purchased will not be your property until the loan is repaid. This is a burden! At the same time, if you want to donate this property, you will have to obtain permission from the bank’s representatives, and their refusal will be the decisive point in this matter.
Lawyer's Note
In general, the procedure for donating such real estate remains similar to a classic transaction. First, it is necessary to obtain consent to accept property from the donee, and then draw up a gift agreement with an encumbrance, specifying in its content certain clauses that will act as a basis for breaking the transaction and as a guarantor for the parties’ compliance with its terms.
After signing a deed of gift with an encumbrance, the party receiving the gift has the right to use the apartment legally, registering, but without registering ownership of this property.
ARTICLE RECOMMENDED FOR YOU:
Donation agreement with a notary - cost in 2021
Lawyers divide the donation of an apartment with lifelong residence of the donor into 3 independent types , which are worth talking about in more detail.
Mixed gift
A deed of mixed type is concluded if the owner wishes to dispose of the property on an equal basis with the donee for the rest of his life. Thus, the latter undertakes the obligation not to interfere with the use of the apartment by the donor and not to prevent him from living in the living space without a time limit.
With use and ownership
The contents of the deed of gift indicate that the donating party has a lifelong right to use the apartment donated by him, and after death, his ownership right will pass to the donee.
When agreeing on the procedure for use
In a particular case, the parties agree among themselves on the order of priority for using the object of the transaction.
Features of a deed of gift with the right of lifelong residence
Unfortunately, today, the legislation of the Russian Federation cannot protect citizens from problems that may arise as a result of signing a gift agreement. For example, even after signing a deed of gift for an apartment with an encumbrance, its new owner has the legal right to begin disposing of the property as he wants.
The new owner can even give it to someone or sell it. Also, no one is stopping him from renting out living space under a leasing agreement.
According to the information set out in Article 572 of the Civil Code, donation provides for the gratuitousness of the transaction and the absence of reversion, especially when sharing the donated property. At the same time, under the terms of such an act with the right to perpetual use of real estate by the donor, it only prohibits evicting him from the apartment.
That is why this type of agreement is usually resorted to by older citizens who want to improve living conditions for their loved ones, but are afraid that after signing the documents they will be evicted from their own living space.
At the same time, it is very important that the donor himself remains registered in the donated apartment! In this case, according to the legislation in force in 2021, he will not only be able to “kick him out the door,” but also be discharged from it.
What rights and responsibilities does the donor of an apartment have?
In addition, an obligatory part of drawing up a deed of gift of the type in question is to indicate in the contents of the gift agreement that the donor, after completing the transaction, has the right to live in the donated apartment indefinitely. This option is safer than the right to use real estate, since the use of donated living space does not determine the list of powers and the fact of living in the apartment.
Expert opinion
Oleg Ustinov
Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.
The provisions of the Family Code of the Russian Federation provide very specific formulations of the obligations of a capable relative during the period of maintenance of incapacitated and disabled relatives. At the same time, these conditions apply not only to those who are included in the category of close relatives, but also to others - aunt, uncle, grandmother or grandfather.
Experienced lawyers on our site recommend doing the following: during the period of drawing up and registering the deed of gift, take care to include in the contract a condition on indefinite residence in the donated apartment with its actual transfer to the donee only after death or at the request of the current owner. As you can see, such a transaction is very similar to the preliminary gift agreement, which we told you about in the last article.
In any case, according to the legislation in force in Russia in 2021, the donor does not have the right to evict if he does not have other real estate with adequate conditions for normal living.
If the owner of the living space, after donating it, decided not to live in the apartment himself, which in no case contradicts the law, this must be urgently included in the terms of the contract, specifying the exact number of cohabitants, as well as the terms and conditions of their residence in this area.
Important
Remember that the person who donated the property has the legal right to live there without paying any money (that is, completely free of charge), which must also be fixed in the contract.
In addition, today there is the concept of a gratuitous and repayable gift, which is worth making a note about in the deed of gift when drawing it up. In the second case, the recipient party assumes the obligation to make regular payments to the donor himself or for rent. In the first case, the property is transferred free of charge with all rights and obligations.
ARTICLE RECOMMENDED FOR YOU:
Nuances of drawing up a gift agreement in accordance with the Civil Code of the Russian Federation
Also, the current owner of the property has the legal right to donate it to a citizen who pays rent, who has taken upon himself the responsibility of paying the full amount to the donor himself. At the same time, the latter can cancel the gift agreement in case of violation of obligations by the donee, without informing him of the decision made.
Thus, the best option would be to retain the direct ability to manage and use your real estate for the rest of your life, confirming this right with appropriate documentation.
Persons who have retained these powers can protect their property both from strangers and from other owners (in our case, the donee), who received their status as a result of drawing up a deed of gift for an apartment with the donor’s lifetime residence.
What rights and responsibilities remain for the donee in 2021?
It is worth noting the fact that if the donor has expressed his desire to continue living in the apartment he has donated, he is also obliged to respect the legal rights of the recipient. However, before the transaction is completed, this person has practically no significant rights. After all, the person who has accepted the property as a gift will be able to dispose of it within the framework provided by law only after registering the ownership of this property.
But, much more important, the recipient is able to protect his rights during the transaction. So he can:
- Accept an apartment as a gift. Having noticed significant violations of the terms of the deed of gift after registration of the transaction, the recipient has the right to demand real estate, acting on the grounds of the owner, described in Articles 396 and 398 of the Civil Code of the Russian Federation.
- Express your refusal to accept the gift without explaining the reasons for your decision, which is confirmed by the provisions of paragraph 2 of Article 573 of the Civil Code of the Russian Federation.
- Dispose of real estate after the transaction is completed, in accordance with Article 209 of the Civil Code.
At the same time, in 2021, there are a number of restrictions on the actions of the donee in relation to the object of the deed of gift and the donor himself, which are aimed at protecting the rights of the latter and the safety of the donated living space, including during shift use of the apartment.
Sale of an apartment in which the donor lives
The donee has the right to sell the property at any time after registration of ownership. The donor's consent is not required for this, and he has no right to create obstacles.
It is enough to notify the potential buyer of the retention of the right of residence after the conclusion of the purchase and sale agreement.
Some buyers subsequently try to challenge the residence, but the courts rarely grant such claims. The fact is that buyers are warned in advance about the presence of such an “encumbrance”, and they have the right to refuse the transaction. If they agree, they accept the seller’s terms.
How to determine the procedure for using an apartment
As we already mentioned above in the article, the procedure for using donated real estate may delimit the conditions for using joint property. The main factors determining the procedure for use are the following conditions:
- A person who has donated an apartment under a deed of gift with the condition of lifelong residence of the donor has the right to use it until his death.
- The recipient can use only one part of this property (usually one room), and the right to dispose of the entire apartment passes to him after the death of the donor.
- Both parties to the transaction have the right to transfer their part of the property to another person, but this must be agreed upon in advance and included in the gift agreement when drawing it up.
- After the death of the donor, the apartment donated by him will be excluded from the inheritance mass and transferred to the donee, in accordance with the provisions of Article 292 of the Civil Code of the Russian Federation.
- When concluding a deed of gift with the legal indefinite residence of the donor, the parties may include in the agreement a condition for other persons to live with them in their part of the apartment.
All of the above and other conditions must be agreed upon by the parties before drawing up and signing the act. However, even in this case, it is difficult to guarantee 100% compliance with the terms by the other party to the transaction. Therefore, we recommend that you contact an experienced notary for support of this transaction, or at least get a free consultation from our lawyer ! Don't risk your future!
State duty and other expenses
If the agreement between the parties was witnessed by signing a document drawn up independently, they can avoid unnecessary costs for the services of a notary.
The pricing of legal services is influenced by the regional location of the institution and the coefficients established by federal legislation for certain types of services.
The amount of the state duty that must be paid to the registration chamber is 2000 rubles. An additional fee may be charged for the issuance of related certificates and extracts, for example, from the BTI.
If the cadastral value of the property is not determined, it is necessary to involve an independent appraisal commission, the services of which are also paid separately.
Taxes and deadlines
Gift tax is charged only if there is no close family relationship between the donor and the recipient. The tax rate, in this case, is standard - 13% of the total value of the property, since receiving a gift is regarded as income.
According to the Family Code of the Russian Federation, the following persons are recognized as the closest relatives:
- spouses;
- parents and children;
- brothers and sisters;
- Grandmothers and grandfathers;
- adoptive parents and adopted children (with official confirmation).
Stages of registration of deed of gift
Like any other legal procedure, the execution of a gift agreement with an encumbrance becomes possible only if the established norms are correctly followed and the main stages are passed, which include:
- First, it is necessary to obtain the consent of the donee to accept the apartment with the agreed conditions.
- After this, the donor must draw up a deed of gift. At the same time, it is desirable that this stage be controlled by a notary, who, after signing the agreement, will independently deliver the necessary documents to the registration authorities.
ARTICLE RECOMMENDED FOR YOU:
Is it possible to cancel a deed of gift for an apartment?
As you can see, everything becomes much easier when you contact a specialist!
On what grounds can they refuse?
- The main reason for refusal is incorrectly collected documents. Usually several certificates or consents are missing.
- Also, the refusal may be from the guardianship authorities if the interests of minors or incompetent persons are affected.
- Also, refusal may come from spouses or other homeowners.
After the reason has been eliminated (consent has been received or all documents have been collected), you need to resubmit the forms to Rosreestr.
Deed of gift with encumbrance in judicial practice
The presence of an encumbrance in the donation agreement for an apartment, according to paragraph 3 of Article 308 of the Civil Code of the Russian Federation, is considered a completely traditional deviation from the main branch of donation in legal practice.
However, in 2021, legal liability does not fully apply to citizens who try to evade or ignore the terms of the agreement. Therefore, when drawing up a document, try to think through all possible situations and provide for the most unexpected events that may happen after the transfer of real estate.
The more conditions are spelled out in the deed, the more difficult it will be to violate the rights of the donor, even after the agreement is drawn up. Also, we recommend that you be sure to indicate in the content the responsibility for violation of the contract by each of the parties.
Current sample of deed of gift with encumbrance in 2021
So, before drawing up a deed of gift with an encumbrance on an apartment, the parties must choose one of three types of such deed of gift:
- typical;
- dependent maintenance;
- or with a perpetual annuity.
However, for each of them, the general drafting rules established by current legislation apply (in addition to the inclusion of conditions specific to each type). So, in order for a deed of gift to have legal force, it must contain the following points:
- Title of the document;
- indication of the place where the transaction was concluded (it is enough to indicate the city or other locality);
- passport details of the parties with a mandatory indication of who is the donor and who is the recipient;
- grounds and circumstances for concluding a deed of gift (with references to articles of the Civil Code);
- rights, as well as obligations of each party;
- the date of entry into force of the agreement and the period for which the agreement is concluded (optional);
- grounds for termination of the deed of gift;
- unique conditions (different for each specific situation), which must be previously discussed by the parties;
- date and signatures of the parties to the transaction.
Sample deed of gift:
Benefit of the parties
By drawing up an agreement in which the donor’s right to continue living in the apartment is discussed as a separate clause, the parties receive certain benefits.
Benefits for the donor:
- the opportunity not to think about a roof over your head after concluding a deal;
- maintaining registration;
- the opportunity not to pay for utilities, home repairs, etc.;
Benefits for the donee:
- registration of ownership rights under a deed of real estate during the lifetime of the former owner;
- a guarantee that the housing will not be inherited by the donor’s relatives;
- absence of requirements on the part of the donor for care and financial support;
- the ability to dispose of living space at your own discretion;
- When receiving a gift from a relative, there is no obligation to pay taxes.
