Features of drawing up a gift agreement between spouses
According to Art. 572 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is an oral or written transaction that signifies the donor’s intention to transfer property or valuables in favor of the donee free of charge. It is possible to transfer a property claim or release from obligations to the donor or a third party.
The transaction is characterized by several legal qualities:
- Inadmissibility of counterclaim. You cannot ask the recipient to transfer money, valuables, or other things in exchange for a gift, or demand the provision of a certain service.
- Indication of a specific item for alienation. Information about it must be contained in the DD, otherwise it is considered void.
- Consensual party: the owner has the right to formalize a contract of promise of donation in the future.
- The real contract comes into force from the moment of signing: from this time, the donee can begin to re-register the right to the donated real estate.
Important! Donation is a two-way transaction and the consent of the recipient is required. He has the right to refuse at any time (Article 573 of the Civil Code of the Russian Federation). If the gift is given orally, a verbal refusal is sufficient. When drawing up a written deed of gift, the refusal is formalized in writing. If registration is made, the refusal is also subject to registration.
A man and a woman who are officially married have the right to give each other any things, real estate and other valuable items. But it is important to consider: property acquired after marriage is joint property.
Based on this, many lawyers and Rosreestr believe that it is impossible to donate real estate, the owner of which is already the donee spouse. Albeit nominally, the parties each own 50% of the common property.
Legal advice: to avoid problems when donating real estate, it is better to allocate a share and issue a deed of trust for it in favor of the spouse. This will significantly reduce the likelihood of refusal of state registration of the transfer of the right to housing.
How to allocate a share in an apartment?
To allocate a share in the apartment, you need to draw up an appropriate division agreement with your spouse and register the changes in Rosreestr. After this, you can freely dispose of your part, incl. and give it to your spouse.
If a marriage contract has been drawn up
The marriage contract abolishes the legal regime of property and establishes a contractual one. According to it, specific property is distributed between spouses and belongs to them individually. They have the right to give it to each other or to third parties under a deed of gift. Preliminary allocation of shares is not required - the values are already fixed between the spouses under the contract.
Briefly: you can gift real estate to your spouse, but after allocating a share. Alienation of property owned by a citizen personally on the basis of a marriage contract is allowed. Without it or an agreement on determining the parts, the application may not be accepted by Rosreestr, because donating common property loses its practical meaning - everyone has equal rights to it.
If the property was purchased before marriage, received as an inheritance or as a gift
If a spouse acquired the property as a gift before registering the marriage, received it as an inheritance or under a DD from another person, such property is recognized as his sole property (Article 36 of the RF IC). He has the right to dispose of it at his own discretion, without obtaining the consent of the other half.
Determining the owner of property purchased during marriage with money set aside before marriage raises many questions. If a spouse managed to make savings before the wedding, but, for example, an apartment was purchased during marriage, it is officially considered community property.
The sole right of ownership can only be recognized in a prenuptial agreement or in court by presenting evidence of purchase using premarital funds.
Rights and obligations
A section on rights and obligations may also appear in clauses of this agreement. In our case, this section is not mandatory, but nevertheless, we recommend that it be drawn up to indicate the obligations of the Counterparties. Below are typical wordings that may appear in the document:
The Donor has the right to: Cancel the execution of the gift agreement if the Donee has committed illegal actions against the Donor, his family or close relatives. Demand termination of fulfillment of obligations under the contract in cases provided for by the current legislation of the Russian Federation. The Donor undertakes to: Donate a living room to the Donee in accordance with this agreement. The donee has the right to: Refuse to accept the above-mentioned real estate as a gift. Use common areas. The recipient undertakes: To return the room in the event of termination of this agreement.
What can spouses give?
A husband and wife can give each other any valuables that belong to them by right of shared ownership, or acquired as an inheritance, by deed of gift, or before marriage. This includes both movable and immovable DD items.
Important! According to Art. 575 of the Civil Code of the Russian Federation, only a legally capable person has the right to act as a donor. Giving on behalf of an incapacitated spouse is prohibited by law. Transactions with the property of a person with limited legal capacity are allowed, but only with the permission of the guardianship authorities, while the donee cannot act as a legal representative, because is an interested party.
Let us consider the features of alienation as a gift of movable and immovable property between spouses in detail.
Real estate
Real estate includes apartments, houses, buildings, structures, land plots and other objects, the movement of which is impossible without destruction.
The husband has the right to give his wife real estate purchased before marriage, received during marriage as an inheritance or by gift. Alienation of housing owned solely by him on the basis of a marriage contract is also allowed. An alternative option is to draw up a division agreement with the subsequent alienation of a part under the DD.
It is important to consider that the transfer of a private residential building is carried out together with the land plot on which it is built. Separate alienation is prohibited.
Movable property
Movable property is property that can be moved without the threat of loss: money, cars, expensive jewelry, and other valuables. To do this, it is enough to allocate a part of the right by drawing up an agreement.
Important! Unlike real estate, where registration of changes in the number of owners or transfer of rights is mandatory, it is not necessary to register an agreement on the allocation of shares in the right to vehicles and other movable things. Moreover, for the alienation of movable property it is not necessary to put everything in writing - the contract is considered concluded at the moment of transfer of the thing, keys or title documents. Oral form is sufficient.
It should be taken into account that when determining shares in the right, the car is registered under the name of one owner, but in the STS, special notes indicate that the vehicle is in shared ownership.
How to draw up a vehicle donation agreement? Form, documents, practical advice from a lawyer
What is a donation agreement and how to draw it up correctly? Legal advice
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Is the consent of the second spouse required?
According to Art. 35 of the RF IC, alienation of common property in favor of third parties is carried out with the consent of the spouse. If the transaction is subject to state registration, the consent is certified by a notary. As mentioned earlier, it will not be possible to donate common valuables purchased during marriage - they already belong to both parties in equal proportions, although without the actual allocation of shares in the right.
Everything is different if the apartment is in shared ownership, or belongs to a person solely on the basis of a marriage contract, and the alienation is made in favor of the second spouse. In this case, his consent will not be required. In addition, this spouse also acts as a donee, which already confirms the fact that there are no disagreements regarding the transaction - this is confirmed by his signature.
Briefly: a notarized consent of the spouse for a gift to him will not be required. You can donate both movable things and real estate, having previously allocated shares, concluding a marriage contract or a division agreement.
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.
Is it possible to draw up a deed of gift without a notary?
The contract is subject to notarization if a part in real estate that has several owners is donated.
When alienating property in sole ownership, the signature and seal of a notary will not be required. Legal advice: it is better to contact a notary, even if this is not required by law. Notarization will reduce the likelihood of challenging the transaction and confirms that the citizen at the time of signing the DD was legally capable and not intoxicated, and the recipient did not contribute to the alienation of the “gift” through violence.
Cost of notary services
Certification of a real estate transaction will cost 0.5% of the cadastral value, but not more than 20,000 rubles. When alienating movable property, Art. 22.1 “Fundamentals of legislation on notaries” establishes a notary fee in the amount of 0.3% of the contract amount, at least 200 rubles.
Lawyer's answers to frequently asked questions
Who pays taxes when donating a room?
If the room is donated to a close relative, taxation does not apply (Article 217 of the Tax Code of the Russian Federation). The rest of the donees who are not relatives of the donors (spouses, sisters, brothers, parents, children) pay 13% of the cadastral value of the donated property.
Is it possible not to contact a notary when donating a share?
No, Rosreestr will not accept an agreement without notarization.
How much does it cost to draw up a deed of gift from notaries and lawyers?
Notaries usually charge from 5,000 to 20,000 rubles for technical work. depending on the region. For lawyers, such a service will cost 2,000-5,000 rubles.
There are two owners in the apartment, one is a minor child. Can the second person donate his share without the consent of the guardianship authorities?
Maybe guardianship permission won't be required.
Is it possible, instead of a purchase and sale agreement, to draw up a deed of gift for a room in a communal apartment, so as not to require the consent of the other owners?
In theory, this is possible, but according to the law, such an agreement can be declared invalid on the basis of Art. 170 Civil Code of the Russian Federation. The transaction is considered sham, i.e. committed to cover up another transaction.
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.
Content
Since we are talking about real estate, the deed of gift is drawn up according to the standard scheme. First, indicate the name of the document, as well as the place and date of its preparation.
Next, the parties are listed, that is, the donor and the donee, and it is also mentioned that these parties agree to complete the transaction .
The following paragraphs describe the fact of transfer, that is, what kind of real estate is transferred from the donor to the donee.
If there are any conditions, for example, the gift has been made, but the former owner remains to live in the living space, this must also be indicated.
After all the nuances are described, and you can also describe the donated property, a date is put, as well as the signatures of the parties with a transcript, thereby making it clear that the subjects agree to continue to participate in the registration.
Are there any differences from the agreement of donation of part of an apartment in the usual form? Since we are not talking about the entire apartment, but only about some part of it, it is advisable in the agreement not only to indicate the size of this part, but also what is actually included in it , so that the new owner can easily find his new property, while without encroaching on someone else's.
How to register a deed of gift for real estate in the name of a spouse: step-by-step instructions
Before drawing up an agreement, you need to agree on the transaction with the donee spouse, then draw up a deed of gift and, if necessary, have it certified by a notary. If real estate is donated, the re-registration of the right is registered in Rosreestr.
Note! You need to decide in advance who will bear the costs of the DD certificate. This is true when spouses have separate budgets. Usually the donor pays for everything, but other terms can be negotiated
Step 1: approval of the deal
During the approval process, you need to find out what will be donated, in what share (size), and whether notarization is required. Also at this stage, expenses are distributed as agreed.
Step 2: drawing up a gift agreement
You can draw up a DD yourself, contact a lawyer or a notary. Lawyer services will cost approximately 2,000-3,000 rubles, notaries charge more - from 5,000 rubles.
Sample contract
It is important to reflect the following points in the deed of gift:
- Full name, registration addresses, passport details of the parties;
- the property regime in force in the family: general or contractual;
- the size of the part alienated in favor of the donee under the DD;
- address, location of the apartment, area, floor, year of completion of the house, technical data;
- details of the certificate of ownership;
- when alienating a car - make, model, color, license plate number, VIN, STS and PTS details;
- date of entry into force of the transaction – from the moment of signing or in the future.
Note! The contract for the promise of a gift in the future must contain a specific date from which the donee will be able to use the gift.
Sample gift agreement between spouses: alt: Gift agreement between spouses
Documentation
The list of documents depends on the item of donation transferred under the DD.
You will definitely need:
- passports;
- marriage contract (if any);
- agreement on the allocation of shares.
Additionally, depending on the availability:
| Automobile |
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| Share in an apartment |
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| The apartment is the sole property of the donor. | |
| House |
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| Land plot |
|
Step 3: Notarization
If the transaction requires certification by a notary, you need to come with a ready-made package of documents and sign everything in his presence. You can order the registration of a deed of gift at a notary office, but the service is paid separately from the tariff and state duty. The amount of the fee depends on the prices established by the regional notary chamber.
Step 4: visit Rosreestr
You only need to go to Rosreestr to register the right to the donee when transferring real estate as a gift. Instead of Rosreestr, you can submit everything through the MFC, having previously made an appointment. Both must be present.
Documentation
When visiting Rosreestr or the MFC, you need to take with you the same written information as for drawing up the DD. The deed of gift for registration is provided to an employee of the institution and is returned after the procedure to the donee with the appropriate note.
State duty
Re-registration of rights to real estate in Rosreestr costs 2,000 rubles.
Step 5: obtaining a new extract from the Unified State Register of Real Estate
After 10 working days, the recipient must come to the MFC or Rosreestr for a new extract, where he will be indicated as the new owner.
Item
The main essential condition of any contract is its subject matter. In our case, the subject is the room being donated. The item section should include room details. It looks like this:
The Donor gives the Donee the following property as a gift: a living room in an apartment located at the address: Kurgan region, Kurgan city, Blucher street, communal apartment number 66. The total area of the room is 15 (Fifteen) square meters. The real estate object being donated, until the entry into force of this agreement, belongs to the Donor by right of ownership according to the state registration certificate. The parties to this agreement are close relatives to each other, namely father and son. The party receiving the room as a gift is entitled to use common areas, namely: kitchen, corridor, bathroom, balcony.
Challenging a gift agreement
The possibility of cancellation is provided for in Art. 578 Civil Code of the Russian Federation.
The donor has the right to challenge the transaction and return the gift if:
- the donee commits a crime against his life and health, the health of other relatives;
- the recipient treats the donated values in bad faith, there is a risk of irretrievable loss, and for the donor the gift is of non-property interest.
The heirs of the donor who died due to the fault of the donee have the right to contest - by a court decision, the property is alienated in their favor and included in the estate.
If a person has accumulated debts before registration and has filed for bankruptcy, creditors can cancel the deed of gift, provided that it was drawn up no earlier than six months before going to court.
Let's look at a practical example:
A woman gave her husband an apartment purchased before marriage. A few months later, their relationship deteriorated: her husband began to beat her, she demanded a divorce. The donor also went to court to cancel the transaction. The basis was the fact of systematic beatings by the recipient.
Medical certificates and information from the police confirming the existence of grounds were presented to the court. As a result, the claims were satisfied and the apartment was returned to the woman’s ownership. After the decision came into force, she applied to Rosreestr to re-register the documents.
Arbitrage practice
Courts often grant claims to cancel DD if plaintiffs provide sufficient evidence.
Below are some example solutions:
- Decision No. 2-846/2019 dated May 30, 2021 in case No. 2-846/2019;
- Decision No. 2-1941/2018 2-225/2019 2-225/2019(2-1941/2018;)~M-1964/2018 M-1964/2018 dated February 20, 2019 in case No. 2-1941/2018 ;
- Decision No. 2-1238/2017 2-66/2018 2-66/2018 (2-1238/2017;) ~ M-1084/2017 M-1084/2017 dated February 27, 2021 in case No. 2-1238/2017 .
Important! In judicial practice, there are decisions to cancel on the basis of a conclusion under the influence of delusion, when the donee, taking advantage of the helpless state of the donor, “pushes” him to draw up a deed of gift.
Document form
If a couple of years ago a document could be drawn up in writing, that is, by hand, today, most likely, it will be refused acceptance.
The fact is that written paper is poorly stored, it cannot be entered into a computer database, and the text is not always easy to read by Rosreestr employees. Some words are not readable at all, thereby losing their meaning.
The printed method is acceptable for a number of reasons. Firstly, the document will be easy to read, which means that they will be able to correctly understand it, evaluate it and not call you on unnecessary questions .
Secondly, it can be easily scanned and entered into the appropriate database . This will greatly simplify archiving.
In addition, by typing on a computer, you can correct mistakes without having to retype the text.
Having a form at hand (which can be found on the Internet), you can easily fill in the information you need and speed up the time it takes to compile the paper, as well as avoid mistakes .
Find out on our website about the pros and cons of an agreement on the transfer of an apartment as a gift, its types, as well as what is better to formalize: a donation, a will or a purchase and sale.
How to deal with taxes
If a close relative receives a gift, then he will not have to pay income tax (NDFL). In other cases, citizens pay 13% of the value of the property received as a gift, and foreigners – 30%. Relatives are considered close:
- Children and parents.
- Grandparents and grandchildren.
- Brothers and sisters.
The donor is not obliged to bear the costs of registering the transaction and pay taxes; all costs are required by law to be paid entirely by the one who receives the gift.
The guideline for calculating the tax is Letter of the Ministry of Finance No. 03-04-05/21903 dated 05/08/2014, according to which the price of an apartment and its share is taken to be equal to the cadastral valuation. The law allows us to accept the estimated value for tax payment as 30% less than the cadastral value, but not when the contract price for the share is 1 million rubles. or less (cadastral valuation is equal to 1,428,571 rubles or less). This rule came into force on January 1, 2016.
On what terms is a contract for a share in an apartment drawn up?
This type of transaction is unconditional.
Such a transaction does not legally provide for:
- possibilities of reciprocity from the recipient of the gift:
- maintenance of the giver by the recipient of the gift until death;
- the possibility of obtaining other benefits;
If such clauses are included in the gift agreement, they can be successfully challenged in court.
True, the donor can include in the contract his own conditions for the right to take possession of the property.
Including:
- reaching a certain age;
- graduation from college or university;
- marriage of the recipient;
- the birth of the gift recipient's own children and much more;
The presence of such conditions is indicated by a special mark informing about the encumbrance of the transaction. Until the mark is removed, any transactions with the share are impossible.
The disadvantage of this version of the document is its potential challenge in court. Choosing this option requires mandatory contact with an experienced and competent notary.
What to pay attention to
Sometimes the gratuitous transfer of a share occurs not at the request of relatives, but by force of law. Residential premises purchased or built using maternity capital funds are, by law, registered as the common property of parents and children, with the size of shares determined by agreement. But housing is often purchased with a mortgage, and banks, as a rule, do not want even part of the real estate pledged to belong to minors. And parents are forced, when receiving maternity capital funds, to register the acquired residential premises in their name and write an obligation to transfer part of the housing to their children as their property after repaying the mortgage. This turns out to be a future gift agreement for allocating a share to a child for Sberbank and other banking institutions.
About the author of the article
Elena Turkina Practicing trial lawyer. Lives and works in St. Petersburg.
Submission of documents
What papers are required? In order to donate a share in an apartment to a spouse, the parties are required to have their passports , as well as documents on the ownership of the share in real estate and, if possible, technical documents .
Do not forget that you do not live alone in this property, and since there are co-owners, you need to obtain their written consent.
Where to submit? The collected papers, along with the agreement, are submitted to the branch of Rosreestr - the body that monitors and formalizes all transactions carried out at your place of residence.
Read our article about how to complete a transaction through the MFC.
