An agreement to donate a room in a communal apartment is considered one of the types of gratuitous transfer of property rights to another person, be it a relative or a complete stranger. This type of gift is quite common in modern society, and, importantly, very simple to design. Although it has a number of nuances that still need to be observed in order to implement it correctly.
What is the procedure for drawing up a gift deed for a room in a communal apartment?
When agreeing to donate a room in a communal apartment, you need to take into account all possible nuances and be sure to include them in the contract. Regarding the procedure for completing such a transaction, it consists of the following actions:
- First of all, it is worth discussing the issue of donating a room in a communal apartment with the person to whom it will be given. The whole point is that he has the right to refuse such a gift, therefore a unilaterally drawn up agreement will be void.
- Then you will need to decide what type of contract will be concluded. Since such a document can be drawn up independently, you can also use the services of a notary, or you can contact Rosreestr with a request for help in this matter.
- And of course, you will need to collect all the necessary documentation, which is directly related to such an agreement.
Making a deal
Registration of a transaction consists of several stages. First, the parties or their legal representatives need to negotiate to determine the terms of the future agreement. During the process, each party can demand documents from the other.
In this case, the donor has the opportunity to make sure that the recipient has the right to enter into transactions independently, since the latter may be limited in this right due to age or health status. Another participant may demand from the owner documents that confirm the latter’s legal capacity. This applies to the ability to enter into contracts personally or through a representative.
Supporting documents in this case are passports, a power of attorney from a legal representative, a gift, exchange or sale agreement that a person previously entered into, a certificate of ownership or an extract from the Unified State Register.
It would also be useful for the recipient to make sure that the room is not encumbered with obligations, that is, it is not in collateral or under arrest, and there is no debt to pay for utilities. To do this, you can ask the donor for a certificate. After the parties have received the information they need, a draft agreement is drawn up. You can do this yourself or use the services of a qualified lawyer. The latter option will incur additional costs. However, this will give a greater guarantee that the transaction will comply with the requirements of current legislation, and then there will be no problems with paying for utilities.
The text of the contract must indicate the following:
- Date and place of signing.
- Information about the parties to the transaction - the names of each, passport details or powers of attorney of legal representatives.
- Subject of the transaction. Here you must provide a detailed description of the room - location address, total area.
- Rights, obligations and responsibilities of the parties.
- Details and signatures of participants or their legal representatives.
The room donation agreement is subject to state registration. To do this, a person can personally contact the Rosreestr authorities, send information by mail or through a multifunctional center. To register a transaction, a person will need to fill out an application and attach to it a receipt for payment of the state duty, an agreement in three copies, his passport, and a power of attorney from the legal representative, if one performs all the actions. Documents can be sent in the form of certified copies. A specialist from the registration authority has the right to demand that the originals be presented for verification.
Documents required for drawing up a deed of gift
Donating a room in a communal apartment has one of the important conditions. Its essence is that the donation room should have the status of a communal apartment. Otherwise, the agreement will be recorded as a donation of a share in the designated property. But the list of papers also includes:
- The mandatory presence of passports of both parties - the donor and the person for whom it is intended.
- A certificate confirming ownership of the specified room must be required.
- Papers that indicate the grounds for receiving such real estate into ownership (purchase, exchange, inheritance, under a gift agreement, privatization).
- An extract from the house register, which indicates information about all citizens registered in the living space.
- Availability of a notarized permission of the spouses if the room is jointly owned. It is very important that such permission be obtained from both the donor and the recipient.
- In the case where a communal room is donated to a stranger, you will need to provide the certified consent of the property owner.
- You will also need to provide an extract from the Unified State Register, which indicates information about the absence of encumbrances regarding this room.
- A cadastral as well as a technical passport of the living space must be available.
- A certificate indicating the absence of debts for utility services.
It is worth noting that all of the above papers are available to the bona fide owner, but as for extracts from the Unified State Register and proof of the absence of debts, they have statutes of limitations, this must certainly be taken into account when collecting documents.
General features of donation
Donation is a transaction in which the donor presents his gift absolutely free of charge to the recipient, that is, transfers ownership rights to him (Civil Code of the Russian Federation, Part 2, Article 32).
Donation has some disadvantages:
- payment of a tax in the amount of 13% of the market value of the gift (apartment, room, share in the ownership of housing), if the parties are not closely related (you can read who close relatives are here);
- Such a transaction quite often becomes the subject of litigation. Moreover, the reason for this is precisely its gratuitousness - the court may side with the plaintiff if the donor is elderly, in poor health, or belongs to a socially vulnerable part of society;
- a gift is always unconditional - it is impossible to register a gift transaction if it contains any conditions.
Positive aspects of giving:
- simplicity of the transaction itself. This does not require a huge amount of paperwork;
- the donor is not obliged to seek the advice and approval of neighbors to make a gift;
- the donee's ownership right arises at the moment of transfer of property and signing of the deed of gift (unless otherwise stated in it).
In addition to the contract, a number of documents are required:
- title documents;
- privatization agreement;
- certificate of inheritance;
- purchase and sale agreement, court decision;
- certificate of state registration of rights;
- if necessary, an additional list of documents.
- cadastral passport, technical passport;
- originals and copies of passports of the parties.
What it is recommended to pay attention to when drawing up a room donation agreement
Despite the fact that such an agreement is simple to draw up, it requires special attention to details, which must certainly be agreed upon and indicated. Points of great importance:
- Initially, the agreement indicates the place and date of execution of the gift agreement.
- Then you will need to indicate information about the relevant participants, that is, all passport data.
- The next point should be a description of the object of the contract. In our case, this is a room in a communal apartment. Here you will need to indicate a complete description indicating the number, total area, number of floors, and address. Also auxiliary premises, the material from which the house is built. Although the donation agreement is considered gratuitous, it is absolutely necessary to indicate the cost of such a room.
- Next, a clause is written that clarifies the rights and obligations of the participants in the donation, as well as possible reasons and options for terminating the donation agreement, even in court.
- Afterwards, it is worth indicating the degree of confidentiality, that is, if the participants do not want to inform anyone about the action being taken, this is also worth noting. Because the injured party has the opportunity to demand compensation for damage.
- It is considered integral to designate methods for resolving controversial issues regarding the object of the gift, which can be resolved in accordance with the current legislation or in court.
- The next place should be the place of registration of the document drawn up, so you will need to indicate the registering authority, as well as indicate the time from which the gifted person can take possession. At this point it is worth completing the transfer deed.
- The donor must provide documentary evidence that the alienated living space does not have any onerous obligations.
- The addresses of all participants present during the execution of such an agreement are indicated.
- The final point will be the signing of the contract by the parties with the obligatory decoding of the signatures.
A sample donation agreement can be viewed on the official website of Rosreestr, and you can also download such a form. Next, fill out all the necessary points, taking into account all the nuances in the presence of all parties to the agreement.
Transfer of property to the donee
According to general rules, ownership passes to the donee from the moment the property is transferred. Documentary evidence most often serves as an act signed by the parties to the transaction. However, donating a room has its own characteristics. This is due to the fact that the right must be registered with Rosreestr.
The procedure is carried out in a manner similar to fixing the transaction itself. The person must draw up a written application, to which is attached a gift agreement in triplicate, a receipt for payment of the state fee, the initiator’s passport or a power of attorney from the legal representative, a certificate issued by a notary.
You can submit information yourself, by mail, through a legal representative or MFC. A person chooses each option at his own discretion.
Do I need to pay tax and state duty when drawing up a deed of gift?
Any transactions carried out with real estate are subject to mandatory state registration and, accordingly, payment of a fee. In addition, the legislation also provides for the payment of tax when performing actions in relation to living space. But regarding the issue of donation:
- Related deal. Real estate is not subject to taxation if transactions are made between close relatives.
- Transaction with a resident third party. If a deed of gift is drawn up for a room in a communal apartment to a stranger, then he is obliged to pay income tax in the amount specified by law, namely: 13%, but provided that he is a resident of the Russian Federation.
- Gift to a non-resident. For non-residents the tax amount will be 30%.
Income tax must be paid by June 15 of the year following the date of the agreement.
Regarding the state duty, it is required when registering a transaction, as well as when re-registering ownership of real estate. The fee is 2,000 rubles for individuals, but if such a document is drawn up by a notary, then the state fee will be 1% of the estimated cost of the room in the communal apartment plus the services provided by it. To re-register real estate in Rosreestr, you will need to pay a fee of 350 rubles.
Paying taxes
Any property transaction is subject to tax. However, Article 217 of the Tax Code of the Russian Federation contains a list of cases when such a rule does not apply. These also include transactions involving donations of property. It should be noted that the rule of law states that this condition does not apply to cases where real estate is donated. That is, the transaction with the room is subject to tax.
The exception in this case is the connection between participants. If they are spouses, parents and children, both natural and adopted, grandparents and grandchildren, brothers and sisters, including only one parent, that is, not full-blooded, the tax is not paid. This rule also applies to consular employees and members of their families if they act as recipients. This is determined by the Vienna Convention on Consular and Diplomatic Relations.
The amount of amounts to be paid is calculated taking into account the value of the property. The tax depends on the presence of Russian citizenship: for residents, that is, persons who lived in the country for more than one hundred and eighty days a year - 13% of the value of the gift, and for non-residents - 30%.
Nuances that should be taken into account when drawing up a gift agreement
Each transaction includes certain nuances that may affect the fact of drawing up a gift agreement both at the time of its completion and after signing. These nuances are considered:
- In the case of an agreement to donate a room in a communal apartment, close relatives do not need the consent of the neighbor or neighbors in the living space.
- If a minor child is registered in the hostel, then all rights regarding living space are vested in his legal representatives. But upon reaching the age of majority, he has the right to make property claims on the designated property.
- Since the room is still considered communal, the right of ownership extends only to this part of the living space, and the rest belongs to public property (kitchen, bathroom, common corridor).
- In addition, it is possible to donate a share in the apartment to a third party for further sale of the entire room. But in this case, neighbors may have complaints about the insincerity of intentions.
- Another disadvantage is the fact that such a transaction can be challenged after 3 years.
- In the gift agreement, the donor, in order to protect himself from unlawful actions of the donee, has the right to include a clause on his lifelong residence in the designated living space.
Who should attend?
The transaction must be attended by persons who have property rights to the transferred object. If you are married and the property was purchased during this period, the presence of a partner will be required.
In addition to you, the recipient and his spouse are required to be present if he is married. He will also be required to agree to accept the gift.
If the owner is a child over 14 years old, and you are his legal representative, his presence when signing the contract is also necessary.
The presence of co-owners in the communal apartment is not required.
Possible options for canceling a gift agreement
Unlike a testamentary document, a gift agreement is considered irreversible, but possible options for its termination are still allowed. Such conditions may be:
- When a person who received a communal room as a gift made an attempt on the life of the donor himself or his family.
- If the donee commits illegal actions that lead to the destruction or destruction of value.
- In the event of the death of the donee before the donor himself.
- The basis will also be an indication in the gift agreement that all property rights to the room in the hostel will be transferred to the gifted person only after the death of the donor.
- The reason for termination may also be a deterioration in the health of the donor himself.
- If it is established that in this way there was an attempt to circumvent mandatory government payments.
https://www.youtube.com/watch?v=Cp0RFsMsyXs
To simplify the procedure for cancellation or termination, it is recommended that a separate clause be identified in the contract itself and spell out possible situations that may become the basis.
Consent of the spouse to such actions
As in other cases of donation, married citizens are forced to attach to the list of documents for registration of the deed of gift the spouse’s consent to donate a share in the apartment, that is, to alienate joint property. It is drawn up in writing and certified by a notary. You can see a sample below or.
Sample consent of a spouse to donate a share in an apartment
Sample consent of a spouse to donate a share in an apartment - 1
Sample consent of a spouse to donate a share in an apartment - 2
YOU may also be interested in the issue of donating a privatized apartment, a share in it or a house. Here you will find answers to all these questions.
How to reduce real estate taxes when selling
According to the norms established there, the following are exempt from tax on a donated apartment:
- grandparents, and grandchildren;
- brothers, sisters (both full and half-blood);
- adopted and natural children, as well as their parents.
A share cannot be donated if other obligations are imposed on it. For example, an apartment may be pledged to a bank if a loan is taken as collateral.
The tax amount is now determined as 13% of the cadastral value of the donated apartment or house as of January 1 of the year in which the transfer of ownership to the donee was registered. For tax non-residents, the tax rate increases to 30% (Article 214.10 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 04/28/2020 No. 03-04-05/34402).
The third condition is that the amount of the deduction should in no case exceed the amount of taxes paid to the budget.
Separate premises as an independent object of housing and civil law
A room is one of the types of separate premises. The criteria for its determination are enshrined in paragraph 4 of Art. 16 of the Housing Code. According to this norm, this is a part of a house or apartment that is intended directly for living in it. There are several types of such living space: in an apartment, in a communal apartment and in a dormitory.
This is an independent object of housing law, which, on the basis of Art. 15 A residential complex is defined as a place to live in it. Here it is necessary to understand that such a place can only be a living space: neither the kitchen, nor the bathroom, nor the shower room belong to them. However, having purchased a residential property in a dormitory, a citizen will automatically have the right to use all common premises.
Like any piece of property, such residential space can be alienated in any way. It can also be given as a gift to another person. In order for the donee to have legal rights to the received living space, he must receive some special documents confirming his status as the owner.
In the case of a gift in the form of housing, such documents are the contract itself (Article 572 of the Civil Code) or a deed of gift and an extract from the Unified State Register of Real Estate, indicating state registration of property rights (Article 574 of the Civil Code).
What is shared ownership
As you can guess from the name, shared ownership is closely related to the concept of common property, which is formed in relation to indivisible property that is owned by several persons at once or in relation to certain divisible property, if common ownership of this divisible property was established by agreement of persons or , according to the requirements of the legislator.
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, common joint property (for example, movable and immovable property acquired by spouses during marriage) is significantly different from shared property, which implies the entry of property into the ownership of several persons at once, determining the size of their shares (while in common joint property property can be registered in the name of one person).
Thus, when establishing shared ownership in 2021, each of the real owners receives a strictly defined part of the property, which depends on the size of the common property, the number of owners, etc. For example, the volume of each share can be established on the basis of the content of the agreement between the owners or on the basis legislative norms. In the event that the size of the shares has not been established, according to paragraph 1 of Article 245 of the Civil Code of the Russian Federation, it is recognized as equal!
ARTICLE RECOMMENDED FOR YOU:
Is it possible to donate an apartment with a mortgage?
