Mitrofanova SvetlanaLawyer. Work experience - 15 years
Hello. Since 2014, I have helped 29 clients conduct transactions to donate their apartments. Now the law has changed, so the instructions for drawing up a deed of gift have also changed.
To formalize the donation of an apartment you need to: 1) draw up a donation agreement; 2) donors and recipients must sign it; 3) submit the agreement along with other documents to the MFC or the Registration Chamber (UFRS) so that the transaction is registered there.
The instructions on this page are suitable for most cases. I have also published separate instructions depending on the situation, you can choose:
- Donating an apartment to a close relative. For example, to your adult child/children or minor child/children;
- How can a husband give his wife an apartment that was purchased during marriage?
When might a power of attorney for donation be needed?
A power of attorney is a document according to which one citizen (principal) authorizes a second citizen (attorney) to represent interests before a third party.
It may also be needed when donating in several situations:
- The donor cannot be present at the transaction in person: he is sick, is abroad, etc.;
- The donor is a legal entity, and the founder or director cannot formalize the deed of gift personally. The document appoints a legal representative.
The form of the power of attorney depends on the type of transaction. According to Art. 574 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is drawn up in writing if real estate is being donated, the donor is an organization and the value of the gift exceeds 3,000 rubles, or the citizen promises to give a gift in the future. In other cases, an oral transfer of the gift is sufficient.
Important! If the DD requires notarization, then the power of attorney must also be certified by a notary. A power of attorney agreement without a certificate is signed only in a notary office.
Legal Advice: Even if the law does not require a notarial form, it is better to contact a notary. The presence of his signature will significantly reduce the likelihood of challenging the transaction and protect the interests of both parties - the donor and the donee.
Is it possible to draw up a deed of gift without a notary?
The donation agreement (hereinafter referred to as the DD) is discussed in Chapter. 32 of the Civil Code of the Russian Federation. It is concluded in written or oral form, and requires notarization only in a few cases:
- A share in the right of common ownership is given by one of the owners;
- The property of a minor or person with limited legal capacity is alienated;
- The property is managed by a guardian;
- Documents for registering property rights are sent by mail;
- The agreement of the parties provides for certification.
In all other situations, a notary’s signature is not needed, but there are certain features of drawing up a deed of gift without a notarization.
Legal advice: when concluding a contract, the notary makes sure of the legal capacity of the parties, explains the rights, obligations and consequences, so it is more difficult to challenge a certified contract. If you want to protect yourself, it is still recommended to contact him.
Sometimes a DD does not require notarization, but other documents must be certified by a notary. The requirement applies to a power of attorney if the donee or donor cannot personally sign the agreement.
If real estate acquired by the donor during marriage is given, the notarial consent of his spouse will be required (Article 35 of the RF IC). Otherwise, the husband or wife will be able to challenge the transaction within 1 year from the moment they became aware of it.
Important! If there is a marriage contract that states that the donated property belongs exclusively to one spouse (the donor), the notarized consent of the second is not necessary.
Features of registering a deed of gift without a notary
A notary's signature is not required if the property, car or other property is managed by a single owner. He has the right to donate housing in full or a share in the ownership. If the share is allocated in kind, it is given as a gift.
You do not need a certificate when donating real estate purchased during marriage to children shared with your spouse, but notarial consent will be required from him.
There is no need to contact a notary when alienating shares in the ownership of housing by all owners at the same time - this measure was introduced on July 1, 2021.
What can you give by proxy?
Citizens and legal entities can draw up deeds of gift for different types of gifts that belong to them as property:
| What is given | Peculiarities |
| Real estate |
|
| Movable property (car, money, jewelry, etc.) | Oral donation is possible. When drawing up a DD on paper, a simple written power of attorney is sufficient. |
| Property owned by an organization under the right of operational management or economic management | The consent of the actual owner for the transaction will be required |
| Right to claim debt | The debtor's consent is not necessary, but written notice of the transfer of the right of claim is required |
| Fulfillment of debt obligations of the donee | The deal is agreed upon with the lender |
Features of donating movable property
Is a gift agreement valid after the death of the donor?
Deed of transfer of property
Any transfer of property rights is reflected in the corresponding act, which serves as an integral part, as well as an important component of the gift agreement. It serves as confirmation that the donation was carried out as a fact, and the recipient received the property. Several copies of the act are always drawn up, each party receives it. Documents of this type reflect the nuances relating to the transferred property or rights. The parties also certify that there are no claims of any kind.
All possible defects of the property are indicated in the deed; they serve as a certain insurance for the donor so that in the future he does not have claims regarding the object of the transaction.
Features of donation by power of attorney
The main rule regarding the power of attorney is established in paragraph 5 of Art. 576 of the Civil Code of the Russian Federation. According to it, the document must contain information about the donee and the subject of the donation (gift). Without such information, the power of attorney is void, and it is impossible to draw up a DD using it. For example, it will not be accepted when registering a transfer of ownership in Rosreestr, and in general the transaction will be easier to challenge.
There are other rules:
- The donor's representative does not have the right to make transactions in relation to himself and act as the donee (clause 3 of Article 182 of the Civil Code of the Russian Federation);
- Powers of attorney on behalf of citizens in prison, in military service, in stationary social organizations, with the signature of an authorized leader, are equivalent to notarial ones. He certifies the document, because a person does not have the opportunity to come to a notary’s office;
- To transfer a gift from a legal entity, a power of attorney is issued by the head or other authorized citizen in accordance with the constituent documents and legislation (Article 185.1 of the Civil Code of the Russian Federation).
Note! If an attorney acts on behalf of the company when donating by proxy, you will need not only the signature of the manager, but also a seal.
Is it possible to challenge a deed of gift drawn up without a notary?
The contract is contested on the grounds specified in Art.
578, art. 166-179 of the Civil Code of the Russian Federation, regardless of the presence or absence of a notary’s signature. But when contacting a notary office, a specialist will immediately notice legal errors and will not allow the preparation of a deed of gift, which can be canceled in the future. What are the grounds for canceling a transaction:
- Drawing up a feigned DD to cover another transaction: barter, sale;
- Execution of an imaginary agreement without creating further legal consequences - transfer of the donated property to the donee;
- An attempt by the donee on the life and health of the donor or his relatives;
- Signing a contract under the influence of threats, violence, blackmail;
- Drawing up a deed of gift under the influence of a misconception regarding the consequences or nature of the transaction.
The donor's creditors have the right to challenge the agreement if the property is alienated free of charge within 6 months after the decision on its bankruptcy enters into legal force.
The right to challenge is also granted to the heirs of the donor who died as a result of the donee’s intentional criminal actions.
To cancel a transaction, you need to go to the district court with your passport and evidence confirming the grounds for cancellation.
Types of powers of attorney and their differences
The Civil Code of the Russian Federation provides for several types of powers of attorney: one-time, special, general.
According to their form, they are divided into two subtypes: simple written and notarial. There are also distinctions based on the validity period: urgent, issued for a specific period, and unlimited - drawn up for an indefinite period of time: it is canceled strictly in certain cases. Powers of attorney are also divided according to the number of parties to the transaction: unilateral, where the interests of one donor are represented by one attorney, and multilateral, involving several principals and attorneys.
For donations, powers of attorney are of greatest importance in terms of the scope of powers. Let's look at them in detail.
One-time power of attorney
A one-time ticket is issued for a representative to perform one specific action. When donating, you can indicate that the citizen is only authorized to sign the DD or submit documents for registration.
Legal advice: a one-time power of attorney is the best option for giving. It strictly limits the rights and capabilities of the representative, thereby reducing the risks of the principal.
Special power of attorney
A special one is issued for performing similar actions during a certain period. According to it, the representative has the right to sign the DD or submit documents for registration several times. This option is not very suitable for donation if you need to issue only one deed of gift.
General power of attorney
The most dangerous option for the donor is a general power of attorney. It does not limit the attorney’s powers, and he will be able to use it to perform any actions with property: donate, exchange, sell.
Legal advice: even if you completely trust a person, it is recommended not to issue a general power of attorney for him. It is better to limit yourself to a one-time or special one in order to preserve relationships and property.
Service No. 2 - Submitting an agreement to register a transaction
Now the notary is obliged to submit a notary agreement for registration himself, FREE OF CHARGE AND ON THE SAME DAY. This is already included in the transaction certification service - Art. 1 of the Federal Law of August 3, 2018 N 338-FZ and clause 2 of Art. 22.1 Basics about notaries.
Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to submit electronically, the documents must be submitted in paper form, and the registration period will be 3 business days after submission. All this is indicated in paragraph 9 of Art. 16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ.
The recipients must pay the notary only the state fee for registering the transaction - 2,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount - you only need to transfer 1,400 rubles. The state duty is paid by the donees, because the ownership rights are transferred to them.
After the transaction is registered in Rosreestr, the documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.
In general, the parties can submit documents for registration independently - instructions.
Useful links - How to register a donation of an apartment with a notary in 3 steps; Find a notary “near me” on Yandex.Map - displays customer reviews and ratings, addresses, phone numbers, opening hours, etc.
How to donate real estate by power of attorney: step-by-step instructions
The procedure is similar to an independent donation by the parties, but there is one step in it - the execution of a power of attorney for the representative. Both the donor and the donee have the right to do this if they cannot be present at the transaction in person.
Important! The agreement can be signed in person, and a power of attorney can be issued to an attorney to register the transfer of ownership, because the presence of all participants in the transaction is required. If it is not possible to sign the DD, a representative has the right to do so.
Step 1: agreement with the donee
First, you need to agree on the deal with the recipient of the gift: tell him what property is being transferred to him, when and where to sign the deed of gift. This step is important because... he can refuse the deal (Article 573 of the Civil Code of the Russian Federation).
Step 2: execution of a power of attorney
It is necessary to find a person to represent your interests. It can be a relative, acquaintance, friend - the choice is left to the principal. If the attorney agrees, you need to issue a power of attorney with a notary.
Contents of the power of attorney
The power of attorney is drawn up in writing and must contain the following information:
- The nature, range and scope of powers of the attorney;
- Full name, passport details of the principal and representative;
- Duration of powers;
- Description of the subject of the transaction: address of the property, area, number of floors, number of rooms, etc.;
- Information about the donee;
- Possibility or impossibility of transfer of trust;
- Details of title documents for real estate;
- Signature of the principal;
- Signature and seal of a notary.
If the principal is a legal entity, the organization's seal will be required.
Sample of a one-time power of attorney for donating a share in an apartment: alt:
Validity
According to Art. 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate its validity period remains valid for 12 months from the date of signing. If the date is not specified, the document is considered void. The maximum period is 3 years.
If a notarized power of attorney is intended for transactions abroad and does not contain information about the validity period, it is valid until canceled by the principal.
Documentation
To issue a power of attorney you will need:
- Passports of the principal and attorney;
- Certificate of ownership or extract from the Unified State Register for housing;
- The principal's title documents for real estate: purchase and sale agreement, exchange, etc.
State duty
According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 200 rubles. If a notary's assistance is required in preparing a document, this is paid separately. On average, prices for additional services start from 2,000 rubles. and depend on the region.
Step 3: registration of deed of gift
When the power of attorney is issued, you need to sign the DD. An attorney does this on behalf of the principal (donor), and the donee signs independently.
Important! If the DD requires certification, it must be signed directly by a notary.
Documentation
The list of documents is almost the same as when drawing up a power of attorney:
- Passports of the parties;
- Power of attorney;
- Deed of gift (if drawn up independently and not from a notary);
- Real estate documents.
Step 4: registration of the transaction in Rosreestr
After signing the DD, the representative and the donee need to come to the MFC or Rosreestr to submit documents for re-registration of ownership. If a contract of promise of gift has been drawn up, the application is submitted only from the moment its execution begins - the date is indicated in the document.
For registration, the list presented above is provided, but in addition to it you will need a deed of gift.
Note! If the gift is not real estate, but, for example, a car, registration is not required. All you need to do is make changes to the title and register the vehicle with the new owner.
State duty
Individuals pay 2,000 rubles for re-registration of real estate, organizations – 22,000 rubles.
Appeal procedure
The deed of gift for real estate in which people were registered can be challenged. At the same time, three parties can challenge it at once.
The donor, in a situation where he believes that the donee is unlawfully evicting the registered ones, the donee, who was not warned in advance about the existence of such an encumbrance, as well as the 3 persons themselves in the form of the registered ones, who do not want to recognize the new owner, because he does not allow them to use the premises.
The case will be considered in court, and the court will make a decision in accordance with the law. But as a rule, very often the court takes the side of those registered , because these persons are not protected in any way, and are deprived of their right to reside in real estate.
Termination of power of attorney
According to Art. 188 of the Civil Code of the Russian Federation, a power of attorney is revoked for one of several reasons:
- The expiration date specified in the document occurs;
- Cancellation of a power of attorney by the principal;
- Refusal of the attorney's authority;
- Death of the principal or representative;
- Bankruptcy of an attorney or representative in an arbitration court if he loses the right to issue powers of attorney.
To terminate powers, a consent to refuse is drawn up. The parties have the right to draw it up at any time and contact a notary.
Risks of giving by proxy
There are several risk factors when making a gift by proxy. If a general agreement is drawn up, the attorney will be able to dispose of the principal’s property at his own discretion: not give it to the donee, but transfer everything to himself or sell it to other people. It’s better to make a one-time deal, for a specific transaction.
There is another point: if another person wants to challenge the DD, in court he can refer to the fact that the principal did not understand the consequences when drawing up the power of attorney. That is why it is recommended to have the document certified by a notary: this way the chances of the transaction being canceled will be reduced. Notaries always explain the rights, obligations and consequences for the parties. If it is determined that the owner is in poor condition and does not understand the consequences of the gift, the certification will be refused.
Rights and obligations of the parties under the contract of promise of donation in the future
The DOD is unilaterally binding, and the obligations arise on the donor. After a specific event or date specified in the contract, he undertakes to transfer the property in favor of the second party.
The recipient has more rights: he can refuse it at any time before the transfer of the gift. If the date has arrived, but the donor does not fulfill the terms of the ADD, the other party has the right to reclaim the property by agreeing with the owner or going to court.
Important! The DOD comes into force from the moment of signing, unless other conditions are specified. Execution is carried out from the date determined by the parties and indicated in the document.
When does the gift restriction apply and what does the donor need to do to complete the transaction correctly?
How to properly draw up a preliminary gift agreement and why is it needed?
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 .
Lawyer's answers to frequently asked questions
Is it possible to transfer a power of attorney for donation?
Yes, if this is provided for in the initial power of attorney from the donor or donee.
Is the presence of the donee required when drawing up a power of attorney?
No, his data is enough.
What is the validity period of a power of attorney?
The validity period cannot exceed the period specified in the first power of attorney.
A general power of attorney has been issued for the son to dispose of property. Can he use it to draw up a deed of gift for the apartment and give it to himself?
No you can not. The same person does not have the right to represent the interests of both parties.
Is it possible to call a notary to your home if a person is paralyzed?
It is possible, but transportation costs and services are paid separately from the state duty. The cost is set by regional notary chambers.
Apartment donation agreement
Kurgan
May 27, 2023
We are: Nikolaychik Valery Albertovich, residing at the address Kurgan region, Kurgan city, 8 microdistrict building 33 apartment 444, passport XXXX XXXXXXX issued by the department of the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan, acting on its own behalf and in its own interests, referred to as the Donor on the one hand , And Vaysel Ernest Petrovich, residing at the address Kurgan region, Kurgan city, 19 microdistrict building 18 apartment 109, passport XXXX XXXXXXX issued by the department of the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan, acting on his own behalf and in his own interests, referred to as the Donee on the other hand have entered into this agreement as follows:
The preamble includes:
- date and place of conclusion of the contract;
- name of the type of contract;
- names and roles of parties to the contract;
- passport details, place of residence, date of birth.
