Donation agreement to husband/wife for an apartment, house, car or land

As you know, the main characteristic of a gift agreement is its gratuitousness , i.e. absence of any property representation on the part accepting the gift (clause 1 of Article 572 of the Civil Code). It is precisely because of this property of donation that it is most often performed in favor of close relatives, children, and no less often in favor of spouses. is incorrect from a legal point of view - according to Art. Art. , SK, they are just family members .

Let us note that the gift agreement concluded between husband and wife retains all the basic properties characteristic of a typical civil transaction. However, at the same time, it has some important distinctive features - a special procedure for the emergence of property rights, taxation regime, registration procedure, the presence of mandatory conciliation procedures, etc.

It should be understood that by way of gift, any property benefits (things, rights of claim or actions to fulfill the property obligations of a spouse) can be transferred free of charge between spouses - the law does not contain restrictions regarding specific items of gift. Much more important is the form of ownership in which the good to be donated is located.

Important

The right of ownership of a gift arises from the donee spouse according to the general rule - upon actual receipt of the gift or after state registration , if necessary (Article 223 of the Civil Code). The agreement itself does not require state registration or mandatory notarization.

a marriage contract deserves special attention . Its presence and the allocation of personal property to each of the spouses allows one to bypass the regime for the emergence of common joint property (Article 34 of the Family Code), which will solve the typical problems of spouses in the event of a deed of gift being concluded between them.

Property relations between spouses

According to family law, spouses are considered close relatives. However, such closeness is due to a legal fact - the presence of a marriage, after the termination of which the relationship is lost.

In turn, property owned by a married couple has a special status. Thus, according to Article 38 of the Family Code, all objects of property rights accumulated by spouses over the years of their marriage are recognized as their common property. In relation to such property, spouses have equal rights.

What does this give them?

Thus, being spouses, persons acquire the following special conditions for the disposal of property:

• they cannot dispose of joint property without each other's consent;
• become close relatives, which means they can transfer property to each other in a special manner;
• they are equal owners of all property belonging to them;
• may have shares in their joint property if such was established by their agreement or court decision.

As for the relations arising from the conclusion of a deed of gift, the general procedure applies for spouses, with the exception of the specifics established for such a subject composition of the deed of gift as close relatives.

According to tax legislation, an apartment donation agreement is recognized as a receipt of profit by one of the parties, who must pay tax on this profit. But close relatives in this sense have some privileges and are exempt from tax. That is, if a deed of gift is drawn up between spouses, then they may not pay tax.

What laws govern it?

The deed of gift for housing between married people is reflected in the civil code of our country. Why in this source? The Civil Code is devoted to a thorough consideration of civil legal relations.

Also, this regulatory act completely regulates the conduct of all transactions possible on the territory of our country. This means that there was a place in the code for donation.

What is a gift transaction? This procedure involves the participation of two parties. That is, the donor , the person who alienates property from his property and the donee , who accepts this property into his ownership.

This procedure is quite simple to perform, so it is extremely popular . It is carried out by the alienation of real estate from one property and the corresponding transfer to another free of charge.

The Civil Code devotes Chapter 32 to donation, starting with Article 572.

If you want to delve deeper into the nuances of the transaction, you need to read this article.

Despite the fact that we are considering the issue of donation between spouses, a separate article is not devoted to .

And all because the donation of housing is carried out on general terms, so writing a separate rule is not required.

Characteristics of joint and shared ownership

The law does not establish direct restrictions on the conclusion of an apartment donation agreement between spouses. However, due to the nature of joint ownership of property by several persons, including spouses, a deed of gift simply loses its meaning.

Thus, civil legislation distinguishes the following forms of ownership of property by several persons:

• joint - when the shares of each of the owners are not specifically designated, and each of them has equal rights to the entire volume of property;
• shared - when the share of each person is allocated into a separate part, even if not in kind, and each of them has sole rights to the corresponding part.

As already mentioned, family law classifies the property of spouses as joint property. That is, they can equally dispose of it with each other’s consent. But in this sense, a deed of gift between spouses loses its legal meaning, since even after the donation, the spouse remains an equal owner of the same property along with the donee spouse.

It’s another matter when the share of each spouse is allocated separately. Thus, family law allows spouses to be able to regulate their property relations at any time, including determining their shares by drawing up an agreement or by going to court if there are insurmountable differences.

After this, each share determined by agreement or court will be the personal property of each spouse. The transfer by gift of any property will be considered as a transfer of personal property from one person to another.

And when the property is joint, then when donating it to anyone, including the second spouse, his consent is required. That is, he must agree to the gift to himself. The conflict of norms makes such agreements meaningless and in practice they have long been dismissed as unnecessary forms of alienation.

In addition, Article 413 of the Civil Code establishes that a person cannot donate property to himself; this is prohibited. And in the case of a gift between spouses, the donor, for example, the husband, is also the donee, since after the gift the ownership of half of the property will remain with him.

And also, for example, if the donee is a spouse, then she must give her consent to the transaction. That is, she is also a giver, and she also gives to herself.

When is gifting between husband and wife possible?

So, can a husband give his wife an apartment purchased during marriage? As has already been indicated, in order for the gift of real estate between spouses to have meaning and legal significance, before making a gift, it is necessary that the part of the husband or wife be specifically separated as part of the common property.

You can do this in the following ways:

1. Enter into a prenuptial agreement that will divide their property acquired during the marriage between them and will apply to the future. That is, even if the property is currently divided, after the donation the conflict will not be overcome, and the donated property will again become their joint property. So it is necessary to regulate property relations in the future.
2. If a dispute arises between spouses regarding the ownership of this or that property, it is necessary to go to court. But it is worth considering that in most cases the courts divide the property of the spouses equally.
3. Allocate the relevant property to the sole ownership of the spouse. This is not a gift, but the result will be the same, that is, the property will become the sole property of the respective spouse.

You can allocate both separate property and the entire share of the spouse in the jointly acquired property. In this case, the participation of the second spouse is mandatory. The allocation of a share is formalized by a simple certificate from a notary confirming the ownership of the spouse.

If the spouses allocate the entire share of one of them, then a certificate from a notary must also be obtained for the share of the second spouse. And when allocating specific property, it is enough to issue a certificate for it.

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Even in a court decision, the document of title is the certificate. Only if it is available, spouses can give or sell property without each other’s consent.

Required documents

To register a transaction involving the gratuitous transfer of real estate, the spouse needs to collect the following documents:

• passports of the parties;
• marriage certificate;
• extract from the house register (valid for 30 days), contains a list of registered persons;
• title papers for real estate;
• technical documents (cadastral passport, extract from the Unified State Register or BTI, technical passport - you can do it all at once);
• written permission from other co-owners for donation (if any).

Before submitting, you should check the relevance of the certificates and update them if necessary. The donation of an apartment can be accompanied by a specialist - a notary, who has the right to request other documents, expanding the standard list.

Features of drawing up a deed of gift between husband and wife

A deed of gift is a type of transaction according to which property is alienated from the possession of one person and transferred into the possession of another person. The only feature of such a deal is that it is absolutely free. A deed of gift for an apartment between spouses with a condition is not recognized as a gift as such and can be challenged in court.

When concluding a deed of gift between spouses, you should pay attention to the following points:

• For deeds of gift, the law requires a written form;
• notarization is not considered mandatory, but is recognized as an additional guarantor of the legality of the transaction;
• in the transaction it is necessary to accurately indicate the personal data of the spouses according to their passport;
• it is necessary to individually determine the object of ownership that they bought together or separately, indicate its characteristics, location, cost, and so on;
• the presence or absence of encumbrances, rights and claims on the object of donation from third parties;
• spouses have the right to delay the entry into force of the deed of gift, for example, until the moment of division of property or divorce;
• the rights of the parties to withdraw from the contract must be specified in the agreement itself;
• since the deed of gift in marriage is concluded between spouses recognized as closest relatives, it is necessary to indicate the details of the corresponding certificate confirming the marriage;
• the deed of gift may indicate the moment at which the actual transfer of property will take place.

After the agreement is drawn up, the parties must transfer the property to each other in fact. To certify the fact of transfer to the wife from the husband, a corresponding act is drawn up.

The date indicated in the deed is the moment of execution of the contract, when the donor transfers the property and the donee accepts it. After this, the transaction is considered completed.

However, for the donee this is not the end of the bureaucratic legwork. If real estate or a car is given as a gift, they must be registered with the relevant authorities within the prescribed time frame.

The car must be registered with the State Traffic Inspectorate within 10 days from the date specified in the acceptance certificate. The apartment must be registered with Rosreestr.

Contract form

According to the general rule established by paragraph 1 of Art. 574 of the Civil Code of the Russian Federation, any real gift agreement can be concluded orally , without any formalization, which, however, is entirely permissible by decision of the parties to the transaction. At the same time, the legislator has also identified some exceptions to this rule, requiring compliance with mandatory written form. Thus, a written denunciation is required if the parties conclude:

• Contract of promise of gift . A consensual gift agreement, in addition to the mandatory written disclosure, requires mandatory specification of the gift and a clear expression of the donor’s intention to transfer this gift in the future. Let us note that before the fulfillment of the obligation under the contract, each of the parties has the right to refuse to participate in it (Articles 573, 577 of the Civil Code). Failure to comply with the written form of the contract entails its nullity (clause 2 of Article 574 of the Civil Code).
• Agreement for the gift of a gift worth more than 3 thousand rubles, where the donor is a legal entity. face . The definition of the specified cost limit, obliging the written confirmation of the donation, is dictated by Art. 161 of the Civil Code, which requires such exposure from all contracts with legal entities. persons. At the same time, there is an exception to this rule, which allows an oral agreement if the price of the gift is less than 3 thousand . Failure to comply with the written form of the contract entails its nullity (clause 2 of Article 574 of the Civil Code)
• Real estate donation agreement . The need for written denunciation is dictated by the obligation of the party to state registration of real estate (Article 131 of the Civil Code), the procedure of which requires the submission of a specific list of documents, which includes an agreement - the basis for the transfer of rights (Clause 5 of Article 18 of the Federal Law No. 122 of July 21, 1997)
• Notarized gift agreement . It should be understood that notarization of an oral agreement is impossible. Let us remind you that certification of the gift agreement by a notary is not mandatory , but is carried out only at the request of the parties to the transaction.

Registration of donated property

Today, the legislation provides for the accounting of only a few types of property allowed for free civil circulation.

This:

• real estate objects: buildings, land plots, except those that have a special purpose;
• motor vehicles: cars, motorcycles and so on, except for military and special purposes;
• air and water transport;

Registration of ownership of real estate is carried out in Rosreestr. It does not matter which territorial unit you contact.

So, to register your rights in relation to this or that property, you need to submit the following documents:

• application in the approved form;
• deed of gift;
• technical and cadastral documentation;
• passport of the new owner;
• receipt of payment of the duty.

Within ten days after submitting the documents, the owner will be issued a corresponding certificate.

Motor vehicles are subject to registration at the State Traffic Inspectorate offices. In this case, you need to contact the department at the place of registration of the owner.

To register you need to submit:

• application form for car registration;
• deed of gift;
• passport;
• PTS (vehicle passport);
• certificate of vehicle compliance with technical safety regulations.

In this case, the duty is paid on the spot. It is not necessary to present a receipt. The procedure takes no more than one hour, after which a registration certificate will be issued.

As for water and air transport, registration is carried out by the Ministry of Transport in accordance with a special procedure.

The legislative framework

The donation of joint property to a legal spouse is regulated by the provisions of the Civil Code (Articles 572-573). Controversial issues are reflected in the Family Code, including guidance on how to prove what is personal property and what is joint property.

The procedure for registering donated housing is described in Federal Law-218 (07/13/2015), including the need to enter data into Rosreestr. It is the USRN extract that will confirm the identity of the new owner. There you can also check whether the object in question has any encumbrances.

Features of donating real estate

Basically, real estate objects in free circulation on the territory of the Russian Federation, which can be gifted between spouses, are represented by:

• apartments as part of multi-apartment housing;
• land plots;
• private houses.

Industrial facilities and non-residential objects very rarely become objects of gift between husband and wife. So you should consider the above categories.

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You can donate an apartment in the same way as any other property.

However, you need to take into account certain features when donating an apartment to your spouse:

• address;
• type of structure;
• the number of floors and the floor on which the apartment is located;
• the area of ​​residential and non-residential premises in the apartment;
• specifications;
• lifetime;
• cost according to the cadastre.

In turn, the land plot has the following features that must be taken into account when donating:

• type of land allotment: only land for individual housing construction (individual housing construction) and land for agriculture can be donated;
• land area;
• boundary plan;
• documents for buildings, if any;
• specific cost of a unit of measurement of an allotment in a given area.

The most difficult in terms of legal assessment is a private house. Thus, civil legislation considers a private house and the plot under it as a single whole.

Thus, it is impossible not to donate a plot of land by donating a house on it. Accordingly, the deed of gift must individually characterize both the house itself and the plot.

If there is no consent of the spouse

Family law establishes that spouses manage their common property jointly. Thus, one spouse cannot sell or donate property without the consent of the other.

Donation without the consent of the spouse is allowed only in the following cases:

• when the property in question is the sole property of the husband or wife;
• when the law does not provide the consent of the other spouse as a prerequisite.

Thus, the law determines that when alienating real estate or a vehicle, as well as any other object subject to state registration, the consent of the husband or wife is required. Otherwise, the contract will be declared illegal and cancelled.

In turn, in order to cancel such a transaction, the dissenting spouse must go to court.

The transaction will be declared invalid and canceled if the following circumstances are present:

• the transaction was concluded regarding property included in the common ownership of the spouses;
• the spouse did not give his consent to enter into such a transaction;
• the third party to whom the property was transferred knew about the lack of consent.

In turn, it is necessary to pay attention to the nature of the spouse’s consent. So, if a spouse gives consent to a gift, but in fact a sale occurs, then such consent is not recognized as the basis for the legality of the transaction.

If the written consent of the spouse indicates that he agrees to the alienation, then any transaction can be concluded.

Circumstances under which they may refuse

Refusal to register a deed of gift may occur due to the following shortcomings or errors in the execution of the procedure:

• Incorrectly formed or incomplete list of documents. The absence of some paper may well serve as grounds for refusal.
• Incorrectly drawn up contract.
• The deed of gift drawn up and the process of its registration violates the rights of third parties.
• Lack of paper confirming payment of state duty.
• There is an outstanding or current outstanding debt on the property that must be paid off. Without doing this, the transaction will not be considered by the Rosreestr authorities.

What is not included in joint property?

As already mentioned, spouses are free to dispose of their sole property.

So, if an object is recognized as the property of a spouse, then he can:

• alienate property without the consent of the other spouse;
• donate this property to your wife.

But what about personal property? Family law does not precisely define this issue. Only joint property includes all the property that was purchased during the marriage. If the apartment was purchased after registration, then it is joint.

Thus, all the property that they bought before marriage remains their personal property during marriage.

In addition, family law defines some exceptions when property acquired during marriage is not common:

• copyright;
• personally addressed gifts;
• personal items (clothing, etc.);
• inherited property.

Spouses can freely give each other their personal property. In this case, no conflicts arise, and such transactions cannot be cancelled. But many people ask the question: “Can I, having purchased an apartment as a gift, share it with my spouse?”

Of course, in this case, a gift between spouses will be very useful.

When can a deed of gift be cancelled?

It is worth noting that the spouse, as a close relative, can not only manage joint property, but also have some influence over the disposal of the personal property of his husband or wife.

The law contains exceptional circumstances in which a deed of gift may be revoked by the donor.

Thus, among them the most controversial is the right of close relatives to challenge such a transaction due to the following circumstances:

• if the deed of gift was concluded when the donor was not himself and did not understand the meaning of his actions;
• if the donor is an alcohol or drug addict;
• if the donation is clearly fictitious in nature, pursuing other goals (for example, to hide property from alimony obligations).

Spouses have a wide range of property rights in relation to each other. For this reason, experts recommend regulating your property relations by agreement. This will avoid many difficulties, litigation and unnecessary scandals in the family.

But, despite the convenience of concluding such an agreement, many married couples consider such regulation of their relationships unacceptable. For this reason, family disputes are by far the most common occurrence in Russian judicial practice.