Pitfalls and risks when buying an apartment under a gift agreement

If an apartment is transferred under a gift agreement , the parties receive both significant advantages and certain risks. What do experienced specialists recommend paying attention to in order to avoid negative consequences? And what pitfalls might unexpectedly arise in the future when the property has been donated?

Letter of the law

When drawing up a deed of gift, it is worth understanding the nuances of this legal document.

• Parties to the transaction. There are two of them - the giver and the recipient. The first, being the owner of the property, transfers it to another person - the donee, who accepts this property. The donor can be an individual, but it can also be a legal entity. The recipient may belong to both categories. The parties may be relatives or persons who are not related.
• The subject of the transaction is real estate: an apartment or a share in an apartment.
• Free basis for transfer of property. When donating real estate, it is implied that it is transferred to another person free of charge, that is, as a gift. In this situation, the donor does not receive any money or services in return for the donated property.

When donating an apartment is prohibited

According to Russian laws, it is not possible to draw up a gift document in all situations. The law prohibits the transfer of real estate free of charge in the following cases:

• If both parties are commercial enterprises;
• when transferring real estate from a patient to the attending physician or social worker;
• civil servants, when real estate is planned to be donated as part of the performance of their direct duties;
• student to teacher.

In all such situations, the law allows making gifts, but their price should not exceed three thousand rubles. The document is not signed.

Lack of spouse's consent

Another one of the most common cases in practice. According to family law, all property acquired by spouses during their marriage is community property. Giving without the consent of the spouse is possible, but only in cases where the donor is the sole owner of the transferred property, for example, received it as a gift or by inheritance. In this case, when making a transaction, it is not necessary to ask the spouse’s consent.

In all other cases this is impossible (Article 35 of the Family Code). Otherwise, if the spouse made a generous gesture and deliberately hid this fact from the spouse in front of the co-owner, she can go to court and challenge the deed of gift.

Types of deed of gift for an apartment

When a deed of gift for real estate is drawn up for a relative or other person, Russian legislation provides for two forms of deed of gift. They differ in what property is planned to be donated, as well as in the conditions that are stipulated in this document.

• A real agreement for donating an apartment or a share in it means that, according to this document, the second party (the recipient) receives specific property as a gift. The fact of concluding a transaction is associated with the moment at which the property passes to the new owner: in this case, this happens as soon as the document is registered with government authorities (registration chamber).
• Consensual differs in that it does not contain an indication of the transfer of real estate to another person: there is only a promise to do this if the potential recipient meets certain conditions. Therefore, such a document has a second name - a gift promise. The form must only be in writing, and the item that is promised as a gift must be specified very clearly, for example, housing or a share in it. Moreover, all the characteristics of this item must be described in great detail. Such a transaction must be concluded on a voluntary basis. And the recipient must confirm that he agrees to accept property or other thing as a gift in the future. The fact of concluding a transaction occurs when the recipient becomes the owner of the property transferred to him as a gift.

Advantages of registering a deed of gift for real estate

Registration of an apartment using a deed of gift, according to experienced lawyers, has both its advantages and disadvantages, which are more appropriately called risks.

The advantages of this form of real estate transfer transaction are directly related to who exactly are the parties to the agreement. As a rule, these are people connected by family ties. Donation allows them to quickly and without much hassle transfer an apartment or a share in it. In this situation, we can list several main advantages.

• Simplicity of design. A deed of gift for an entire apartment does not need to be notarized. For it to be valid, it is enough to draw up a document in writing, and then put signatures on it - the donor and the recipient. The main thing is that everything in the document is legally correct and there are no factual or legal errors. If a share in an apartment is given as a gift, the transaction must be certified by a notary.
• Such a document allows you to transfer real estate to individuals, including minors, as well as legal entities.
• Property rights when signing a deed of gift are considered more reliable. This means that the property that was gifted becomes the personal property of the recipient in any situation. That is, the rights of a spouse do not apply to him if the person is married at the time of concluding the gift agreement. This is the main difference between this type of transaction and a sale and purchase, when the spouse has rights to the purchased property and can demand his share in the event of a divorce.
• A deed of gift makes it possible to circumvent some of the restrictions of the law. The owner of a share in an apartment is given the right to transfer it as a gift to any person of his choice. If the share is intended to be sold, then, by law, the preemptive right to buy it belongs to those who own the remaining shares of this housing.
• It is difficult to challenge a deed of gift. The law allows you to challenge this document within a short period of time - only three years.
• There is no need to pay income tax on real estate received as a gift. This rule works when an apartment or a share in it is transferred to a close relative. In other situations, the recipient is obliged to pay personal income tax - 13% of the value of the donated property. This figure should not be underestimated, since tax officials have the right to check the compliance of the assessment with the real market value of housing, and then recalculate the tax amount.

Specific cases

Now let's devote this point to simple specifics. In general, the grounds look clear, but somewhat blurry.

It is in our interests to consider specific cases as a result of which the donation procedure simply will not take place :

1. The most common case is when the donee causes harm to the life and health of the donor . This also applies to the life and health of the donor’s family members.
2. The second basis is the creation by the donee of a threat to the loss of the donated item .

For example, a wild lifestyle and systematic binge drinking can cause damage or loss of a donated car.

3. If the donee dies before the donor , then the latter has the right to return the gift.
4. The contract is canceled if it is executed incorrectly .
5. Refusal occurs if the agreement is made on behalf of a minor child.
6. If the contract is drawn up on behalf of an incapacitated citizen.
7. If a gift exceeding three thousand rubles in value is made to an official .

Find out in what cases the donor has the right to revoke the donation agreement for an apartment from our article.

Disadvantages and risks of donation

However, donation also implies the presence of certain difficulties when concluding a transaction.

• Various conditions and encumbrances on real estate cannot be included in the contract. Such an agreement assumes that the property is transferred without any conditions to the recipient or without encumbrances. Otherwise, it is possible to qualify the gift agreement as a void transaction and its cancellation.
• Such an agreement can be challenged in court. This is quite difficult, but such an opportunity is given by law, especially in cases where the donor is an elderly person. In this situation, relatives can seek to have him declared incompetent at the time of signing the gift agreement, and thereby cancel the transaction. In the event that the donor dies before the period of three years allotted by law, challenging the document is permitted by law in the same manner - on the basis of the donor’s incapacity.
• The transaction of donating real estate is irrevocable. This means that the return of real estate or in it to the donor can be carried out in exceptional situations, for example, if he has nowhere to live, or if the recipient has committed criminal acts against the donor. The law does not provide for other opportunities to return property. Therefore, experienced lawyers recommend that owners sign agreements to donate an apartment only if they are completely confident that the recipient will not kick them out of it in the future.

All these risks should be taken into account not only by the donor and the recipient, but also by the person who decides to buy the donated housing in the future. It may face the fact that the donor’s relatives will want to challenge the gift agreement: this is fraught with the loss of the purchased property and the loss of the money paid for its purchase.

When is it profitable to transfer housing under a gift agreement?

When choosing a method for registering the transfer of an apartment or a share in it to another person, experts recommend relying on the following criteria when choosing a gift agreement. Signing such a document, as experienced lawyers believe, is profitable and convenient if

• the parties to the transaction are close relatives, and the transfer of housing for them is just a formality;
• the donor has another home where he can live by transferring his apartment or share in it to another person;
• the donor has full confidence that when he signs the donation agreement, he will still have the right to live in the donated living space.

When the owner of an apartment or a share in it has doubts that the recipient will justify his trust, lawyers recommend using other options for formalizing a real estate transaction, for example, a will or an exchange agreement . Under a will, real estate passes to the new owner only after the testator dies. And an exchange transaction implies that in exchange for the property received, the other party gives something to the owner of the property - other property or services.

The third option is to draw up a purchase and sale agreement, according to which the buyer pays the cost of the apartment or a share in it. A rental agreement can also be concluded : the property becomes the property of the new owner after he pays its cost in installments or performs any actions specified in the document, for example, caring for a sick or elderly owner of the apartment.

Submission of documents

What documents are required?

The documents folder should include:

• passport;
• statement of claim;
• receipt of payment of state duty;
• certificate of ownership;
• agreement;
• technical documentation for real estate;
• certificates from the BTI;
• documents confirming the unreasonableness of the transaction and the impossibility of carrying it out;
• the result of the examination, if any.

The documents are submitted to the court office, and only then fall into the hands of the judge himself, who gets acquainted with the essence of your requirements.

The state fee for filing a claim is three hundred rubles.

Find out on our website how to cancel an agreement to transfer a share of an apartment as a gift.

When can they refuse?

Refusal may occur if you do not have sufficient evidence to refute the transaction, or if you have not provided a complete package of documents.

Sample: Gift Agreement

Apartment donation agreement

Donation agreement for land and residential building

Conclusion

A donation agreement for an apartment or a share in it provides the parties with a number of significant advantages, but at the same time contains certain conditions and risks. According to lawyers, when choosing this form of formalizing the transfer of an apartment or a share in it, it is worth carefully assessing the relationship between the potential donor and the recipient. This form of formalizing relationships, experts believe, allows both parties to win only if they are relatives and there is a high level of trust between them.

You should also not neglect the notarization of the document: this will be an additional guarantee of confidence that the transaction will not bring negative consequences in the future.

Share on social media networks