Power of attorney for donation of an apartment sample, form 2021 download

Last modified: March 2021

The owner of property has the right to dispose of it at his own discretion, including transferring it free of charge to another person. According to the Civil Code, the presence of both parties to the agreement when signing documents is mandatory. However, situations often arise when the donor cannot be present in person at the transaction. For example, he is in another city or is seriously ill. In this case, the law provides the opportunity to carry out the procedure using an apartment donation agreement by proxy. In this case, the third party receives from the donor the authority to carry out the necessary actions.

When may you need a power of attorney for donation?

Donation is a legal way of alienating property rights to a property through gratuitous transfer into possession and disposal to a third party. You can give it to a relative or stranger. But the owner must independently sign the agreement and appear at the authorized body to register the transaction. If action is not possible, a proxy should be appointed.

The need to appoint an attorney may arise if the owner:

Cannot sign a contract due to physical disabilities.
Cannot appear “for a deal” on his own due to physical characteristics.
He has health problems and is being treated in a hospital.
Is located outside the Russian Federation or lives in another region.
Doesn’t want to deal with “paperwork” on his own.
Acts as a legal entity. The founder or director cannot personally execute a trust document for the alienation of the property of a legal entity. A representative must be hired.

Is it possible to draw up a gift deed by power of attorney?

The owner of the property has the right to issue a power of attorney, which will transfer powers to:

The attorney's appeal to government authorities.
Submitting applications, collecting certificates and necessary statements.
Receipt of final documents and their signatures.

Having in hand a trust document for the transfer of powers, the attorney can enter into a gift agreement. But this should be done in the presence of a notary office employee. Which will check the legality of the transaction and certify the signatures of the parties. The notary will also act as a witness if legal disputes arise.

Representative rights

When the owner of a property draws up a trust document for the transfer of powers, he specifies the rights of the trustee. The attorney has rights within the framework of the powers that the principal has delegated to him. The representative exercises rights within the interests of the owner.

Donor's rights

The owner has the right to dispose of his property at his own discretion - he can donate, sell, bequeath. The donor is the owner of the property. He has the following rights:

Give an object to any person - both a relative and a stranger. It is possible to assign property rights in favor of an organization of any form of ownership legally established in the Russian Federation.
Refuse the donation if the alienation of the right to property will negatively affect his life and health.
Refuse the donation if the donee committed illegal actions against the owner or against the gift, which led to damage.
Revoke a gift if the recipient has shown a negligent attitude towards it. That is, if the actions of the new owner led to complete destruction or may lead to this, the former owner can deprive the item of donation in court.
Live in an apartment that has become the subject of a donation.
Demand in court compensation for moral and material damage if the actions of the donee cause damage to the subject of the transaction or the donor.
Cancel the transaction if the donor dies.

If the new owner committed the murder of the former owner, the heirs can sue and cancel the deal. You need to have a court verdict in your hands, which states that the guilt of the new owner of the gift item has been proven, and he has been sentenced to criminal punishment.

Rights of the donee

The donee also has his own rights. This:

Accept the gift of your own free will.
Give it up of your own free will.
Alien the right to the subject of the transaction in the manner prescribed by law.

How to register a deed of gift at the MFC

The authorized person fully plays the role of the owner of the property that is being donated, and therefore must be present at all stages of the transaction, including when registering documents with the MFC. In addition, this is a mandatory condition, since some procedures are not free, and according to the law, all payments must be made by the donor. Let's take a closer look at what awaits the parties in the process of transferring rights:

The donor pays a state fee, the amount of which is two thousand rubles;
A prerequisite for registering a transaction is the requirement that both parties appear at the registration office and sign the agreement. Both the owner of the property and his representative can come, depending on the circumstances and what specific powers were transferred to the trustee;
Both parties to the contract must bring a package of required documents. Their collection on the part of the donor is often carried out by a trusted person - a person who has the rights to carry out such procedures, and to whom the rights to representation in government bodies, housing and communal services, etc. are transferred. In addition to the documents, there must be a receipt confirming payment of the state duty;
After the documents have been checked and everything is in order, a special application for registration of the transaction is drawn up, examples of which can be found on the endless expanses of the Internet. But this is just extra work, since the parties will be provided with a form for its preparation and will be helped to fill it out correctly. Then the parties to the transaction only have to put their signatures on paper;
Next, the registrar issues a special receipt indicating when it will be possible to pick up the certificate of change of owner and transfer of property according to the deed of gift. In addition, this receipt indicates that the documents provided for registration have been accepted and will be used as confirmation of the legality of the transaction. Therefore, among the package of documents there must be a power of attorney from the owner of the property to his authorized representative;
The next step is important for the donee, because he is the one who should come to the MFC to receive a certificate of ownership of property. This written piece of paper transfers the recipient to the caste of happy owners of their own square meters.

But there are some nuances of the deal that can negate all the efforts of the parties. For example:

The transaction will be canceled if the owner does not have a title certificate for ownership of the property;
The donor must be legally capable at the time of concluding the transaction;
It is impossible to issue a deed of gift if minor children live with the donor in the apartment he wants to donate.

Features of donation by power of attorney

The rules for drawing up a trust document are prescribed in Art. 576 of the Civil Code of the Russian Federation. Regarding donation by power of attorney, it is worth referring to paragraph 5 of this article. This paragraph states that the trust document must contain information about the owner (both new and previous) of the subject of the transaction, as well as about the donee. If this information is not specified, the power of attorney will be considered invalid. It will be impossible to formalize a donation using it.

Such an agreement will not be accepted by Rosreestr. If it happens that the department “misses” the document for registration, the transaction can be challenged in court. The item of the gift will return to the previous owner or his heirs.

When making a gift under a trust document, you should adhere to other rules:

The attorney does not have the right to make transactions in relation to himself, and also cannot act as a donee.
If the transaction occurs on behalf of a legal entity, the power of attorney is issued by the director or other employee who is vested with powers by the constituent documents.

To complete a transaction, a notarized trust document is required. These include trust documents issued in places of deprivation of liberty, in military units, and in inpatient medical institutions. The heads of institutions act as notaries here.

The trust document for the execution of a deed of gift from a legal entity must contain not only the signature of the head, but also the seal of the organization.

To whom can a power of attorney be issued?

In the power of attorney for concluding a gift agreement, you can indicate not one, but several persons as a representative. In this case, each of the representatives will be vested with the powers specified in the power of attorney, unless a clause is made that the representatives act jointly. In this case, all representatives are obliged to perform any actions only together.

Note! If the power of attorney uses the conjunction “or” when listing the names of representatives, then each representative has the right to carry out actions independently. Such clarifications are contained in paragraph 4 of the letter of the Federal Notary Chamber dated February 10, 2012 No. 230/06-10.

A power of attorney to make a gift can only be issued to an adult capable person.

In accordance with clause 6.2 of the letter of the Federal Notary Chamber dated July 22, 2016 No. 2668/03-16-3, the following data of the representative are indicated in the power of attorney:

FULL NAME.;
Date and place of birth;
location;
identity document details.

The donor can also choose a legal entity as a representative. In this case, the full name of the organization, location address and OGRN are indicated.

Types of powers of attorney and their differences

A power of attorney is a document by which one person (he is also the owner of the subject of the transaction, he is also the donor) transfers to another person (representative) the authority to carry out transactions with the subject of the transaction. The trust document is drawn up in a notary office.

Legislation distinguishes 3 types of powers of attorney:

Special. Gives the right to perform similar actions on behalf of the owner within a specified time period.
One-time. Gives the right to perform a certain action or a series of actions on behalf of the owner on a specifically established date.
General. Gives the right to take actions to dispose of property within a specified period of time.

When it comes to drawing up a trust document for the alienation of property rights to the subject of a transaction through a gift, either a general power of attorney or a special one is drawn up. The one-time one is quite “narrow”.

One-time power of attorney

To understand what a one-time power of attorney is, it is necessary to give an example. The owner of the apartment, S., ordered an extract from the Unified State Register of Real Estate, which should be received on June 25. But on this day he will be on a business trip in another city. A trust document is drawn up to receive an extract from the Unified State Register on June 25 in the name of daughter S. On the appointed day, she goes to the Rosreestr office and picks up the extract, providing the employee with a one-time power of attorney.

That is, a trust document of a one-time format gives the right to execute powers for the owner of the property only once on a specified day.

Special power of attorney

To understand what a special power of attorney is, it is necessary to give an example. The owner of the apartment, M., lives in Novosibirsk, and there is an apartment in Moscow; her son lives in the same city. M. wants to give her son a Moscow apartment, but she cannot come to Moscow herself. She has a brother - a Muscovite. Having previously taken his passport details, M. goes to a notary in Novosibirsk and draws up a special power of attorney.

Now her brother in Moscow, on her behalf, can draw up a gift agreement in the name of M.’s son, sign the necessary documents, and make a deal.

General power of attorney

Such a power of attorney is also called a general power of attorney. That is, the owner transfers to the trustee an unlimited range of powers in relation to the subject of the gift. For example, the owner of a private house, P., issued a general power of attorney to a neighbor to dispose of a private house, and he himself went for permanent residence in Germany. The neighbor rented out the house for several years, regularly sent money to the owner in Germany, paid taxes and utility bills on behalf of the owner, resolved issues in SNT, and took part in voting at general meetings of owners.

A few years later, the owner decided to give the house to his daughter, and since the neighbor has a general power of attorney in his hands, and the validity period of the document has not yet expired, there is no need to draw up additional paperwork. The neighbor, on behalf of the owner, drew up a deed of gift, signed it, formalized and registered the transaction with Rosreestr.

Is it possible to draw up a deed of gift for an apartment using a power of attorney?

It is possible, the attorney must have the authority to perform such actions in relation to real estate. That is, the owner must independently vest the trustee with the authority to dispose of the subject of the transaction. To alienate the property right of one person in favor of a third party by drawing up a trust document, you must contact a notary.

He will correctly draw up the document, write down the terms of authority being transferred, explain to the parties the consequences of the actions taken, and certify the signatures. It recommends specifying a time period during which the trust document will be valid. If one is not specified, then the legitimacy of the document will be within a calendar year from the date of execution.

Even if the validity period is indicated, the power of attorney will lose legal force at the moment when the transaction for which it was drawn up is completed and registered with Rosreestr.

Important! A power of attorney to donate an apartment can only be issued at a notary office. You must have special knowledge. The trust document is drawn up on a special form, which is subject to strict reporting. It must also be registered in a unified register.

Actions of the authorized person after receiving the power of attorney

After the trustee transfers a document giving the right to carry out transactions with property, the trustee performs the following procedure:

Agrees with the donee on the place and date of execution of the deed of gift.
When visiting a notary, a gift agreement is drawn up. It is not subject to state registration.
The notary issues the deed of gift.
The recipient goes to the MFC or Rosreestr, provides an application, deed of gift and other documents.
After reviewing the materials, the gifted person is given an extract from the Unified State Register or a certificate of ownership.

The cost of certifying gift agreements depends on the price of housing: up to 10,000,000 rubles. – 3,000 rub. plus 0.2%, over RUB 10,000,000. – 23,000 rub. and 0.1% of the amount exceeding RUB 10,000,000. The maximum amount of state duty, regardless of the value of the property, is RUB 50,000.

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Kireev Maxim

Lawyer

After registration of the deed of gift, you will also have to pay for the procedure for registering the property as a property. It is also necessary to transfer personal income tax in the amount of 13% of the market value of the gift, if there are no grounds for tax exemption.

What are the differences between donating an apartment with and without a power of attorney?

The main difference is that a transaction under a power of attorney is carried out not by the owner, but by the person to whom the owner has entrusted these powers. When making a gift transaction through a power of attorney, the documents are signed by an attorney. He also orders the necessary certificates, extracts, and collects the necessary documentation. He fully represents the interests of the owner within the framework of the transaction.

Often, a trust document for a gift transaction is drawn up in the name of a realtor, so that the owner himself does not have to deal with “paperwork.” The realtor draws up the documents, signs them, and concludes the deal. The main condition is that the authority to take actions in the interests of the owner must be clearly stated in the “body” of the trust document.

Drawing up a gift agreement by power of attorney step-by-step instructions

To donate property to a third person by issuing a power of attorney to a representative, you need to take several steps:

The donor and recipient agree on the terms of the transaction. According to current legislation, donation is an unconditional transaction, that is, the owner cannot impose conditions for receiving the gift (for example, making repairs in an apartment and then receiving it as a gift). But it is possible to agree on the date of transfer of the gift. Verbal agreement between the parties is sufficient.
Find a person who will represent the interests of the donor, draw up an agreement, sign it, collect certificates, enter into a deal, and receive final documents. It is necessary to write out a trust document for this person, in which the powers should be specified.
Execution of a power of attorney at a notary office. The attorney may not be present; his passport details are sufficient. The notary will issue a document of trust without the presence of a trustee.
Transfer of power of attorney to an attorney.

Further, the donation transaction proceeds without the participation of the owner. The attorney himself collects documents, certificates and extracts, and signs the deed of gift. Based on the results of the transaction, the new owner will receive an extract from the Unified State Register of Real Estate (if the object of the donation is a real estate property).

Important! The donee cannot be the trustee of the principal. Transactions by interested parties are prohibited by law.

When a power of attorney expires

The trust document for the transfer of powers to formalize the deed of gift loses legal force when the term expires. It is recommended to indicate the eligibility period in the “body” of the document. If not specified, it will be considered valid for a calendar year after the date of registration. The last indicator must be indicated. Without it, the power of attorney will be considered invalid.

Also, the trust document will lose its validity when the transaction is registered with Rosreestr. That is, the trustee will fulfill the delegated powers.

In what cases is a deed of gift considered invalid?

The trust document for the execution of a deed of gift will be invalidated in the following cases:

The owner, who is also the donor, canceled the deal and secured the condition with documents.
The authorized representative independently renounced the delegated powers. The action is secured by a notary.
The validity period of the document specified in the “body” has expired, the transaction was not completed.
The “body” of the power of attorney does not indicate the date of preparation.
The transaction is registered in Rosreestr, that is, the transferred powers have been fulfilled, even if the legitimacy period has not expired.
The donor died before the transaction was completed, was declared missing by the court, was declared by the court to be completely incompetent or partially incompetent.
The attorney died before registering the transaction, was declared missing by the court, had his legal capacity limited by the court, or was declared completely incompetent.
Minor children or children officially adopted or under guardianship are permanently registered in the real estate that is the object of the gift.

Period of validity and cases for its termination

Based on Article 186 of the Civil Code of the Russian Federation, indicating the validity period of the power of attorney is a mandatory condition. Otherwise, such a document will be considered invalid and cannot be used to complete a transaction.

Paragraph 1 of Article 186 of the Civil Code of the Russian Federation states that the validity period of the power of attorney is established directly in the document itself. However, if this information is missing, then the document will be valid for 1 year from the date of its execution.

A power of attorney issued for making transactions abroad and not containing an expiration date is valid until canceled by the issuing person.

Based on Article 188 of the Civil Code of the Russian Federation, the agreement is terminated if one of the following situations occurs:

Expiration of the document.
Cancellation of a power of attorney by one of the parties to the relationship.
Termination of the legal entity in whose name or on whose behalf the document was issued.
Death of the principal or trustee or recognition of his incompetence.

What documents are needed to conduct a gift transaction?

To register a transaction for the transfer of real estate as a gift, you must provide the following documents:

Owner's passport. Since an attorney acts on his behalf, he needs his passport and a power of attorney, which contains the passport details of the owner and the authorized representative.
Passport of the donee.
An extract from the Unified State Register of Real Estate, in which the owner of the property is registered. If the property right of ownership was registered before July 1, 2016, then you need to provide a “blue” certificate of ownership.
The document on the basis of which property rights arose - a contract of sale, gift, inheritance.
An extract from the house register, which indicates persons who have permanent registration at the address of the subject of the gift.
A technical passport, which indicates that the housing has not been subject to unauthorized redevelopment.

The recipient may additionally request an extract from the personal account, which will indicate the presence or absence of debts on utility bills. To register a transaction, you must pay a state fee. The law does not stipulate which party is obliged to do this. But, by default, the one who accepts the object of the gift pays. The fee is 200 rubles. You can use the object after signing the deed of gift, and not after registering the transaction in Rosreestr.

If the subject of the gift is not a real estate object, but other property, then documents confirming property rights are needed. So, if you give a car as a gift, you need to provide:

STS and PTS.
The document on the basis of which the right arose.
Additionally, you can ask for a certificate confirming the absence of debts on fines and transport taxes.

In all cases, a deed of gift is attached to the set of documents. It is recommended to draw up it in a notary office. This minimizes the risk of errors and legal conflicts.

The concept of a transaction and the deed of gift in 2021

Based on the description presented in paragraph 1 of Article 572, the concept of a gift agreement is understood as an oral or written agreement, according to which one party, called the donor, voluntarily and free of charge transfers in favor of the other party, the donee, certain property benefits, rights, or releases the receiving party from the property obligations imposed on it.

The gratuitous and irrevocable nature of the transaction, at the same time, presupposes the complete absence of any counter-property representations for the received gift on the part of the donee. The presence of such a condition automatically entails the nullity of the contract and the invalidity of the transaction (according to paragraph 2 of Article 170 of the Civil Code of the Russian Federation).

Not all citizens can still participate as parties to a deed of gift in 2021. For example, based on the content of paragraph 2 of paragraph 575 of the article, , as well as legal representatives of these persons, cannot act as a donor in transactions with the value of an object exceeding 3,000 Russian rubles

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At the same time, today it is prohibited to accept expensive gifts:

workers of social institutions;
municipal employees;
employees of social organizations;
civil servants;
medical workers.

In addition to these persons, donation is prohibited in cases of an attempt to conclude this transaction between commercial organizations (Clause 4, Article 575 of the Civil Code of the Russian Federation).

It is worth noting that, although the gift agreement is bilateral in nature, it still has unilateral obligations (the obligation of the donor to transfer the gift to the donee). In this case, as an exception, deeds of gift may act, including formal conditions for the donee (for example, while preserving the donor’s right to live in the apartment donated to him until death). However, such special conditions should not create property obligations.

Also, in Article 572 of the Civil Code of the Russian Federation, the legislator allows the conclusion of a gift agreement not only of a real gift agreement, which is executed at the time of conclusion of the transaction, but also of a consensual one, also called a gift promise agreement, according to which the donation occurs within the period specified in the agreement, in the future.

It is also perhaps worth noting the fact that the deed of gift cannot contain continuing or lasting rights and obligations that apply after the actual execution of the contract.

About the form of the gift agreement

According to the generally accepted rule, which is established by Article 574 of the Civil Code of the Russian Federation, most of the donation transactions concluded can be formalized by an oral agreement. At the same time, according to paragraphs 2 and 3 of Article 574 of the Civil Code, there are cases when such transactions must be formalized exclusively in writing. Let's look at them.

Donation of real estate . The mandatory written form of such deeds of gift is due to the legal consequences that arise when concluding such transactions, namely, the need to re-register property rights for the new owner (according to paragraph 1 of Article 131 of the Civil Code of the Russian Federation). State registration is carried out after the parties provide the necessary documents to Rosreestr employees.
In a donation transaction, a legal entity acts as a donor , and the total market value of the object of donation is more than 3,000 Russian rubles (according to paragraph 2 of Article 574). The described rule, by the way, acts as an exception to another article (Article 161 of the Civil Code of the Russian Federation), according to which every transaction concluded by a legal entity must be formalized in writing!
The parties draw up a consensual gift agreement . In addition to the written form, the promise of donation, according to paragraph 2 of Article 574 of the Civil Code, requires a description of the object of the gift, as well as an expression of the will of the donor to freely, irrevocably and voluntarily transfer this object within a specified period or to fulfill another obligation established in the contents of the contract (2 paragraph 572 of Article Civil Code of the Russian Federation).

Positive and negative aspects of a gift transaction by power of attorney

The main positive aspect of giving by proxy is that the owner does not deal with paperwork, all actions are taken over by the attorney. But there are many risks that can arise. In order not to lose real estate or other gifted items, risks must be minimized.

To reduce or completely prevent the risk of losing the gift item, it is recommended:

Issue a one-time or special power of attorney, but not a general power of attorney. General gives an expanded range of powers to dispose of property. If the attorney turns out to be an unscrupulous person, he may donate the property to a relative, colleague or other person. That is, to provide for your interests and future benefits.
The risk of challenging a gift transaction or invalidating it is high if the transaction is carried out by proxy. A third party who wishes to challenge the deed of gift and obtain ownership of the object of the gift may claim in court that the donor did not fully understand his actions when he signed the document. Therefore, it is recommended to contact a notary office - this way the risk is significantly reduced. The notary explains to each party the consequences of drawing up a trust document. After making sure that both parties understand the explanations, the power of attorney is certified. It is difficult to challenge a notarial transaction.

In what cases can registration be refused?

You may be denied registration of such an agreement for a number of reasons. Typically, you need to plan for such situations in advance so that you do not have problems in the future.

First of all, you need to make sure that the gift agreement is drawn up correctly.
If you compiled it with a notary, then you will not have any problems. However, if you compiled it yourself, you may have made a mistake somewhere or some inconsistency with the points. Refusal may result from incorrect execution of the package of documents or lack of essential papers.
The next reason for refusal is the expiration of your powers under the power of attorney agreement.
This means that if the deadline has already passed, you cannot participate in the transaction as a trustee. The same applies to the situation when the power of attorney does not provide for the possibility of carrying out a gift transaction.

Consider all these nuances in advance so as not to encounter dire consequences that will force you to start the procedure from the very beginning.