Rules for drawing up a donation agreement for a house and land, as well as a sample document

Registration of a deed of gift is considered a legal action. The process of its implementation is regulated by Articles 572 and 582 of the Civil Code of the Russian Federation. The transaction is carried out on the basis of an agreement. It must comply with the requirements of tax, land and family legislation. If the donation agreement for a house and a plot of land is drawn up correctly, this will reduce the risk of dual interpretations and subsequent controversial situations. By following the rules and procedures for performing the procedure, a person will eliminate the risk of challenging it in court. We will talk further about the legal basis for carrying out the action, the specifics of filling out the agreement, as well as the list of required papers.

Legislation

The donation of a land plot with a residential building on it is subject to the general rules described in Articles 572–581 of the Civil Code of the Russian Federation. The key points of the invalidity of the procedure are explained by the Supreme Court Resolution No. 25 of June 23, 2015.

It is necessary to take into account other provisions and regulations, for example Federal Law No. 218 of July 13, 2015. Art. 209 of the Civil Code proclaims the owner’s right to dispose of real estate at his own discretion, and Art. 131 - the obligation to register this right in the federal register (USRN).

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Terms of gift

A deed of gift for land and a house involves the gratuitous and unconditional transfer of these real estate objects into the ownership of another person (Article 572 of the Civil Code of the Russian Federation), in this case:

• 
  The gift does not obligate the new owner to anything. The donor has no right to demand money, property, or services in return. In particular, the recipient is not responsible for land and other tax debts that the donor has accumulated.

• The document should not contain any reservations , such as a ban on sale. You cannot donate land on the condition that the new owner pays all the old owner’s land tax debts.

The agreement may involve a promise to transfer a gift in the future, but not after the death of the donor (this will be regarded as a will). It is permissible to include a condition for canceling the transaction if the donor survives the donee.

If the donor dies before the actual transfer of the land and house, this responsibility shifts to his heirs. If, on the contrary, the donee passes away earlier, his successors do not receive rights to the property. This order can be changed by agreement.

The gift of real estate, unlike a will, is a two-way transaction. You cannot draw up an agreement alone, without the new owner or his representative by proxy .
He must, by his signature, agree to accept the gift, the rights and obligations that flow from it. Rosreestr will also need his presence.

Basic terms of the land donation agreement in 2021 for the parties

According to the current legislation of the Russian Federation, for the transfer of a land plot as a gift, the participants in the transaction, also called parties, which include the donor and the donee:

1. must be capable and aware of the consequences of their decisions;
2. are obliged to express their voluntary desire to transfer and accept land without any payment (funds, services, etc.) and without the right to return the donated property;
3. must discuss all the points and conditions of the future transaction and check all the necessary documentation.

In addition, the party receiving the plot must have the right to accept this gift.

In 2021, Russian citizens still have the right to enter into a deed of gift for a land plot with both close relatives and strangers. At the same time, the procedure for concluding an agreement will be similar in both cases, excluding the fact that when concluding a transaction between persons who do not belong to the category of close relatives, the donee will be obliged to pay the appropriate gift tax , the amount of which today will be 13% of total value of the gift.

Also, it is worth taking a closer look at the impossibility of accepting a land plot using this method of alienation. The thing is that the opportunity to receive real estate as a gift may depend on the type of activity of the donee, the donor’s dependence on him, etc.

The list of those who cannot accept such property includes:

• civil servants;
• law enforcement officials;
• employees of nursing homes, medical and social institutions (for example, employees of social services, as well as guardianship and trusteeship employees), etc.

Content

The agreement is prepared in writing. After signing, it, along with other documents, is handed over to the Rosreestr office.

The deed of gift includes:

The procedure for registering a DD: nuances

In order to conduct a transaction without risk, registration takes place according to a clear and verified algorithm, which must be followed strictly by both parties:

1. verbally discuss all the nuances;
2. collect and check all documents necessary to complete the transaction;
3. draw up and sign a deed of gift;
4. have the DD certified by a notary;
5. prepare a registration package;
6. pay the state fee;
7. hand in papers;
8. receive confirmation of the change of ownership.

The donor and the recipient need to discuss possible conditions for the alienation of property at the stage of oral negotiations. There are cases when, due to the conditions set out, the contract could not be considered gratuitous, and therefore reflected a different type of transaction.

The collection of documents falls on the shoulders of the donor. He must ensure that all copies are brought into the required form and that the permits are up to date.

DD can be drawn up either independently or with the help of specialists. The main thing is that there are no errors in it. Otherwise, the registration procedure will be suspended until the DD is re-concluded.

Where to contact?

You can write the agreement yourself or use intermediaries for money.
Registration of the transfer of ownership takes place in Rosreestr.

Help with drawing up an agreement:

1. realtors;
2. lawyers;
3. notaries;
4. can be ordered at the MFC.

Reference! The service of drawing up a contract is paid.

The signed agreement is submitted to Rosreestr. As a rule, he accepts applications through the MFC by appointment. You can send copies of documents by registered certified mail with an inventory.

In some cases, the assistance of a notary is required:

• alienation of land and house occurs from a teenager from 14 to 18 years of age;
• the donor has limited legal capacity;
• at least one of the parties insists on notarization;
• the subject of the transaction is a share of real estate.

A notary establishment is not necessary if all owners of shares of land and houses donate them in one transaction (agreement).

In all other cases, contacting a notary is not necessary, but is not prohibited. He will explain every word and clause of the agreement to the parties and speed up the re-registration of rights. For a fee, he will draw up a deed of gift.

What does it mean to execute a contract by power of attorney?

Expert opinion

Sokolov Alexander Konstantinovich

Legal practitioner with 8 years of experience. Specializes in criminal law. Extensive experience in document examination.

This is when your authorized representative will take over the paperwork. This is what they do very often if they don’t want to or can’t waste time going through authorities and waiting in lines.

Usually they turn to legal companies offering to donate a plot of land on what is called a “turnkey” basis.

However, the registering authority is still wary of donating by power of attorney, especially by a general power of attorney, when the donor actually puts everything on the shoulders of a third party - this may raise doubts about the voluntary desire to donate real estate.

• How to properly formalize the donation of a plot of land with a house?
• How do you donate a share of a property?
• How to conclude a donation agreement for a garden plot?
• Is it possible to donate only land if there is a house on the plot?
• Is it allowed to register a deed of gift for a land share, an already donated plot and agricultural land?
• What is an act of acceptance and transfer of a memory and when is it needed?
• What is better and more profitable: sell or donate the memory?

Documents to be drawn up

To draw up an agreement you will need:

1. passports of each party;
2. from the representative - a passport and a notarized power of attorney, describing in detail the real estate, who is giving it and to whom;
3. an extract from the Unified State Register of Real Estate, other documents defining and confirming the right to an allotment and a house.

For subsequent re-registration of real estate you will additionally need:

1. applications from both parties: from the donor - for transfer of ownership, from the recipient - for registration;
2. 3 copies of the agreement signed by the parties (not copies);
3. notarial consent of the donor's spouse, if the land and house were received during marriage.

Legal documents include:

• decisions of the local administration or court,
• contracts of sale or gift,
• certificate of inheritance.

Legal documents are current extracts from the Unified State Register of Real Estate, certified by the seal of Rosreestr. Certificates issued before July 2021 have equal legal force: on state registration of property, the right to lifelong inheritable possession, etc.

Important! We need extracts from the Unified State Register of Real Estate for the house and land separately. Each will cost 2200/750 rubles. for the paper version (for legal entities/individuals), 600/300 for the electronic version.

Where and how to issue a deed of gift

If the question on the agenda is how to give friends or relatives a house with a plot . First of all, it is worth studying the Civil Code of the Russian Federation. It is he who regulates everything related to the procedure for transferring real estate.

In fact, you can draw up a donation agreement for a residential building yourself. However, in this case there is a high risk of factual, legal and grammatical errors appearing in the text. Which will become the basis for challenging it in the future. To exclude this possibility, you should contact experts in this field for drawing up a DD, these are:

• notary;
• lawyer;
• realtor

The listed specialists will take money for their services, but the DD will be drawn up in accordance with the letter of the law. In addition, the notary is authorized to independently transfer certified papers for registration of property rights. This will significantly save the recipient’s time.

Of the many options where you can make DD, most choose MFC. Here, department employees accept a package of documents in the presence of both interested parties. But to register, they will need an already signed DD. Moreover, the application for registration actions is drawn up on the spot.

What is more profitable to draw up: a will or a deed of gift?

Features of the procedure, how to register a deed of gift for a house and land

How is it possible to draw up a gift deed if the situation does not fall under the standard one ? As is known, up to 87% of donors face this problem. In such cases, they should take into account the characteristics of the transmission objects and act in accordance with established standards. The most common situations are discussed below.

Quite often, a building standing on leased land acts as a gift. This means that the house is transferred for free use without a land plot.

However, its owner can challenge the transaction at any time .

Therefore, before concluding a lease agreement, it is necessary to obtain the consent of the land owner to renew the lease agreement. If the donor has rights to the house and land and he hands over his property under a lease agreement, then the issue can be resolved in two ways:

1. oblige the new owner to comply with the conditions specified in the lease document;
2. terminate the employment agreement early.

The law allows the ownership of real estate by several persons at once, for example:

• jointly;
• by shares.

The first option requires the consent of all owners to alienate it, while the second option makes it possible to donate only their share. By the way, the use of maternity capital funds when purchasing real estate obliges parents to allocate shares to all their children. And regardless of their age. It is more convenient to do this through DD - parents allocate shares and give them to each of the children.

How to donate a piece of real estate and register a deed of gift to the state

In fact, this procedure is better carried out through a donation, having discussed the options for using the house. But if the donor insists on DD, then he should know that donating his property to specific officials is prohibited.

You can donate a country house if it and the land are registered as property. A building located on a plot owned by a cooperative can undoubtedly be transferred to another owner. In this case, consent .

The DD provides that rights pass from the donor to the recipient immediately after signing the papers. But legislative acts allow for a number of conditions for completing a transaction.

One of them may be the death of the donor , that is, after registration of the gift, he will live in his house on the same basis. And only after his death, the property will go to the person indicated in the deed of gift.

So, a DD acts as an alternative to a will and is therefore used between close relatives.

Do not forget that a land plot must be included in the donation agreement for a residential building. Otherwise, this transaction will be contrary to the law.

Form of gift agreement

The rules for drawing up a DD allow it to be drawn up in one of the following forms:

• firstly: oral;
• secondly: written.

If the object of gratuitous transfer is real estate, then only written agreement is allowed. Moreover, it must be confirmed by personal signatures of the interested parties.

Challenging the DD of a residential building and land plot: judicial practice

The fact of donation is subject to challenge in court. However, this is a rather complex process that requires an extensive evidence base. The grounds for cancellation of a DD can be divided into three groups:

• violations of the law when concluding a contract;
• putting pressure on the donor;
• lack of rights to the object of transfer.

The procedure can be started:

1. the donor himself ;
2. his relatives (in case of death);
3. confidant.

Judicial practice regarding such cases is ambiguous. Therefore, even if significant evidence is provided, the decision does not always satisfy the plaintiff.

Refusal from DD

The recipient has the right to refuse the gift. This can be done immediately, without putting your signature on the gift agreement form or by withdrawing the registration package from Rosreestr. To perform the last action, a statement from the recipient is required.

Useful materials: How to correctly draw up a deed of gift (donation agreement) for an apartment in 2021: documents, cost (Sample)

State registration

State registration of the deed of gift in Rosreestr was required until 03/01/2013.
In 2021, only the re-registration of ownership of the house and land takes place according to this gift agreement.

Re-registration completes the deal. The application to Rosreestr and the signing of the contract may be separated in time. The validity of the deed of gift will not be affected by this.

After re-registration, the new owner receives a current extract from the Unified State Register of Real Estate . It confirms his rights to the plot and house: from that moment on, he can dispose of them at his own discretion within the framework of the law, and is also obliged to pay land and property taxes.

Legislative acts regulating the procedure

Everything related to donation is described in Chapter 32 of the Civil Code of the Russian Federation. Even more precisely - Art. 572, 573, 574, 575, 576, 577 and 578 Civil Code. This issue is also addressed in the Land and Tax Codes of the Russian Federation.

Civil Code of the Russian Federation Article 573. Refusal of the donee to accept the gift

1. The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.
2. If the gift agreement is concluded in writing, the refusal of the gift must also be made in writing. If the gift agreement is registered (clause 3 of Article 574), refusal to accept the gift is also subject to state registration.
3. If the gift agreement was concluded in writing, the donor has the right to demand from the donee compensation for real damage caused by refusal to accept the gift.

Cost and terms

Re-registration of the right takes place within 7 working days. If the application is submitted to the MFC, the time increases by 2 working days. The reporting of these deadlines begins on the next working day after the receipt of all documents and the deed of gift.

Possible costs include:

• state duty for registering land and houses for the new owner;
• notarial services;
• remuneration for drawing up a deed of gift;
• hereinafter – income tax.

The state fee is paid by the new owner of the property separately for registration of the plot and house, in 2 receipts.

For the first, it is equal to 350 rubles, if the land is intended (clause 24, clause 1, article 333.33 of the Tax Code of the Russian Federation):

1. for personal farming;
2. gardening;
3. gardening;
4. individual housing or garage construction.

The same amount is the state duty on a house if there were no previously registered rights to it.

This is possible if it was built before 1998 and, accordingly, there are no records about it in Rosreestr. In all other cases, the amount increases to 2000 rubles. (Letter of the Ministry of Finance No. 03-05-06-03/16576 dated March 14, 2019).

Note ! The fee is paid at the bank or at the MFC. Be sure to get the details from the department or office where the application is being submitted. The original of the canceled receipt is not needed: Rosreestr will check the receipt of funds through its channels.

If, by decision of the parties or required by law, the contract is certified by a notary, he is paid a fee at the following rate:

The basis is the estimated or cadastral value of the land and house at the choice of the parties, usually the least.

Important! The notary himself can send the agreement to Rosreestr. This way, re-registration takes place much faster, in 3-4 business days. This service is free, but you will still have to pay a fee.

Additional costs may be incurred by the new owner . If he and the donor are relatives, income expressed in kind is not subject to personal income tax.

This circle includes spouses, parents (also adopted), children (also adopted), grandparents, grandchildren, brothers and sisters (also step-sisters). In another case, he is obliged to submit a 3-NDFL declaration by April 30 of the following year and pay tax.

Payment of gift tax

If transactions in 2021 are concluded between relatives, there will be a need to pay deductions to the state. Its size is 13%. If the person is not a tax resident, the rate increases to 30%. The need to pay a fee exists if the transaction is made between close relatives. The person is required to file a declaration. Representatives of the tax office will check the attached certificates. After this, a decision will be made to exempt the new owner of the premises from payment.

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If disputes and conflicts arise, you must go to court. If there is good cause, the donor has the right to file a claim to rescind the agreement. All facts will need to be documented. A person does not have the right to simply change his mind. The process becomes more complicated if the deed of gift has been notarized. Persons who are relatives of the donor also have a similar right.

The law allows you to challenge a deed of gift in the following situations:

• the new owner of the premises damages the property;
• after the conclusion of the transaction, the financial situation and health of the former owner of the property deteriorated;
• the recipient behaved unworthily towards family members or committed illegal actions.

Statistics show that court cases related to the consideration of gift deeds and disputes are the most complex. Therefore, you need to be careful and careful when drawing up a contract. It is important to make sure that this task is solved correctly when concluding a deal. It is recommended not to neglect the procedure of notarizing the agreement. This will reduce the risk of challenging the gift agreement.

Is it possible to challenge?

A contract can be declared invalid for several reasons, some of which are specific only to gift transactions.

The following are common:

• 
  Giving is against the law. This is recognized as a transaction, the purpose of which is to protect property from foreclosure or to deprive someone of the right to buy out a share before others. It is also a gift made under duress, as a result of deception, etc.

• The agreement was concluded contrary to prohibitions. Art. 575 of the Civil Code of the Russian Federation defines them: it is impossible to give on behalf of minors and incompetents; teachers, educators and doctors, their relatives on behalf of students and patients, their relatives; work officials; between commercial organizations (LLC, PJSC, individual entrepreneur, etc.).
• The agreement was concluded contrary to prohibitions. It is impossible to give property acquired during marriage, etc., on behalf of the husband without the consent of the wife and vice versa.
• The contract involves some kind of payment or reward for the land and house (money, property, right). Such sham transactions often disguise the purchase and sale.

In most cases, the registrar will simply refuse to finalize the deed of gift. But if it is still committed, it is challenged in court. To do this, the participant in the transaction or another person has from 1 to 3 years, depending on the basis (Article 181 of the Civil Code).

A person not participating in the transaction (for example, an heir) is obliged to justify how the donation violated his right, interest, or what negative consequences it entailed. And prove that he cannot defend himself in any other way other than judicial intervention.

If the court declares the transaction invalid, the recipient must return the property to the property of the previous owner. If the donation disguises the purchase and sale, it will be reclassified with all the ensuing consequences.

When it is impossible to donate a house and land

Article 575 of the Civil Code of the Russian Federation provides for a number of restrictions on participation in the donation procedure. Thus, an incapacitated or minor citizen cannot transfer property free of charge. Guardians and trustees do not have the right to perform actions for him. Persons who work in social institutions cannot obtain real estate. The rule applies if the role of the donee is a client of these organizations. A number of restrictions are also imposed on citizens occupying a certain position in government institutions.

The restrictions were adopted in order to prevent abuse. If an agreement is drawn up in such a situation, it will be considered illegal. Such a document has no legal force.

Possible difficulties

Ideally, both the plot and the house are accounted for and registered in the Unified State Register of Real Estate. The register contains information about objects since 1998. The right to real estate acquired earlier must be confirmed in Rosreestr . This can be done before registering the donation or at the same time with an additional statement.

Attention! It is impossible to give a plot and a house that are not officially registered with the owner, even if they are de facto his.

If there are no paper confirmations of ownership rights (in fact, the land is used illegally, and the house is a self-construction), they need to be legalized through a “dacha amnesty” or in court before the deed of gift is issued. But the absence of exact boundaries of the plot, which is registered in the cadastral register and recorded in the Unified State Register of Real Estate, will not become a basis for refusal of registration.