How to correctly draw up a deed of gift for a land plot?

Category updated: July 19, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. In this section, I will talk about such a transaction as the donation of a land plot, how it is formalized, what the conditions, features and taxes are. Here I am talking about a transaction with a “bare” plot without buildings or with buildings, but which are not registered as property. If you need to find out about donating a plot along with a house, I have a separate article on this topic.

The donor is the one who donates the land. The donee is the one who accepts the gift (Clause 1, Article 572 of the Civil Code of the Russian Federation).

Features of a deed of gift for a land plot

According to Art. 572 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is a document confirming the intentions of one party (the donor) to transfer a gift free of charge to the other (the donee).

In this case, we are talking about a plot of land, when donating which you need to take into account several rules:

1. The donor does not have the right to make counterclaims to the donee: to transfer money, things, etc. Such transactions are recognized as invalid, and the rules of purchase and sale or exchange are applied to them.
2. You can give an object that belongs to the donor as a property.
3. The recipient has the right to refuse the gift, and the DD will be considered terminated. Moreover, if the refusal causes damage to the donor, the donee undertakes to fully compensate it (Article 573 of the Civil Code of the Russian Federation). For a deed of gift drawn up in writing, the refusal is written in a similar form.
4. You can refuse a gift after state registration of the gift agreement, but the refusal of the donee is also subject to state registration.
5. Real estate is given only under a written agreement, because it must subsequently be registered with Rosreestr (Article 574 of the Civil Code of the Russian Federation). Land plots are classified as real estate (Article 130 of the Civil Code of the Russian Federation).

Briefly: a deed of gift for land is drawn up in writing and is subject to state registration in Rosreestr. If desired, the recipient has the right to refuse the transaction. The property located on it is donated along with the plot.

What is given along with the plot?

Alienation of different real estate objects separately is unacceptable, because this will make it impossible to use the gift.

For example, you cannot donate only the land on which the house is located: the recipient will not be able to use the site for its intended purpose.

When deciding to donate a plot of land, it is important to consider that the objects located on it are also donated along with it:

• residential and country houses;
• outbuildings;
• baths, cellars.

Note! If the objects are not legalized, it is better to do this before signing the DD, or to warn the donee about this, because after the transaction, he will have to register illegal real estate.

Arbitrage practice

Challenging a deed of gift is a painstaking and complex task that requires great effort and good legal preparation.

But it is possible to cancel the deal, and this is confirmed by the following court decisions:

• Decision No. 2-347/2018 2-347/2018~M-239/2018 M-239/2018 dated July 23, 2021 in case No. 2-347/2018;
• Decision No. 2-12400/2015 2-12400/2015~M-11885/2015 M-11885/2015 dated October 27, 2015 in case No. 2-12400/2015;
• Decision No. 2-3263/2012 2-46/2013 2-46/2013(2-3263/2012;) 2-46/2013 dated February 28, 2013

Cases challenging gift agreements are considered within the framework of litigation proceedings. If the decision is positive, the donated property is returned to the plaintiff; in case of loss, the defendant is paid equivalent compensation.

To whom can a plot of land be donated?

A plot of land is the property of a citizen, and he has the right to dispose of it at his own discretion.

An exception is the acquisition of an object during marriage: in this case, it is recognized as the common property of the spouses, and for alienation on the initiative of one of them, the notarized consent of the other will be required (Article 35 of the RF IC).

You can donate a plot of land to anyone:

• to kid;
• close or distant relative;
• spouse;
• to a stranger.

Let us consider the features of the transaction in each case in detail.

For a minor child

You have the right to give your child a plot in full or a share, having received consent to the transaction from your spouse, if the “gift” was purchased during marriage.

By law, any transactions with minor children require the permission of their parents, but you yourself will act as a legal representative, and written consent is reflected in the deed of gift.

A child under 14 years of age does not sign the DD; those over 14 years old sign and come to the MFC to register the transaction together with the donor parent.

Children by shares

You can donate a plot of land to minors or adult children, dividing it into shares:

for example, ½ each. The size of the shares is determined by the donor independently, because this is a voluntary transaction.

Sample agreement for donation of a share of land:

Wife from husband and vice versa

Spouses have the right to give each other real estate, and in this case, notarial consent to the transaction will not be required.

Legal advice: real estate received by a spouse as a result of a gift or inheritance is not subject to division during a divorce. Think carefully before entering into a contract. If you decide to divide the property, the donated land with all the objects will not appear in the division.

Parents

You have the right to give your parents or one of them land with buildings. If mother and father are the donees, shares are indicated for each by DD.

Important! We must not forget about the rule for spouses: if the plot was purchased during marriage, consent from the donor’s spouse will be required.

Sample agreement for donation of land between close relatives:

To third parties

Third parties mean different people: aunts, uncles, girlfriends, friends, comrades. You can give land to any person, the main thing is that the transaction is voluntary.

It is important to consider that if the donee is declared incompetent, the donation is carried out with the participation of a legal representative. He himself does not have the right to sign - all transactions are carried out for him by a guardian with the consent of the guardianship authorities.

Briefly: donation is allowed to any person; it is a voluntary transaction. Alienation of property in favor of a child is carried out with the consent of the parents.

How to properly draw up a preliminary gift agreement and why is it needed?

How to properly draw up a real estate donation agreement and what is needed for this?

Cost and terms

If the donation agreement for a land plot with a house was notarized, then registration will take no more than three working days. If the application for registration was submitted by a notary in electronic format, then the processing time will be even shorter - only one day.

The general registration period is 10 days (if the parties completed everything independently). The only thing you will have to pay for in this case is the state duty, the amount of which is 2000 rubles.

Giving a garden plot as a gift is easy, except that having a garden house on it requires a lot of expense in collecting all the documents. We hope that this article was useful and you will be able to issue a deed of gift without any problems.

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Requirements for donors

Unlike recipients, who are subject to minimum requirements, the list of criteria for donors is stricter:

1. Age of majority. Transactions on behalf of children under 18 years of age are prohibited by law.
2. Legal capacity.
3. Ownership of real estate. You cannot give land that belongs to another person - this will require his consent and a notarized power of attorney.

If you meet the criteria, there should be no problems with the transaction. But it is important to take into account situations when registration of a DD is impossible.

When is donation prohibited?

According to Art. 575 of the Civil Code of the Russian Federation, donation is prohibited in several cases:

1. On behalf of a child under 18 years of age.
2. You cannot donate property to an employee of a medical, educational or social organization in which the donor receives services or is supported.
3. It is prohibited to transfer property as a gift to employees of state and municipal bodies if the transaction is related to the performance of their official duties.
4. Donations between organizations engaged in commercial activities are not permitted.

This prohibition does not apply to gifts worth up to 3,000 rubles. You can donate property in connection with protocol official events, but in this case it is recognized as federal or municipal property, and is transferred to the recipient to the government agency according to the relevant act.

You can donate real estate on behalf of an enterprise, but only to an individual. For example, such deals are relevant when employers want to reward employees for decent work and great contribution to development.

What documents are needed to donate a dacha?

To carry out all the above-described stages of drawing up a contract for the donation of a dacha from one person to another, the parties (for the most part, the donor of the property) must have these 5 types of documents on hand:

1. original passports of the parties involved in the registration of the deed of gift;
2. papers confirming state registration of the land plot and buildings on it;
3. all title documents for the land plot and buildings on it, confirming the donor’s right to dispose of this object;
4. technical and cadastral passports and plans (for the site and buildings);
5. other available land and legal documentation.

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Donation agreement with a notary - cost in 2021

And, in order to register the ownership of the new owner of the property, you need to add to the existing papers:

• original deed of gift;
• transfer deed (if it was concluded);
• a receipt confirming successful payment of the state duty established by current legislation.

Is it necessary to carry out surveying before donation?

Land surveying is not necessary, but it may be necessary in controversial situations: if the actual area differs from the area according to documents, the absence of previously defined boundaries, the allocation of an allotment from collective property, an increase in area.
If land surveying was previously carried out during registration, it is not necessary to do it when donating, even if a share is being donated.

Note! If the land is in common ownership of several citizens, and one decides to donate his part to another person, first you need to allocate a share and register the changes in Rosreestr.

Do I need to have the deed of gift certified by a notary?

The deed of gift is certified if a share in the right of common ownership is given. In other cases, notarization is not necessary.

Consent to the transaction from the remaining owners is not required - the donor has the right to dispose of the property at his own discretion, with the exception of purchase and sale transactions where other owners have a preemptive right to purchase a share.

Legal advice: you should contact a notary. He will check the correctness of the documents and certify the contract. In the future, it will be problematic to challenge it, because The notary’s signature indicates that the parties at the time of signing were legally capable, were in a sober state and were aware of the legal consequences of the transaction.

Cost of notary services

For certification of deeds of gift, notaries charge 0.5% of the transaction price - the cadastral value of a plot of land. You can find it out on the official website of Rosreestr.

If notarized consent of the spouse is required, the notary is paid 500 rubles.

Donating a summer cottage to a relative

The owner can donate not only the entire dacha plot, but also a share in the right to it to any person (regardless of whether there is a relationship between them). At the same time, donation, as a rule, takes place between relatives . Such alienation is no different from the transfer of a summer cottage as a gift to an outsider, with the exception of taxation - the fact of receiving a gift of real estate from a relative is the basis for exempting the donee from paying income tax .

Under the donation agreement for a plot in a dacha cooperative, the transfer of such a gift in the future may be stipulated. It should be borne in mind that in the event of the death of one of the parties before the transaction is executed, different consequences :

• if the donee does not live to see the transfer of the gift, the right to demand its transfer does not pass to the heirs of the donee (except for those cases where the contract provides otherwise);
• if the donor does not live to see the transfer of the gift, the donee has the right to demand its transfer from the donor's heirs, who are his legal successors (except for those cases when the contract provides otherwise).

How to issue a deed of gift: step-by-step instructions

The procedure for registering a deed of gift consists of several stages. Let's look at everything in detail.

Step 1: drawing up a contract

You can draw up a deed of gift yourself or by contacting a lawyer. This will cost approximately 2,000-3,000 rubles. Notaries also provide technical services for drafting documents, but their prices are more serious - from 5,000 rubles.

Sample contract

The deed of gift must contain information about:

• Full name, passport data, dates of birth of the parties;
• address, area, cadastral number of the plot, land category: individual housing construction, private subsidiary plots, etc.;
• the grounds on which the land belongs to the donor: sales contract, inheritance, donation, etc. Document details will be needed;
• the date from which the contract is considered valid;
• rights, obligations, responsibilities of the parties, conditions for canceling the transaction.

The date of registration, signatures of the donee and the donor must be included.

Sample land donation agreement (completed):

Step 2: visit a notary

A visit to the notary is required if a share is being given. In other situations, visiting a notary is voluntary.

An exception is the preparation of a DD for a plot purchased during marriage: it is necessary to obtain the consent of the spouse, even if the agreement is not subject to notarization.

Note! If you come to a notary, he will hand over the documents for registration to Rosreestr, and then you will not have to submit them yourself. The service is provided free of charge.

Spousal Consent Sample

Consent includes several points:

• FULL NAME. the donor and his spouse;
• date of land acquisition, address and area;
• the very wording of consent;
• signature of the citizen and date of registration.

Sample of a spouse's consent to donate a plot of land:

Documentation

The notary needs to submit a number of documents:

Step 3: registration of the agreement with the MFC

When the documents are collected and the DD is signed, you need to submit everything to the MFC at the location of the land plot. The donor and the recipient come to the institution. If one of them cannot appear, a notarized power of attorney is issued. The donee has no right to represent the interests of the donor.

At the time of submitting the documents, an application for registration of the DD and re-registration of ownership is filled out; it will be given to you by an MFC employee.

Documents and state duty

The MFC or Rosreestr provides the same as a notary, but in addition you will need a deed of gift. A receipt for payment of the state duty is not required - all payments are checked by employees of the institutions themselves.

But it may be needed if the specialist does not see the payment in the general database. It's better to take it with you.

The state duty can be paid online by generating a receipt on the Rosreestr website. There are also details for payment through terminals and bank branches. The fee for registering the right to a plot of land is 350 rubles. It is paid by the donee.

Step 4: obtaining an extract from the Unified State Register of Real Estate

Re-registration of land ownership takes 10 working days. After the specified period, you need to come to the MFC and pick up an extract from the Unified State Register, where you will be indicated as the new owner.

State registration procedure

After collecting all the documents and signing the agreement, you can submit them to Rosreestr, or to any of the multifunctional centers that also handle the preparation of such documents.

State procedure registration consists of the following steps:

1. All collected documents and the agreement are submitted to the specified authorities.
2. Authorized persons verify the authenticity of all documents and determine whether the transaction is legal.
3. If the transaction is recognized as impossible to carry out, grounds are formed for refusing to carry out the procedure in state registration.
4. If no problems were identified, then an entry is made in the register indicating that ownership has transferred to the recipient of the plot.
5. Title documents are drawn up and signed, which are then handed over to the recipient.

Gift taxes

Receipt of property is recognized as profit and is subject to taxation. You need to pay 13% personal income tax on the cost of the land.

Close relatives of the donor do not pay the tax:

• parents;
• children;
• Grandmothers and grandfathers;
• full and half brothers and sisters;
• spouses.

The rest will have to pay. The amount is calculated based on the cost specified in the contract. The 3-NDFL declaration is submitted to the Federal Tax Service at the location of the land until April 30, the tax itself is paid until July 15.

Taxes when donating a summer cottage

The general rule in force in the Russian Federation is this: any income of citizens is subject to income tax, the amount of which is currently 13%. Thus, the receipt of real estate in the form of a dacha plot is recognized as the income of an individual and is subject to tax: the recipient of the gift must transfer 13% of the market value of the dacha plot (and when transferring a dacha house as a gift, then also of its value) to the state income.

Important

If, under a gift agreement, real estate is alienated to a person who is not a relative of the donor, it is advisable to conduct an assessment of such property. This will greatly facilitate the completion of all registration procedures and will contribute to correct taxation.

From the specified rule in clause 18.1 of Art. 217 of the Tax Code of the Russian Federation, the legislator provides for an important exception related to the subject composition of the gift relationship: income tax when receiving real estate as a gift is not paid by those persons who received a gift from their close relative. Consequently, if the donee and the donor in a gift are spouses, children and parents, grandparents and grandchildren, sisters and brothers (also half-siblings), adoptive parents and adopted children, then the income they receive as part of the gift is not subject to taxation .

Cancellation of a gift agreement

The transaction can be canceled on the basis of Art. 578 of the Civil Code of the Russian Federation on one of the grounds:

1. At the initiative of the donor: the donee committed an attempt on life and health, caused bodily harm or killed a close relative of the donor; mistreatment of the gift by the recipient, if this entails its irretrievable loss.
2. Drawing up DD under psychological or physical pressure.
3. At the request of the donee: the presence of circumstances entailing significant financial expenses. For example, if the donor did not warn about legal problems with the land, but this became clear to the recipient.
4. At the initiative of the heirs, if the donee killed the donor intentionally.
5. At the request of creditors, if the donor is in the process of bankruptcy, and the land was donated six months before filing an application with the arbitration court.

The donation is canceled by agreement of the parties or in court. If the court satisfies the requirements, the donee undertakes to return the plot within the established time frame, and, if necessary, compensate the donor for damages.

Arbitrage practice

Courts usually satisfy donors' requests to invalidate a DD if they provide sufficient evidence and arguments.

Let's look at some real examples:

Nuances

The following situations may lead to recognition of the invalidity of a transaction:

1. Identification of facts of exerting pressure on the donor in order to force the transaction.
2. Attempt on the donor's life.
3. Incapacity of the donor, poor understanding of the consequences of his actions. Relatives who have claims to the disputed property may try to prove these facts in court. But they will have to provide significant evidence of incapacity: certificates, photos, videos.
4. Errors and lack of specificity in the contract. For example, the inability to identify a gift based on the characteristics specified in the document.
5. Bankruptcy of a legal entity within six months after the donation. In this case, creditors can go to court.

There are situations when the recipient dies as soon as he takes possession. In order for the donor to receive the donated property back, it is necessary to provide for such a situation and mention in the contract the possibility of return in exceptional cases.