What is a gift deed and when might it be needed?

What is donation

According to the law of the Civil Code of the Russian Federation, Article 572, the following is considered a donation.

Free transfer of property

If you give something to someone out of your heart without asking for anything in return, that is a gift. And it doesn’t matter whether it’s a mug with a funny inscription or a cottage on the shore of a lake. The only difference is how it is formatted. In most cases, it is enough to verbally announce the intention and hand over the gift itself, or documents for it, or its symbolic designation, such as keys. There are two exceptions when it is necessary to conclude a written gift agreement:

1. When transferring real estate. The transfer of ownership from one owner to another must be registered with Rosreestr, for which papers will be needed.
2. If a legal entity gives something more expensive than 3 thousand rubles.

There is no legal requirement to issue a deed of gift for a car. But you will have to do this too. The papers will be useful for re-registration of transport to the recipient at the traffic police. Although, in general, it is always good to somehow record the fact of donation when we are talking about something valuable. Evidence may be required if any disputes arise. For example, a grandmother gave her granddaughter earrings with diamonds, and then forgot about it and accused her of theft. Evidence will help restore an honest name.

In addition, the gift must be made disinterestedly, otherwise the transaction will be considered void. So, sometimes when selling a share in an apartment (for example, a room in a communal apartment), the seller does not want to collect refusals from the remaining owners and instead of a purchase and sale agreement offers a gift agreement. And buyers simply give him money against a receipt. Interested parties like neighbors can easily challenge the deal.

Promise of a gift in the future

Let's say a grandmother is going to sign over her apartment to her grandson when he turns 18. Words cease to be empty chatter and become promises that must be fulfilled by law. But only if everything was formalized in writing: for promises, it is necessary to sign a gift agreement.

In addition, there are several conditions:

• You need to give something specific. You cannot write “everything that is mine is now yours”; it will not have legal force.
• A gift cannot be promised to pass to the recipient upon the death of the current owner. For such cases, there is a will. Therefore, the agreement will be considered unconcluded.
• You cannot promise a gift in exchange for the performance of any services or obligations. He must be selfless. If a grandmother wants her grandson to look after her, and only then will he get the property, this is not a gift.

If the donor does not live to see the day when he promised to give the gift, his heirs will have to do this. When the recipient dies first, the gift does not need to be transferred to anyone else—unless otherwise specified in the contract.

Exemption from property obligations

If you forgive a debt or undertake an obligation to pay it for someone to a third party, this is formalized by a gift agreement, and it must be in writing. For example, if you decide to repay your retired mother’s loan, this is your case. And, again, your impulse must be selfless.

Responsibility of the parties

Having received a DD item (real estate, valuable thing) as a gift, the donor undertakes to treat it with care. It is important to take into account the provisions of Art. 580 of the Civil Code of the Russian Federation, according to which the donee has the right to demand from the donor compensation for damage caused as a result of donating a gift with defects.

This is possible if the defects were invisible at the time of the transaction, but the donor knew about them and did not inform the other party.

The donee is also responsible for:

• losses caused by refusal to accept a gift;
• poor handling of the gift (having discovered this, the donor has the right to cancel the transaction).

When concluding a donation agreement, the recipient is responsible for using the gift for its intended purpose in order to avoid cancellation of the transaction.

Briefly: the object of the donation is a gift, and the donor undertakes to notify the recipient of his shortcomings, and the other party undertakes to handle him with care.

Who can be the donor

There are no restrictions for gifts cheaper than 3 thousand rubles. As for more expensive gifts, the donor is not subject to many requirements of the Civil Code of the Russian Federation Article 575. It should be:

• As an owner of property, you cannot give someone else’s property or something that you own more than once.
• Mentally healthy and fully aware of your actions at the time of signing the contract.

Let's talk about the last point in more detail. If a person was under the influence of alcohol, drugs, or gave something under pressure, this does not count. Those who are declared incompetent by the court cannot present anything either. Moreover, this cannot be done on their behalf.

Children under 14 years of age cannot act as donors. You cannot give gifts on their behalf. That is, if a child inherited a share in an apartment from his grandmother, the parents cannot give it to someone. From the age of 14, a child can give expensive gifts with the written consent of his mother, father or legal guardian. A person receives the full package of donor rights from the age of 18, or from 16 if he is emancipated by law.

Gifts that are transferred from one company to another are also prohibited. From a legal entity to an individual and vice versa - as much as you like.

Arbitrage practice

Most often, the courts refuse to satisfy the claims, but there are also cases in which the plaintiffs managed to get the donation canceled and the contract declared invalid:

• Decision No. 2-6177/2014 2-6177/2014~M-5866/2014 M-5866/2014 dated September 19, 2014 in case No. 2-6177/2014;
• Decision No. M-1752/2013 2-70/14 2-1548/2013 2-70/2014(2-1548/2013;)~M-1752/2013 2-70/2014 dated January 20, 2014;
• Decision No. 2-679/13 2-679/2013 2-679/2013~M-736/2013 M-736/2013 dated July 16, 2013

As a result of the proceedings, the contracts were declared invalid by the courts. Registration entries in the Unified State Register were cancelled, and property rights were returned to the donors.

How to draw up a gift agreement

There are no strict rules for paperwork. But here's what should be in the document.

Parties' details

It is necessary to indicate the last name, first name, patronymic of the donor and recipient, dates of birth, passport details and registration address.

I, citizen Bilbo Baggins, born September 22, 2890, place of birth in the Shire, Middle-earth, registered at Bag End, Hobbiton, Shire, on the one hand,

and citizen Frodo Baggins, born September 22, 2968, place of birth in the Shire, Middle-earth, registered at Bag End, Hobbiton, Shire, on the other hand,

being of sound mind and sound memory, acting voluntarily, we have entered into this agreement as follows.

Gift information

What is it, with what characteristics, to whom and on the basis of what documents does it belong. So, if an apartment is donated, then this will be the address, square footage, cadastral number, number and date of registration of ownership, as well as the reason for its occurrence - for example, a purchase and sale agreement.

I, citizen Bilbo Baggins, have given to my nephew Frodo Baggins a smial with countless rooms, located at Bag End, Hobbiton, Shire. Cadastral number of the object: 11:111111:111. The said smial belongs to Bilbo Baggins on the basis of certificate of inheritance 00AA1111111.

Recipient's consent to accept the gift

It's a two-way deal, so it's worth pointing that out.

I, Frodo Baggins, accept the indicated smial from Bilbo Baggins.

The rest of the contract content is standard, so just check the templates.

• Real estate donation agreement template →
• Car donation agreement template →
• Template for a future donation promise agreement →

If the agreement does not require a visit to a notary, it comes into force after signing. If required, then after its assurance.

Lawyer's answers to frequently asked questions

Is it possible to draw up a contract of promise to donate an apartment with a mortgage?

Any transactions with mortgaged property before the debt is repaid without the consent of the lender are prohibited. Try to get permission from the bank. An alternative option is to issue a deed of gift, the execution of which will begin after the mortgage debt is closed.

I took out a loan secured by real estate, now I want to give it to my son. Can I draw up a contract of promise to donate a collateralized apartment?

No, alienation of mortgaged housing without the consent of the bank is prohibited. He can challenge the deal in court, and the judge will most likely take his side.

Is it necessary to draw up a deed of transfer and acceptance when donating real estate?

Not necessary, but if necessary, you can draw it up, indicating all the details: what is the condition of the housing, are there any defects, etc.

Is it possible to draw up a contract of promise of gift to a legal entity?

Yes, with the exception of donations between commercial organizations - this is prohibited by clause 4, clause 1 of Art. 575 of the Civil Code of the Russian Federation.

Is it possible to give money for a wedding under a promise agreement, and how to do it?

The contract is drawn up in writing, the amount is indicated, because a document without a description of the item (gift) is invalid. Draw up a deed of gift, give the second copy to the recipient and wait until the wedding, and then hand over the bills.

What conditions are best not to be included in the deed of gift?

• In no case should a condition be stipulated in the contract under which the donor will have the right to live in the donated apartment until his death.

The registration authority will not “pass” such an agreement, since such a right for one of the parties may be provided for in the annuity agreement, but not in the deed of gift.

This also includes the obligation of the donee to financially support the donor for life, provide lifelong care, etc. All these are components of an annuity agreement and life support with dependents.

• You should not indicate in the deed of gift the condition that the property passes to the donee immediately after the death of the donor.

In this case, the deed of gift will be invalid, since the rules regarding inheritance issues will apply to the transferred object.

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Who can't give an apartment to?

There are several situations that prohibit issuing a deed of gift for an apartment:

1. The donor may not be a person serving as an official at the local or federal level in connection with his position.
2. The donor cannot be a minor or incapacitated person. Even if such a donor was able to draw up a deed of gift, it can easily be declared invalid.
3. If the donor of an apartment is the owner of a commercial organization and tries to donate property to the same owner of another commercial organization, then such manipulations are prohibited.
4. If the donor is a client of medical clinics, educational institutions and other social institutions, then issuing a gift deed for his living space is prohibited by law.

Sometimes, after registering a deed of gift for an apartment, relations with relatives may change, not for the better. Donating real estate is a very serious step for the donor. In this case, a will for inheriting an apartment protects the owner of the home more. Before you issue a deed of gift, you need to think several times. After all, it is almost impossible to cancel this step after the deed of gift is registered in Rosreestr, and the recipient is in no danger, even if he decides to drive his donor out onto the street.

Transaction made under duress

If you have evidence that the deed of gift was written under duress, the transaction will be considered invalid. This also includes cases of misconception/deception. Citizens are not always able to assess the legal consequences of their actions. Such people, unfortunately, are very manipulable, and are easily deceived or misled by more clever citizens. However, if this fact is proven in court, the deed of gift will be cancelled.

Unfortunately, judicial practice is full of such sad examples. Let's take this case, for example. The citizen was serving a sentence in prison; he still had a long time to serve, but he was unbearably eager to be released. The cellmates, taking advantage of their unstable emotional state, offered a “lucrative” deal, promising to help them get released as soon as possible in exchange for an apartment. But this kind of deal will be considered invalid, since the cellmates are not able to influence the fate of the convict. Moreover, they voluntarily forced the citizen to make a deal.

When does the deed of gift for an apartment come into force?

Unlike entry into inheritance rights, which is possible six months after the death of a relative, a deed of gift is valid 18 days after its execution and registration. This procedure greatly simplifies property relations between close relatives. There are several advantages of a deed of gift for an apartment over the inheritance procedure:

Expert commentary

Shadrin Alexey

Lawyer

There is one more feature of registering a deed of gift for an apartment - when receiving the property, a non-close relative or stranger, not related to the donor, will have to pay a tax in the amount of 13% of the cadastral value of the apartment.

Donation and purchase and sale

Despite the significant differences between the legal nature of the gift agreement (Article 572 of the Civil Code) and the purchase and sale agreement (Article 454 of the Civil Code), they also have some similarities . They both provide for the alienation of property rights to another subject of law, the possibility of alienation of any good, the circulation of which is not prohibited, written, oral, as well as real and consensual forms of agreement are possible.

Attention

The most basic difference between a donation and a purchase and sale, which determines the main advantage for the donee and some disadvantages for the donor, is the gratuitousness of the donation , which excludes the possibility of a counter-representation on the part of the donee (clause 1 of Article 572 of the Civil Code). When buying and selling, such a counter-representation is initially provided for by the essence of the legal relationship between the parties (clause 1 of Article 454 of the Civil Code).

Both agreements provide for the receipt of income by one of the parties: in a gift - the donee, in a sale and purchase - the seller, which obliges them to pay 13% personal income tax . However, if there are close family ties when making a gift, the recipient is exempt (clause 18.1 of Article 217 of the Tax Code of the Russian Federation), which does not apply to sellers.

When making a purchase and sale, the parties will have much more legal reasons for challenging and terminating the concluded contract than when making a gift, which allows termination only in a few cases (Articles 573 and 578 of the Civil Code of the Russian Federation).

When buying and selling property by a married person, it gives rise to a regime of joint ownership of it by both spouses, regardless of who and to whom it was registered (Article 34 of the RF IC), which is excluded when it is donated (Article 36 of the RF IC RF).