Is giving by proxy possible and what are the risks for the donor? Deal Features

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 might a power of attorney for donation be needed?

A power of attorney is a document according to which one citizen (principal) authorizes a second citizen (attorney) to represent interests before a third party.

It may also be needed when donating in several situations:

• The donor cannot be present at the transaction in person: he is sick, is abroad, etc.;
• The donor is a legal entity, and the founder or director cannot formalize the deed of gift personally. The document appoints a legal representative.

The form of the power of attorney depends on the type of transaction. According to Art. 574 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is drawn up in writing if real estate is being donated, the donor is an organization and the value of the gift exceeds 3,000 rubles, or the citizen promises to give a gift in the future. In other cases, an oral transfer of the gift is sufficient.

Important! If the DD requires notarization, then the power of attorney must also be certified by a notary. A power of attorney agreement without a certificate is signed only in a notary office.

Legal Advice: Even if the law does not require a notarial form, it is better to contact a notary. The presence of his signature will significantly reduce the likelihood of challenging the transaction and protect the interests of both parties - the donor and the donee.

Requirements for alienated property

A power of attorney alone is not enough to alienate part of an apartment. The designated property must be in shared ownership of the co-owners. This regime is usually established within the framework of inheritance - under an agreement on the division of inheritance. Otherwise, difficulties may arise. For example, if the property is jointly owned by several persons, then their consent will be required on the eve of registration of the deed of gift.

Approval of the transaction is not required if the transaction is between spouses. That is, when there are only two co-owners and one of them alienates his part of the property to the other.

In other cases, the donor or his representative will have to negotiate with the co-owners. The problem can be solved by drawing up a separate agreement on the allocation of shares. It may be necessary to make an additional payment of the difference in cost to one of the parties to the agreement. If the parties cannot find a common language, then they will have to file papers in court.

What can you give by proxy?

Citizens and legal entities can draw up deeds of gift for different types of gifts that belong to them as property:

Features of donating movable property

Is a gift agreement valid after the death of the donor?

Further actions of the representative

After the power of attorney is issued, the owner of the property transfers it, along with other documents, to his representative. The trustee prepares a draft agreement, negotiates with the beneficiary, and sets a date for signing the gift agreement. On the designated day, the parties to the transaction go to the notary and enter into an agreement. The final stage of the procedure is the re-registration of ownership of the recipient.

If the alienated property is jointly owned by several persons, then the principal’s representative will have to decide on the eve of signing the agreement the issue of obtaining consent to the transaction or allocating shares in kind.

Upon completion of the assigned task, the representative must notify the principal. After which his obligations cease.

Features of donation by power of attorney

The main rule regarding the power of attorney is established in paragraph 5 of Art. 576 of the Civil Code of the Russian Federation. According to it, the document must contain information about the donee and the subject of the donation (gift). Without such information, the power of attorney is void, and it is impossible to draw up a DD using it. For example, it will not be accepted when registering a transfer of ownership in Rosreestr, and in general the transaction will be easier to challenge.

There are other rules:

• The donor's representative does not have the right to make transactions in relation to himself and act as the donee (clause 3 of Article 182 of the Civil Code of the Russian Federation);
• Powers of attorney on behalf of citizens in prison, in military service, in stationary social organizations, with the signature of an authorized leader, are equivalent to notarial ones. He certifies the document, because a person does not have the opportunity to come to a notary’s office;
• To transfer a gift from a legal entity, a power of attorney is issued by the head or other authorized citizen in accordance with the constituent documents and legislation (Article 185.1 of the Civil Code of the Russian Federation).

Note! If an attorney acts on behalf of the company when donating by proxy, you will need not only the signature of the manager, but also a seal.

Is it possible to issue a deed of gift to a third party?

Due to one or another circumstance, it is not always possible for the owner of real estate to independently formalize the transaction of donating an apartment. In this case, current legislation requires the involvement of third parties who will represent the interests of the property owner. To do this, you need to draw up a special document - a power of attorney.

According to Article 185 of the Civil Code of the Russian Federation, a power of attorney is a written authority that is issued by one person to another for representation before a third party.

Any capable citizen can obtain an agreement to grant the rights of an apartment owner. As a rule, close relatives or acquaintances who are trusted by the property owner become the trustee. However, if there is no person in the donor’s circle for whom the paper can be drawn up, you can turn to professional lawyers for help. This can also be done if the owner is not confident in his legal competence or does not want to carry out the transaction.

Types of powers of attorney and their differences

The Civil Code of the Russian Federation provides for several types of powers of attorney: one-time, special, general.
According to their form, they are divided into two subtypes: simple written and notarial. There are also distinctions based on the validity period: urgent, issued for a specific period, and unlimited - drawn up for an indefinite period of time: it is canceled strictly in certain cases. Powers of attorney are also divided according to the number of parties to the transaction: unilateral, where the interests of one donor are represented by one attorney, and multilateral, involving several principals and attorneys.

For donations, powers of attorney are of greatest importance in terms of the scope of powers. Let's look at them in detail.

One-time power of attorney

A one-time ticket is issued for a representative to perform one specific action. When donating, you can indicate that the citizen is only authorized to sign the DD or submit documents for registration.

Legal advice: a one-time power of attorney is the best option for giving. It strictly limits the rights and capabilities of the representative, thereby reducing the risks of the principal.

Special power of attorney

A special one is issued for performing similar actions during a certain period. According to it, the representative has the right to sign the DD or submit documents for registration several times. This option is not very suitable for donation if you need to issue only one deed of gift.

General power of attorney

The most dangerous option for the donor is a general power of attorney. It does not limit the attorney’s powers, and he will be able to use it to perform any actions with property: donate, exchange, sell.

Legal advice: even if you completely trust a person, it is recommended not to issue a general power of attorney for him. It is better to limit yourself to a one-time or special one in order to preserve relationships and property.

Advantages and disadvantages

Drawing up an agreement to donate an apartment under a trust agreement has both positive and negative aspects.

• The advantages of such a transaction include the release of the donor from collecting the necessary papers, drawing up a deed of gift, as well as from personal presence at the transaction.
• The main disadvantages are the lack of awareness of the owner of the alienated property about the progress of the transaction, as well as the possible fraudulent behavior of the trustee to obtain his own benefit.

A power of attorney for an apartment donation agreement is the best option for the alienation of real estate in the absence of personal ability to carry out the transaction. A decent representative and a properly executed trust agreement will allow the property owner to donate an apartment with minimal hassle.

How to donate real estate by power of attorney: step-by-step instructions

The procedure is similar to an independent donation by the parties, but there is one step in it - the execution of a power of attorney for the representative. Both the donor and the donee have the right to do this if they cannot be present at the transaction in person.

Important! The agreement can be signed in person, and a power of attorney can be issued to an attorney to register the transfer of ownership, because the presence of all participants in the transaction is required. If it is not possible to sign the DD, a representative has the right to do so.

Step 1: agreement with the donee

First, you need to agree on the deal with the recipient of the gift: tell him what property is being transferred to him, when and where to sign the deed of gift. This step is important because... he can refuse the deal (Article 573 of the Civil Code of the Russian Federation).

Step 2: execution of a power of attorney

It is necessary to find a person to represent your interests. It can be a relative, acquaintance, friend - the choice is left to the principal. If the attorney agrees, you need to issue a power of attorney with a notary.

Contents of the power of attorney

The power of attorney is drawn up in writing and must contain the following information:

• The nature, range and scope of powers of the attorney;
• Full name, passport details of the principal and representative;
• Duration of powers;
• Description of the subject of the transaction: address of the property, area, number of floors, number of rooms, etc.;
• Information about the donee;
• Possibility or impossibility of transfer of trust;
• Details of title documents for real estate;
• Signature of the principal;
• Signature and seal of a notary.

If the principal is a legal entity, the organization's seal will be required.

Sample of a one-time power of attorney for donating a share in an apartment: alt:

Validity

According to Art. 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate its validity period remains valid for 12 months from the date of signing. If the date is not specified, the document is considered void. The maximum period is 3 years.

If a notarized power of attorney is intended for transactions abroad and does not contain information about the validity period, it is valid until canceled by the principal.

Documentation

To issue a power of attorney you will need:

• Passports of the principal and attorney;
• Certificate of ownership or extract from the Unified State Register for housing;
• The principal's title documents for real estate: purchase and sale agreement, exchange, etc.

State duty

According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 200 rubles. If a notary's assistance is required in preparing a document, this is paid separately. On average, prices for additional services start from 2,000 rubles. and depend on the region.

Step 3: registration of deed of gift

When the power of attorney is issued, you need to sign the DD. An attorney does this on behalf of the principal (donor), and the donee signs independently.

Important! If the DD requires certification, it must be signed directly by a notary.

Documentation

The list of documents is almost the same as when drawing up a power of attorney:

• Passports of the parties;
• Power of attorney;
• Deed of gift (if drawn up independently and not from a notary);
• Real estate documents.

Step 4: registration of the transaction in Rosreestr

After signing the DD, the representative and the donee need to come to the MFC or Rosreestr to submit documents for re-registration of ownership. If a contract of promise of gift has been drawn up, the application is submitted only from the moment its execution begins - the date is indicated in the document.

For registration, the list presented above is provided, but in addition to it you will need a deed of gift.

Note! If the gift is not real estate, but, for example, a car, registration is not required. All you need to do is make changes to the title and register the vehicle with the new owner.

State duty

Individuals pay 2,000 rubles for re-registration of real estate, organizations – 22,000 rubles.

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.

Termination of power of attorney

According to Art. 188 of the Civil Code of the Russian Federation, a power of attorney is revoked for one of several reasons:

• The expiration date specified in the document occurs;
• Cancellation of a power of attorney by the principal;
• Refusal of the attorney's authority;
• Death of the principal or representative;
• Bankruptcy of an attorney or representative in an arbitration court if he loses the right to issue powers of attorney.

To terminate powers, a consent to refuse is drawn up. The parties have the right to draw it up at any time and contact a notary.

Concept and parties to the gift agreement

Under the gift agreement, in accordance with paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, is understood as a written or oral agreement on the gratuitous transfer by the donor in favor of the donee of certain property benefits - property, property rights or the release of him from certain property obligations. The gratuitous nature presupposes the absence of a counter-property representation on the part of the donee ; its presence entails pretense and, therefore, the invalidity of the donation (clause 2 of Article 170 of the Civil Code).

Attention

Not all legal entities can participate as parties to a gift in a transaction. So, according to paragraph 2 of Art. 575 of the Civil Code, incapacitated and minor persons, as well as their legal representatives, cannot act as more than 3 thousand rubles

At the same time, employees of educational, medical and social institutions, state and municipal employees prohibited In addition, donation is prohibited between commercial organizations (clause 4 of Article 575 of the Civil Code).

A gift agreement in most cases has only unilateral obligations only for the donor, although it is bilateral in nature. As an exception, gift agreements may have formal conditions for the donee, but these conditions should not give rise to property obligations for the latter.

The legislator by the provisions of Art. 572 of the Civil Code of the Russian Federation allows the conclusion of not only a real (executed at the time of conclusion), but also a consensual donation agreement (containing a promise of donation in the future).

A gift agreement cannot contain any continuing or continuing rights and obligations of the parties after its actual execution.

Risks of giving by proxy

There are several risk factors when making a gift by proxy. If a general agreement is drawn up, the attorney will be able to dispose of the principal’s property at his own discretion: not give it to the donee, but transfer everything to himself or sell it to other people. It’s better to make a one-time deal, for a specific transaction.

There is another point: if another person wants to challenge the DD, in court he can refer to the fact that the principal did not understand the consequences when drawing up the power of attorney. That is why it is recommended to have the document certified by a notary: this way the chances of the transaction being canceled will be reduced. Notaries always explain the rights, obligations and consequences for the parties. If it is determined that the owner is in poor condition and does not understand the consequences of the gift, the certification will be refused.

Who can you trust with the deal?

The choice in favor of a trusted person is entirely at the discretion of the owner. He may give preference to his relative, close friend, or even a lawyer . The main requirement from the point of view of the law is adulthood and legal capacity.

A proxy cannot be:

• minors under 14 years of age and minors under 18 years of age;
• an incapacitated citizen (for example, by a court decision);
• donee (recipient of a share in the apartment).

Try to entrust the transaction to a trusted person who has a good reputation and will not use the power of attorney for personal gain. It is important to remember that housing transactions attract scammers. Approach your choice responsibly!

Arbitrage practice

Often, interested parties turn to the courts to invalidate DDs and powers of attorney, justifying this with the above reasons or a violation of their interests.

Here are some examples of decisions where claims were satisfied:

• Decision No. 2-3/2019 2-3/2019(2-517/2018;)~M-466/2018 2-517/2018 M-466/2018 dated January 22, 2021 in case No. 2-3/2019 ;
• Decision No. 2-17/2019 2-17/2019(2-2093/2018;)~M-1268/2018 2-2093/2018 M-1268/2018 dated January 15, 2021 in case No. 2-17/2019 ;
• Decision No. 2-335/2018 2-335/2018(2-5440/2017;)~M-3301/2017 2-5440/2017 M-3301/2017 dated September 28, 2021 in case No. 2-335/2018 .

Lawyer's answers to frequently asked questions

Is it possible to transfer a power of attorney for donation?

Yes, if this is provided for in the initial power of attorney from the donor or donee.

Is the presence of the donee required when drawing up a power of attorney?

No, his data is enough.

What is the validity period of a power of attorney?

The validity period cannot exceed the period specified in the first power of attorney.

A general power of attorney has been issued for the son to dispose of property. Can he use it to draw up a deed of gift for the apartment and give it to himself?

No you can not. The same person does not have the right to represent the interests of both parties.

Is it possible to call a notary to your home if a person is paralyzed?

It is possible, but transportation costs and services are paid separately from the state duty. The cost is set by regional notary chambers.

Cases for refusal of registration

It happens that a trustee is refused to carry out a transaction to donate an apartment. This is possible if one of the following situations occurs:

1. The real estate donation agreement was drawn up incorrectly. If a notary was involved in drawing up the document, then this situation is excluded. However, when preparing the paper yourself, it is possible to make serious mistakes.
2. Providing an incomplete set of required documents.
3. Expiration of the trust agreement.
4. The trust agreement does not specify the powers of the trustee to conduct a transaction of donation of real estate.
5. The agreement to represent the rights of the donor was issued to the donee, which contradicts the current legislation of the Russian Federation.