Transferring a share in an apartment to a relative - procedure

The right of minor children to a share in an apartment

A person aged 0 to 18 years can be the full owner of real estate. Including shares in the apartment. The owner can own and use the object for its intended purpose.

However, due to the lack of full legal capacity, the child cannot dispose of the object. He does not have the opportunity to sell a share in real estate, donate it or lease it.

The authority to dispose of the property of a minor is vested in the legal representative (parent, guardian/trustee). At the same time, the law limits its capabilities.

The representative has no right:

• donate a share in real estate on behalf of the child;
• sell property without approval from the district guardianship department.

Therefore, the parent can only freely transfer the property for rent.

If the owner of the share is a minor (from 0 to 13 years), then the parent can make decisions on renting out the property independently. A minor (from 14 to 18 years old) enters into a transaction independently. However, the written consent of the representative is additionally required.

Rights and responsibilities of parents

All actions with real estate are carried out by legal representatives. Such actions include only paying property taxes. Otherwise, adults cannot manage housing in any way.

Such an apartment cannot be sold, donated, exchanged, rented out, pledged, divided into shares, registered in a will, etc.

To carry out these transactions, it is necessary to obtain consent from the guardianship and trusteeship authorities. And getting this consent is quite difficult

.

As a rule, a positive result is given if an alternative replacement is provided: an exchange for an apartment of the same or larger area.

The main negative aspects of registering real estate in the name of children lie in limiting actions with the house. However, this provides a guarantee that the property will remain with the minor.

Registering a share in an apartment for a minor child

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The child may be the owner of the property. The grounds for the emergence of rights directly depend on his age.

Since a minor cannot be an independent party to the transaction, his interests are represented by a parent. He is empowered to carry out the transaction on behalf of the minor and gives consent to the minor. Although the child is not actually present when the transaction is executed, he or she has rights and responsibilities.

A child may acquire ownership of a share in real estate in the following cases:

• when accepting a share as a gift;
• when purchasing a share in real estate;
• when fulfilling an obligation by parents (using maternity capital);
• transferring part of the apartment as alimony;
• upon inheritance.

When executing a transaction involving shares in real estate and the participation of minors, the transaction is subject to mandatory notarization. Otherwise, Rosreestr will refuse state registration.

When buying an apartment

One of the options for re-registering a share in an apartment for a child is to include the minor in the purchase and sale agreement. To conclude a transaction, the consent of the district guardianship department is not required.

However, if the settlement of the transaction requires the use of funds from the child’s account, then it is necessary to obtain permission for the disposal. To do this, the parent must submit a preliminary purchase and sale agreement to the guardianship department at the place of registration of the minor.

The document must contain information about the child’s acquisition of a share corresponding to the amount of money or more. Reducing part of the property when using children's funds is not allowed.

In practice, this situation arises when a family wants to improve their living conditions. But there is no money to buy a new apartment. Therefore, they sell their own home and use the proceeds to buy a new one.

If the child had a share in the old apartment, then it can be sold in such a situation, with the consent of the guardianship department. But the funds must be transferred to the child’s personal account. When a new home purchase transaction is completed, the money is transferred directly to the seller. But the minor must receive a share in the property equal to or greater than the amount sold.

When donating a share

Donation is a one-sided transaction. But the recipient must agree to accept the property.

A child cannot independently express an opinion when making real estate transactions. Therefore, the parent expresses consent to receive property as a gift.

Important! When transferring property as a gift, obtaining permission from the guardianship department is not required.

The donor can be either a parent or another person. If the transaction is from a distant relative, you will need to pay tax. Minors are not exempt from paying personal income tax when making a gift.

If a share in an apartment is given by one of the parents, then the second acts on behalf of the child. In the absence of the second parent, this responsibility falls on the guardianship department.

When fulfilling an obligation when using maternity capital

Since 2007, the Russian Federation has had a program to provide families with maternity capital when they have a second child. Assistance can be spent for purposes provided for by law. One of them is improving living conditions.

When spending financial support on housing (purchase, mortgage repayment, construction), parents give an obligation to allocate shares in the residential premises to their children.

The obligation is drawn up in written notarial form and must be fulfilled within 6 months. The exception is the situation with mortgage repayment. In such a situation, the share must be allocated within 6 months after repayment of the loan.

A minor's right of ownership arises on the basis of an agreement to allocate a share for the purpose of fulfilling an obligation. The document is drawn up in simple written form and is subject to registration with Rosreestr.

When inheriting

A child can receive a share in real estate by inheritance. Moreover, he can act both as an heir by law and as a beneficiary under a will.

Acceptance of inheritance on behalf of a minor is also carried out by a legal representative. However, he cannot refuse to receive property if the deceased has debts.

To issue a waiver, you must obtain the consent of the guardianship department. To do this, you need to prove the obvious unprofitability of accepting the property. For example, the share is too small, and the debts of the deceased are much greater.

When concluding an agreement on alimony

Art. 104 of the RF IC provides for the possibility of replacing regular child support payments with a one-time transfer of property. In such a situation, the father may, when drawing up an agreement on the payment of alimony, provide for the transfer of a share in the apartment to the child.

The cost of the share must be taken into account. It should approximately correspond to the amount that a man will pay if he makes regular payments. In addition, the recipient (mother or child between the ages of 14 and 18) must agree to accept the property for child support.

The implementation of the agreement ends from the moment the share in the apartment is registered in Rosreestr. Moreover, it is the minor who must become the owner of the share.

When can you dispose of property?

Another important question arises: at what age can one own and conduct transactions with donated real estate?

Until the age of 14, housing is managed by legal representatives within the scope permitted by the state. Any actions are controlled by the guardianship and trusteeship authorities.

After the child turns 14 years old and until adulthood, the state allows transactions with housing, but with the consent of the trustees (parents, guardians, representatives).

A young citizen receives full right to dispose of property after he turns 18 years old . In some situations, exceptions are possible: the owner has the right to take procedural actions in the event of emancipation.

Emancipation is the process of a court recognizing a minor as legally competent. The court may take the teenager’s side if sufficient evidence is collected and presented to confirm his independence.

This happens when a young citizen is officially employed, has entrepreneurial activity, or has entered into a legal marriage.

Step-by-step algorithm

The registration procedure varies little depending on the type of transaction. Each option has common points.

Algorithm of actions:

1. Collection of documents.
2. Payment of duty.
3. Contacting a notary office.
4. State registration.
5. Payment of tax (if necessary).

All actions to register a share for a child are carried out by his representatives. If the recipient is a minor, then he visits the notary's office to sign.

Collection of documents

List of documentation for registering a share in an apartment for a child:

• owner's civil passport;
• child's birth certificate;
• civil passport of the minor recipient;
• civil passport of the legal representative;
• documents that confirm the authority of the representative;
• title document for a share in the apartment;
• extract from the Unified State Register of Real Estate;
• fee payment receipt;
• certificate of absence of debt for housing and communal services;
• extract from the house register;
• technical documentation from BTI.

Documents that confirm the authority of the representative

Options for documents on the basis of which ownership rights are transferred to the child:

• contract of sale;
• gift contract;
• notarial agreement on replacing alimony with property;
• agreement on the fulfillment of the obligation for maternity capital;
• certificate of inheritance rights.

All documents, with the exception of the certificate of inheritance rights, are prepared in 4 copies (to the owner, to a minor, to a notary, to Rosreestr).

Payment of duty

Regardless of the type of transaction, the parties bear certain costs. One of them is paying the notary fee.

Since a minor cannot bear the expenses on his own, their payment is entrusted to the legal representative. The amount of costs directly depends on the type of transaction.

The amounts depend on the region of circulation; expenses are indicated for 2021 in Moscow.

At the notary's office you must pay:

• when registering a transaction – 0.5% of the transaction amount;
• in case of inheritance - 0.3% - if the child is a brother/sister, son/daughter, 0.6% - if the minor is not one of the listed relatives;
• notary services for registration of sales and purchase agreements, donations – 11,000 rubles;
• when certifying an agreement to replace alimony with shares in an apartment - 8,000 rubles;
• certification of the agreement on the allocation of shares upon fulfillment of the obligation for maternal capital - 5,000 rubles;
• legal and technical services for inheriting a share in an apartment – ​​6,000 rubles.

Contacting a notary office

Notarization of transactions with shares in real estate with the participation of minors is mandatory.

Possible options:

1. In case of inheritance, contact the notary office at the place where the inheritance was opened.
2. When completing transactions, contact any notary office at the request of the parties.
3. Calling a notary to your home (costs increase by 1.5).

State registration

From 2021, when contacting a notary office to certify a real estate transaction, the parties to the transaction are exempt from visiting Rosreestr. The notary independently submits documents for registration.

However, payment of the state duty is still the responsibility of the parties. In 2021, when registering a share in an apartment, you must pay 2,000 rubles.

The ownership right to a share arises in a minor from the moment of making changes to the Unified State Register.

Legal difficulties when transferring shares to children

The main difficulty is ignoring the need to certify documentation through a notary. It's better to pay a relatively small amount than to have problems later. The purchased housing must be transferred into shared ownership for each family member, without exception - for each spouse and child.

Difficulties may also arise if it is necessary to sell housing purchased with maternity capital. If the children are minors, then the guardianship authorities may be involved in the procedure. The child's share in the apartment when the parents divorce remains the same.

Deadlines

The registration procedure does not take additional time if the participant in the transaction is a minor. Registration period:

• preparation of a draft document – ​​1 – 2 days;
• certificate from a notary – 1 day;
• state registration – 7 – 14 days.

In case of receiving property by inheritance, registration of ownership is possible after receiving a certificate of rights to the apartment. It is issued 6 months after the death of the owner.

It may take additional time to obtain permission from the district guardianship department. It is issued within 14 days from the date of application. However, the legal representative must prove that the minor’s property rights are protected.

Financial costs for the procedure

The first thing the parties to the contract (most often the child’s representative) will have to spend money on is paying for notary services.

If you turn to a government specialist, the cost of his services will be three thousand rubles, a private notary can cost much more, his services can cost up to 0.3 of the cost of a share of the apartment, but cannot exceed 50,000 rubles.

Next, it may be necessary to pay a fee, which is 13% of the value of the share that is being donated, but payment is only necessary if the parties to the agreement are not closely related.

When is a gift transaction impossible?

Donating a share of an apartment to a minor may be prohibited if the donor does not have the right to dispose of the property, when the housing or parts thereof are seized, or if the housing is in debt. Donations from incapacitated citizens, as well as on behalf of minors, are not allowed. It will be impossible to carry out the transaction if one of the spouses who is a co-owner does not give written consent to the donation.

Some nuances of transferring a share of an apartment to children

From the moment the certificate of ownership is issued, the child is considered the owner of his share of the apartment. But he will receive the right to dispose of property only upon reaching eighteen years of age or during the period specified in the additional clause of the agreement, if an additional condition is provided for in the deed of gift.

Important! Before the recipient enters into his property rights, any manipulations with the donated part of the housing are strictly prohibited.

Taxes

A minor owner does not have tax discounts. Therefore, in case of receiving the property, he must pay the necessary fees (if any).

When receiving a share in an apartment as an inheritance, a minor is exempt from income tax.

When receiving property as a gift, the child pays tax in the case of a gift from an outsider or distant relative.

When drawing up an agreement on alimony and an agreement on the fulfillment of an obligation, as well as a purchase and sale agreement, tax payment is not expected.

How to transfer a share to a relative

There are several ways of alienation - sale, barter, donation. Each of them has strengths and weaknesses. When concluding a purchase and sale agreement, the priority right of redemption belongs to the co-owners.

Alienation of property to third parties is permitted only upon refusal of the main applicants. When concluding a deed of gift, such restrictions may not exist.

For free

The best option for the alienation of property is a gift agreement. Relatives do not pay income tax.

However, such transactions are not completely free. A state fee is charged for notarization of the deed of gift.

Participants in the transaction are paid separately for notary services.

Without deed of gift

Is it possible to give away a share without registering a deed of gift? You can transfer part of the apartment to a relative by concluding a purchase and sale agreement or exchange.

Both options are appropriate within the framework of inheritance law. For example, if several people inherited shares in different property.

Co-owners can agree among themselves to buy out or exchange the missing part. The ultimate goal of such transactions is to obtain ownership of the entire object.

Citizens can also draw up an agreement on the division of inheritance. However, they must first obtain a certificate from a notary (Article 1165 of the Civil Code of the Russian Federation). The choice of method for transferring part of the property depends on the circumstances of the case.

Rights of a minor to the father's share

Minors do not have automatic rights to the property of their mother and father. Therefore, a child can receive a share only if the parent voluntarily transfers part of the property to him.

If the mother and father divorce and share an apartment that is jointly owned, the child does not receive a share. The parents' property remains their property.

The registered child is not the owner of the apartment. Registration is not the basis for the emergence of ownership rights.

Judicial practice on re-registration of shares

Disputes arise most often during the division of property after a divorce. Further living together is not possible. Of course, a decent husband can offer his ex-wife to move into an apartment he bought, the area of ​​which is equal to or slightly larger than the share in the jointly owned housing. This is a more painless result, which you should not refuse.

Another question that often arises when dividing a mortgaged apartment. Even if the loan was repaid by one of the spouses, the housing is considered jointly owned and the second spouse has the right to claim a share. The exception is cases when a marriage contract has been drawn up. I would like to recommend that newlyweds carefully study all the points in this document and remove or add to it anything that affects their interests.

Where to register?

The procedure is similar to the usual registration of transfer of ownership, but on behalf of the minor, the application is submitted by his legal representatives. Minors submit an application independently, but written permission from their parents is attached to it.

Do it through the MFC

In the absence of a department of the Federal Service for Registration of Law, Cadastre and Cartography, applicants can contact the Multifunctional Center. The registration period is 9 working days.

Through Rosreestr

The registration period directly with the cadastral authority is 7 working days. During this time, employees make decisions:

1. on making an entry in the Unified State Register of Real Estate;
2. on the return of documents to correct minor errors;
3. about refusal of registration.

The procedure for alienating housing in favor of a child varies depending on the age of the minor. Parents or other legal representatives act on behalf of children under 14 years of age: they make decisions about purchasing housing, and they also sign.

Older children have the right to independently acquire real estate as their own, but this requires parental permission. Until they reach the age of 18 or undergo the emancipation procedure, children do not have the right to independently manage the apartment.

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Pros and cons of owning an apartment for a minor

Possible positive consequences of registering real estate for a child:

1. Providing a child with housing in advance is an investment in the future.
2. Thus, the property is removed from the joint property of the marriage and in the event of a divorce it will not be divided between the spouses.
3. This way you can protect the funds taken on credit. The bank will not be able to obtain rights to this property if the family's financial difficulties do not allow them to pay the loan.

Negative consequences:

1. Personal tax is not reduced. Benefits apply only if the child has a disability.
2. If the child is not in the care of the donor/seller, then after the alienation (re-registration) of the real estate, the donor/seller is deprived of any right to dispose of it.
3. It will not be possible to officially formalize a rental agreement for premises without the permission of the guardianship authorities.
4. You cannot take out a loan against an apartment.
5. Such an apartment cannot be exchanged or exchanged for real estate of a smaller area or value. Social protection authorities evaluate the consequences of such transactions from the point of view of the interests of the child. Exchange for housing located far from the city infrastructure: schools, hospitals, shops, kindergartens will not be approved. There are many reasons for refusal.
6. Any actions related to the apartment/house must be coordinated. The decision by the guardianship authorities is made within several weeks. It will take time and money to collect a lot of papers.

There is another legal aspect of this issue - at the age of 16, a child can become a full-fledged manager of real estate:

• if he is officially employed in accordance with the Labor Code of the Russian Federation;
• or enter into legal marriage.

Let's celebrate! An apartment registered in the name of a minor child can only be sold with the permission of the guardianship authorities, which protect the rights of the minor owner. You should not give or buy real estate to a child if you plan to sell it. Making a will makes sense in a situation where the child is not a close relative of the testator.

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