How to transfer a share in an apartment to a relative, re-registering a share to another shareholder

Home / Housing disputes / How to transfer a share in an apartment to a relative, another shareholder, another person

The desire to part with a share in the apartment seems quite natural. If a person wants to transfer part of the housing to his relative, another owner or an outsider, it is unlikely that anyone will be able to object to him.

It remains to figure out the method of transferring a share in the apartment, recipients and expenses. Read our article and you will learn about all the intricacies of the procedure.

How to transfer a share in an apartment to a relative of another shareholder

If you want to transfer a share in an apartment to a relative or a stranger, you need to choose one of the options for concluding a transaction:

Purchase and sale. The rules for its registration are enshrined in Article 30 of the Civil Code of the Russian Federation. Other shareholders have the priority right to repurchase. Family ties do not play a role in this case.
Mena. This type of transaction is regulated by Article 31 of the Civil Code of the Russian Federation. As in the case of the sale of a share, there are no differences in re-registering a share to a relative and a non-relative.
Giving. When donating a share, the other shareholders do not have a priority right to receive it. If a share in an apartment is given to close relatives, the transaction is not subject to tax. Otherwise, the tax will be 13% of the value of the share.

The choice of transaction option depends on the goals of the owner of the real estate share and the terms of the transaction.

Features of donating a share of a room

A room is part of a living space, and according to Art. 244 of the Civil Code of the Russian Federation is in common ownership, which, in turn, is of two types:

Joint, where shares are not allocated, real estate belongs to everyone on equal rights;
Shared - with the allocation of shares by agreement of the owners or in court.

An apartment or house can be divided between the owners in kind, i.e. by allocating them specific premises that belong to them. But this will require the installation of separate inputs and compliance with a number of technical requirements, which is not always possible or advisable. If this leads to disproportionate damage, it will not be possible to allocate a share in kind.

To allocate a share in kind, it is important that the premises meet the established requirements:

Complete isolation and independence from the rest of the apartment;
Conducting individual communications;
Having your own entrance;
Compliance with sanitary and building standards.

Important! By law, you can donate a share of a room allocated in kind, but you will have to reconstruct the property. It is easier to draw up a deed of gift for a share of ownership, where specific premises are assigned to the owners by verbal agreement.

It is worth considering that a gift implies a gratuitous transfer of ownership of property, therefore the donor has no right to demand money or reciprocal services from the recipient. The gift agreement itself (hereinafter referred to as the DD) is drawn up in writing and must be certified by a notary in this case.

In an ordinary apartment

If the apartment consists of one or more rooms, you can donate a share in the ownership. The consent of the other owners will not be required. The allocation of a share in kind is permitted if this does not lead to the destruction of real estate and disproportionate damage to the owners. In practice, this is problematic to implement.

Example:

The spouses each own ½ share of the right to the apartment. The woman decides to give half of her share to the child. After the transaction, the man retains ½, as before, and the donor’s share is divided in half with the minor.

In a communal apartment

In communal apartments, the number of owners is usually equal to the number of rooms. Often there is a need to register a share for one more person, and this can be done by drawing up a deed of gift.

According to the DD, the room will go to the donee, but he will be able to use the common premises in agreement with the other owners.

Procedure

The sequence of actions for transferring a share to a relative or third party does not depend on the type of transaction. It includes the following steps:

Agreement. When selling a share, you must obtain the written consent of all shareholders. They are given a month to make a decision. Only after this can you start selling the share if none of the other apartment owners wanted to buy it. In the case of a gift, the agreement concerns the consent of the donor to give the share, and the recipient to accept it as a gift.
Preparation of contract. For each type of transaction, the legal requirements for this document must be taken into account.
Certification of the transaction by a notary. Any transactions with real estate shares must be officially certified.
Re-registration of property rights. To do this, you need to contact Rosreestr or MFC. The result will be making changes to the real estate register and issuing an extract from it.

Most real estate share transactions are voluntary. An exception is a court decision on the forced sale of a share in an apartment. There must be good reasons for making such a decision.

How can I cancel a registered gift?

Options for eliminating the transfer of rights through donation:

significant harm to the health of the donor, as well as his life, due to the fault of the purchaser of real estate;
the established fact of passion at the time of the transaction.

The last point is almost impossible to prove, especially in cases with shares. After all, any actions with them from June 2, 2021 are recorded with a notary’s seal. And he, as you know, checks the capacity of clients.

REFERENCE: Changes in the legislation regarding shares affected buildings this time, but on the contrary, such an obligation for land was cancelled. A deed of gift can only be contested through court.

An example of a statement of claim to invalidate an apartment donation agreement.

Find out about possible ways to cancel and terminate a gift agreement here.

Required documents

To register a share of real estate in the name of a new owner in Rosreestr (or in the MFC), you need to submit the following documents:

Statement from each owner.
A copy of the agreement.
Documents establishing rights to each part of the apartment.
An extract from the house register or apartment card.
If the share was acquired during marriage, then the written consent of the spouse is required.
Copies of owners' passports.
Apartment registration certificate.
Receipt for payment of state duty.

If any documents are missing, property re-registration will be refused.

Step-by-step plan for apartment renovation

So, to re-register real estate in favor of relatives, you need to do the following:

Carefully study each option, take into account all their advantages and disadvantages. If necessary, you can additionally consult with lawyers.
Collect all documents, check their completeness and correctness.
Have them certified by a notary office.
Pay all fees associated with the selected type of real estate re-registration.
Complete registration of ownership of residential space.

Price

As a rule, transactions with real estate and shares in it are associated with a number of expenses:

Payment for notary services. From 1 to 5 thousand rubles for drawing up an agreement. The specific amount depends on the type of transaction, its value and the region where the document was executed. The notary must submit a document on the estimated value of the share. Based on this, he will determine the amount of the state duty.
Registration with Rosreestr is possible only after paying a fee of 2000 rubles (the amount is fixed and is indicated in Article 333.24 of the Tax Code of the Russian Federation).
Tax of 13% on certain types of transactions (in accordance with the law).

The most profitable option for re-registering a share in an apartment to a relative is a gift, since transactions of this type concluded between close relatives are not subject to tax.

Common and shared ownership: differences

The law divides property into two types. Joint ownership: Each apartment owner owns an equal share. This is indicated in the documents for the living space, but what specific property is not indicated. For example, an apartment of 40 sq. meters belongs to a family of three people in equal parts.

Shared ownership: the apartment is divided into specific shares. For example, in an apartment of 40 square meters. meters, my son owns a room of 10 square meters. meters, and his parents - the remaining area, 15 square meters each. meters for each. The owners of such an apartment enter into an agreement among themselves, in accordance with which they dispose of their shares. Each owner of a share has the right to sell his share, donate it or exchange it (Article 246 of the Civil Code of the Russian Federation).

The owner can transfer the share of the living space to any person, including a relative. If other owners of this apartment want to buy a share, their desire will be taken into account first. Therefore, the shareholder must notify the co-owners of all transactions with living space (Article 247 of the Civil Code of the Russian Federation). If the owner of a share in an apartment has made major repairs at his own expense or otherwise transformed the apartment, he can apply for an increase in the share (Article 245 of the Civil Code of the Russian Federation).

Nuances and features of registering a share for a minor child or mother

When wondering how to transfer a share in an apartment to a relative, you need to take into account additional features of re-registration to specific relatives.

A minor child is limited in the right to enter into transactions, but can become the owner of real estate. Therefore, when re-registering a share in an apartment in his name, the agreement will be concluded by the child’s parents or guardians. If the child is already 14 years old, he must also sign the document, but the transaction must be signed by a parent or guardian.

You can transfer a share in an apartment to your mother on the same grounds as to other relatives. But if this share is transferred by a minor child, then it is necessary to obtain the consent of the guardianship authorities for this transaction. If they do not give such consent, it can be carried out only after going to court, and subject to a positive court decision.

How to get it certified by a notary?

At the first stage, the official’s participation is as follows:

the identity of the parties involved in the process is established. The capacity of the parties is checked. Donations from minors and incapacitated persons are prohibited by the Civil Code of the Russian Federation (Article 575) and the Fundamentals of Legislation on Notaries (Article 42, and).
The desire and desire of persons to make a donation is determined (compliance with Article 54 of the Fundamentals of Legislation on Notaries).
The legal consequences and meaning of the transaction are explained.

In general, the rules for the process of donating a share are identical to the usual alienation of all property . Any person can act as a recipient of a gift.

But if the donee is under 14 years old, then his legal representative participates in the donation procedure instead. If the age of the donee is more than 14 years, but the age of majority has not been reached, then the donee signs the document himself, but always in the presence of a legal representative. The latter has the right to issue a power of attorney, and then all actions to complete the transaction will be performed by the authorized person. Similarly, the donor can also appoint any person as his principal.

In connection with the adoption of the Federal Law “On State Registration of Real Estate” dated July 13, 2015 N 218-FZ, which came into force on January 1, 2017, there is now a unified cadastre and registration database - the Unified State Real Estate Register (USRN). Until January 1, 2017, it was possible to request separately data from the Unified State Register and a separate cadastral passport.

Now information from two sources is combined into one document . If you have a previously ordered cadastral passport, the notary will still force you to receive information with current data on the day of your visit to him. Notaries themselves can order extracts from the Unified State Register of Real Estate in the register for your property, and receive them on the same day, then you will not have to waste time visiting points for receiving and issuing documents.

From our separate publications you will learn about the nuances of drawing up a deed of gift for two recipients in equal shares, as well as in what cases you can cancel or terminate the agreement.

Documents for registration of deed of gift for an apartment

Passports of all participants in the process.
Title document. If the right to a share is formalized in justice, then this is either a registration certificate or an extract from the Unified State Register.
A document according to which the right is registered to the owner of the property. Such a document will definitely be indicated both in the certificate of ownership and in the USRN extract. If the donor has not registered his right with the relevant government agency, then such documents will be: a sales contract, a BTI registration certificate, a deed of gift and a certificate of inheritance from the nineties, etc.
Certificate about the number of people registered in the apartment.
Cadastral passport or extract from the Unified State Register.
Consent of the donor's spouse to formalize the transaction with a notary's seal (only when the apartment was purchased during marriage). If the transaction by which the donor acquired the right to a share of the apartment is gratuitous (inheritance, donation), even at the time of registered marriage, consent is not required. But the co-owner’s consent to donate a share is not required, unlike its sale (in any situation, donation of a share of an apartment can be done without the consent of the second owner, find out here).
Consent to the acceptance of a share by a minor from the guardianship authorities or his guardians is necessary if the donee is under 18 years of age.

We provided a complete list of documents required to formalize the transaction of donating a share in an apartment in a separate article.

ATTENTION! If the apartment that is the object of a donation is not registered in the cadastral register (there is no certificate of title or an extract from the Unified State Register of Real Estate, and the available documents were issued before 2000), then the notary will require that you initially register the apartment, and then he will issue a deed of gift.

At the second stage, the notary proceeds directly to drawing up the deed of gift itself (whether it is possible to draw up a deed of gift yourself and how to do it correctly using a sample, you will find out in the special material).

Form of agreement for donating a share in an apartment to a minor.

Consent of the spouse to donate a share of the apartment.

What points are required?

Full name of the parties to the transaction, passport details, registration address. This information must be verified.
Item of donation. As a rule, from the cadastral passport, the notary rewrites the unique characteristics of the real estate object: its own cadastral number, location, area, floor, which is not repeated throughout the country.
Legal documents. A mandatory item is to indicate the registration number of the right and the document through which the right was acquired, as well as the date the donor became the legal owner of the apartment or its share.
The size of the alienated share.
Price of a share of an apartment. Despite the fact that the transaction is free of charge, the cost of the apartment share is specified in the contract, from which the notary will calculate the amount of payment for his services.
No arrests, encumbrances, collateral. This means that the share cannot become the object of claims from third parties. If these restrictions exist, the notary will not certify the deed of gift.
Consent of the donee to accept a share as a gift. This means that he is assigned the responsibility for repairs and payment of utility bills.

The official takes almost all this information from the documents you submitted.

Remember that the risk of typos also exists in the notary’s office, and carefully check the contract down to the numbers in the registration record of ownership. Reworking a contract involves an unpleasant time investment.

Judicial practice on re-registration of shares

Court cases involving the transfer of shares to other owners are not uncommon. Often relatives or other owners cannot agree and begin to dispute the right to transfer the share to one of them. For example, in a situation where parents and their daughter have shares in an apartment, and the parents decided to transfer their shares to their grandson. The daughter can claim the right to a share. From a legal point of view, such claims are absurd, since parents have the right to conduct a gift transaction with whomever they see fit. Family ties and consent of other shareholders do not play a role in this case.

In case of any controversial issues, you should seek advice from a lawyer. And only if it was not possible to resolve the conflict pre-trial, you need to file a claim in court.