Restriction of donation - what is it, in what cases does it occur?

A gift agreement implies the transfer of property for free use by the donor to the donee. There are no restrictions on such operations when it comes to individuals. The opposite applies when it comes to an agreement between legal entities or an individual and a legal entity.

However, there are conditions under which donation is prohibited or limited. Violation of such a requirement entails liability under the law.

Prohibition of donation

According to Article 572 of the Civil Code of the Russian Federation, a ban on donation occurs in the following cases:

If the value of the gift is more than 3,000 rubles, and it is intended for a medical worker, social worker, civil servant, or employee of the Central Bank of the Russian Federation.
If the donor is a minor or incapacitated person.
The gift is transferred to a commercial organization.

In all of the above cases, the property that is donated will be considered municipal property.

Arbitrage practice

Most often, persons whose consent was not obtained for the transaction turn to the courts to challenge the DD: spouses of donors, banks and other creditors.

If sufficient evidence is presented, deeds of gift are recognized as invalid, and this is confirmed by several real decisions:

Decision No. 2-4051/2015 2-4051/2015~M-2910/2015 M-2910/2015 dated December 15, 2015 in case No. 2-4051/2015;
Decision No. 2-3181/2016 2-3181/2016~M-2675/2016 M-2675/2016 dated April 26, 2021 in case No. 2-3181/2016;
Decision No. 2-138/2019 2-138/2019~M-82/2019 M-82/2019 dated May 15, 2019 in case No. 2-138/2019.

Legal advice: to avoid problems, it is better to formalize everything properly right away, so that later you do not have to waste time and money on legal proceedings.

Gift Restriction

Prohibition and restriction of donation are not the same thing. In the first case, donation is prohibited at all, and in the second case, it is possible to give, but not to everyone.

Thus, according to Article 576 of the Civil Code of the Russian Federation, the restriction on donation includes the following:

If the property does not belong to a legal entity, but is only under its management.
If the property is owned by several people. In this case, in order to donate the property, the consent of all owners is required.
If "gift" means the transfer of a debt from one person to another. In this case, the consent of the creditor is required.

In the event that the property is not owned, but only managed by a person, then the written permission of the owner of the property must be obtained for donation.

Donation is one of the types of transactions that are the subject of civil regulation. Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or a third party, or releases or undertakes to release it from a property obligation to himself or to a third party.

All subjects of civil law can act as parties to a gift agreement: citizens (including citizens of the Russian Federation, foreign citizens, stateless persons), legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities. The subject of a gift can be, for example, real estate, a car, money, securities and other property of value. However, in Russian civil law there is a list of rules prohibiting and limiting donations. What prohibitions on making gift transactions are provided for in the legislation? It is not permitted to conclude a gift agreement that provides for the transfer of the gift after the death of the donor. The transfer of ownership will not be registered if the donor is not alive at the time of registration, even if there is a notarized agreement. If the transfer of ownership was not registered during the life of the donor, then the property will be included in the estate of the deceased donor. The prohibition of donation is devoted to Art. 575 of the Civil Code of the Russian Federation. It lists cases when a ban is imposed on the execution of a gift agreement. The rules contained in this article apply to all cases of donation, with the exception of the transfer of ordinary gifts, the value of which does not exceed three thousand rubles. The law prohibits donations on behalf of minors (children under 14 years of age) and citizens declared incompetent by a court. The existence of this norm is explained by the need to ensure and protect the property interests of minors and incompetents, protecting them from possible abuses by their legal representatives. Donations to civil servants and employees of municipal bodies are not permitted in connection with their official position or in connection with the performance of their official duties. Gifts to employees of medical, educational institutions, social security institutions and other similar institutions by citizens undergoing treatment, maintenance or education there, spouses and relatives of these citizens are not permitted. And another case of prohibition of donation is established for commercial organizations in relations between them. The prohibition of donations between commercial organizations does not prevent the implementation of legitimate business activities. This ban does not apply to all organizations, but only to commercial ones. Along with the prohibition of donations in Russian civil legislation, there are a number of restrictions on similar transactions that relate to various circumstances involving legal entities and citizens. Thus, a legal entity to which a thing belongs under the right of economic management or operational management has the right to donate it with the consent of the owner, unless otherwise provided by law. Donation of property that is in common joint ownership is permitted by agreement of all participants in joint ownership in compliance with all the rules governing the procedure for disposing of property that is in joint ownership. This norm is necessary to ensure the interests of all its participants. Such consent must be in writing. The spouse (title owner) has the right to dispose of real estate that is the common joint property of spouses only with the prior notarized consent of the other spouse (Clause 3 of Article 35 of the RF IC). Compliance with some additional conditions, which can also be considered as a restriction on a gift, is required when making a gift not by the donor himself, but by his representative by proxy. In this case, the authority of the representative to make a donation, indicated in the power of attorney, should not be of a general, but of a specific nature: the power of attorney must indicate the specific subject of the donation and the specific donee. Failure to comply with this requirement entails the nullity of both the power of attorney itself and the gift agreement. The donation may not take place even in cases where the contract is declared invalid (voidable or void) on the general grounds provided for by the Civil Code of the Russian Federation. A gift agreement may be declared invalid and is considered as such if it is concluded for a purpose that is obviously contrary to the fundamentals of law and order or morality, if it does not comply with the requirements of the law or other legal acts (for example, the requirements of the Civil Code of the Russian Federation for the form of the transaction are not met). If a gift agreement is concluded only for show, without the intention of creating corresponding legal consequences (the so-called imaginary agreement), for example, a person, wanting to avoid foreclosure on his property for any obligations, transfers it under an imaginary gift agreement to another person, then he also may be declared invalid. There are often cases when a gift agreement is concluded in order to cover up another transaction (a sham agreement), for example, part of the property that is in the common shared ownership of several persons is transferred by one of the co-owners under a gift agreement to another person who is not a participant in the common property, in order to avoid this possibility that any of the other participants in shared ownership will exercise their right of first refusal. Thus, the gift agreement actually covers the purchase and sale transaction. If a gift agreement is concluded by the donor under the influence of a misconception regarding the nature of the transaction (for example, the donor believes that he is transferring an item under a compensation agreement) or if the gift agreement is concluded under the influence of deception, violence, threat, malicious agreement of a representative of one party with the other party, then such the contract may also be declared invalid. If the gift agreement is concluded without the consent of the trustee by a citizen whose legal capacity is limited by the court due to the abuse of alcoholic beverages or drugs; if it was concluded by a citizen recognized as incompetent due to a mental disorder or if it was concluded by a citizen, although capable, but at the time of its conclusion in such a state where he was not able to understand the meaning of his actions or manage them, then the gift agreement will also be considered or invalid by its nature, or can be recognized as such at the request of interested parties. An important point for the donor is that Article 578 of the Civil Code of the Russian Federation gives him the opportunity to cancel the donation if the donee makes an attempt on his life, the life of one of his family members or close relatives, or intentionally causes bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand cancellation of the donation belongs to the heirs of the donor. The donor may apply to the court to demand the cancellation of the donation even if the recipient’s handling of the donated item, which is of great non-property value to the donor, creates a threat of its irretrievable loss. The donation can be canceled by the court and at the request of the interested person within six months preceding the declaration of an individual entrepreneur or legal entity as insolvent (bankrupt) and if the donation was made at the expense of funds related to entrepreneurial activities. In addition, the donor and the donee may provide in the gift agreement the right of the donor to cancel the gift if he survives the donee. In all of the above cases, the donee (or his heirs) must return the gift that has been preserved in kind. If this becomes impossible both in the event of destruction of property and in the event of its alienation, the donor has the right to file a claim for compensation for damage. When concluding a gift agreement, you must remember that an invalid transaction does not entail legal consequences. If the transaction is invalid, the donee is obliged to return to the donor everything received under the transaction, and if it is impossible to return what was received in kind, to reimburse its value in money.

Consequences of violating the ban

Violation of the gift restriction prohibition entails consequences. So, if we take into account judicial practice, in most cases the deed of gift is simply canceled, the parties return to their rights at the time when the transaction was not concluded.

However, the following factors should be taken into account:

If the transaction is imaginary or fictitious, then the issue is regulated by Article 167 of the Civil Code of the Russian Federation.
If the transaction is feigned, that is, it has ulterior motives, then the issue is resolved under Article 170 of the Civil Code of the Russian Federation.

Criminal liability cannot be excluded if there is a criminal component in the actions of one of the parties.

Duration of the power of attorney

The general principle established by Art. 186 of the Civil Code of the Russian Federation, represents a power of attorney as an exclusively fixed-term transaction, for which the maximum period of its validity is determined - 3 years . Despite this, the legislator does not oblige the person issuing it (the donor) to necessarily indicate the period of its validity.

But, despite the above, the norms of the mentioned article establish the need to indicate the date of its issue, the absence of which excludes the power of attorney from having legal force. Without specifying the validity period, the power of attorney is valid for 1 year .

Important

However, the above rule regarding the duration of validity applies only to special powers of attorney. If it contains a direct indication of the completion of only one transaction (one-time power of attorney), its validity expires upon the direct execution of the assigned representative powers, even if 1 year has not expired .

Clause 2 of Art. 186 of the Civil Code defines an exception , according to which a power of attorney to perform actions instead of those represented abroad does not have a validity period as such. It is established that it ceases to be valid only from the moment of its cancellation .

Donation restrictions

In this case, the gift agreement implies the transfer of property as a gift not to an individual, but to an organization. However, a donation can only be discussed if the recipient organization is not a commercial one.

There are no restrictions or prohibitions on donations based on the above legislative acts. An individual who is in need can also act as a recipient.

Termination of power of attorney

The conditions upon the occurrence of which the power of attorney terminates are expressly defined in paragraph 1 of Art. 188 Civil Code of the Russian Federation. The reasons indicated in the article can be divided into 3 groups .

Expiration of powers . According to paragraph 1 of this article, the power of attorney is terminated upon expiration of the period for which it was issued. Conventionally, this also includes termination of a power of attorney due to the execution of a one-time authority under it.
Mutual right to terminate . According to paragraphs 2 and 3 of Art. 188 of the Civil Code, the representative and the represented are endowed with the mutual right to unilaterally terminate the power of attorney by canceling it (by the represented) or by refusing representation (by the representative).
Retirement of a party . This group of grounds should include the conditions defined in paragraphs 4 - 7 of Art. 188 Civil Code. According to them, the power of attorney ceases to be valid in the event of termination of the activities of the legal entity to which or to whom the power of attorney was issued. A similar rule applies to individuals - in the event of death, recognition of incapacity or missing person or representative.

Let's sum it up

Limitation of gifting implies the possibility of transferring property free of charge, but not everyone can act as a donee. If you do not take this restriction into account, the transaction will still be canceled in the future.

Property received as a gift must be re-registered to the new owner in Rosreestr. Such property is also subject to tax - state duty and personal income tax are paid in the amount of 13% of the estimated value of the gift object

Is it possible to donate an apartment purchased with a mortgage?

This is the most common question among borrowers, because...
For the transaction, the mortgage agreement and legislation establish restrictions - you will need consent to transfer the debt from the lender. Until the debt is fully repaid, the apartment is pledged to the bank, so all transactions must be agreed upon. It is important that the new borrower (donor) meets the requirements established by the bank: has an official job and a sufficient level of income, as well as a good credit history. But the bank has the right to refuse without explanation.

The transfer of mortgaged real estate as a gift is carried out in several ways:

the housing remains with the original borrower, but the debt is transferred to the donor with the consent of the bank;
the property is re-registered to a new debtor, who is assigned debt obligations (he pays the mortgage in full).

If the mortgage agreement states that any transactions with collateral are prohibited, the bank will not give consent.

Which power of attorney to donate an apartment to choose?

Among the well-known types used in practice, the following should be highlighted:

One-time – a document that allows the donor’s representative to conduct a transaction only once. Such a document is most applicable in cases of gratuitous transfer of ownership of real estate through a trustee.
Special – this type of document allows a representative of someone’s interests to repeatedly carry out the same type of operations.
General is a type of document that is actually a “legal permission” to conduct any real estate transactions by trustees.

As for choosing the type of trust document for donating an apartment, it is best to use a one-time power of attorney, which is very convenient for a person who wants to make a valuable gift and will allow you not to be distracted from important matters.

Lawyer's answers to popular questions

Can I donate an apartment, specifying as a restriction a ban on further sale to the recipient?

No, conditional donation is prohibited. Having become the owner, the donee has the right to dispose of the gift at his own discretion.

Is it possible to donate a house without donating a plot of land?

No, there is also a restriction: any real estate is donated only along with the land on which it is built.

I drew up a deed of gift for an apartment acquired jointly during marriage, and my husband signed the consent only a month later. Now he is going to challenge everything. Whose side will the court take?

Here everything depends on the specific circumstances, but with a high degree of probability the plaintiff will win the case, because consent is formalized before the deed of gift is drawn up, and not after.

I own a share in the authorized capital of an LLC, and I plan to give it to my son. Do you need the consent of the other founders?

Yes, consent will be required if this is provided for in the organization's charter.

Is it possible to donate a car if the bailiffs have imposed a ban on registration actions?

Theoretically, registration of a deed of gift is possible, but the donee will not be able to register the car until the debt is fully repaid.

What are the differences between donating an apartment with and without a power of attorney?

Considering the process of donating an apartment, both with and without a power of attorney, the procedure remains unchanged, that is, all accompanying documents must be present, everything must be notarized, and the like.

However, in the case of the presence of a document, on the part of the donor, his representative will act, who will legally be able to transfer the apartment free of charge for private use to the person for whom this valuable gift is intended, and there is no need for the personal presence of the donor .

When drawing up a trust document granting the right to donate an apartment to someone on your behalf, it is recommended to indicate exactly to whom exactly you want to give the property, as well as what kind of living space located at a specific address.

Otherwise, if such data is not indicated, the text of the power of attorney with the right to donate the apartment will be null and void and, therefore, invalid.

Kinds

A representative on behalf of the donor has the right:

Submit applications and requests to various authorities to collect papers.
Receive them.
And also sign them in favor of the donor.

Thus, it is possible, having the authority, to collect all the required papers, transfer the rights to own real estate to another person and register the transaction with the Cadastral Chamber.

There are several types of papers :

general;
special;
one-time

The general gives the broadest powers , including the right to conduct other transactions, in addition to the transfer of property as a gift: sale, exchange, lease, and so on.

It provides more opportunities for fraudulent activities. Therefore, if it is necessary to conclude such a document, the powers granted should be defined as precisely as possible. As a rule, notaries and lawyers treat donations under a general power of attorney with caution.

A special and one-time power of attorney provide the authority to perform one specific action. A special one is used if it is necessary to perform several similar operations, and a one-time one is used for one specific action.

To donate living space, it is enough to sign a one-time power of attorney.

Sometimes the question arises whether someone who receives a gift of real estate can be the owner's representative. Is it possible to use this paper to give an apartment to yourself?

This is impossible, since according to Article 182 of the Civil Code of the Russian Federation, a trusted person does not have the right to make transactions in relation to himself . Otherwise, it would turn out that the same person signs the contract for two parties.

Read about the specifics of registering the donation of an apartment at the MFC or through Rosreestr on our website.

Procedure and rules for drawing up a permit

In order for an authorized person to be able to legally represent the interests of the donor, it is important to competently approach the issue of document execution.

Place of appeal

Based on Article 185.1, paragraph 1 of the Civil Code of the Russian Federation, a power of attorney for the execution of a property donation agreement must necessarily be notarized.

Accordingly, the donor and representative must appear at the notary’s office to draw up and sign the document.

An agreement not certified by a notary is considered invalid and prohibits a third party from representing the interests of the property owner.

Required papers

To draw up a power of attorney to donate an apartment, the donor must provide the following package of documents to the notary office:

Property owner's passport.
Passport of the owner's representative.
Passport details of the citizen to whom ownership of the apartment is transferred.
Documents confirming the owner's right to the property (certificate of ownership, extract from the Unified State Register of Real Estate).

Form and content

The form of power of attorney to represent the rights of the donor is standard and contains the following points:

Document's name.
The city where the document is drawn up and the date of its preparation.
Personal and passport details of the apartment donor.
Details of the property owner's representative.
Data of the recipient.
Information about the property being transferred, including data confirming the owner’s ownership of the property.
List of powers vested in the representative in accordance with this document.
Possibility of transferring powers to third parties.
Duration of the agreement.
Date and signature of the donor.
Data and seal of the notary office, signature of the notary, as well as the document number in the register.

The document must be drawn up on official letterhead, and data about it must be included in the register of notarial acts.

Contents of the agreement on the right to conduct a transaction

When drawing up the document, it is necessary to fill out all the sections listed above in as much detail as possible. For example:

The title of the document must include: “Power of Attorney for donation of an apartment.”
The city and date of compilation are indicated in the column. For example, “Moscow, Russian Federation, March twenty-first, two thousand and nineteen.”
In the authority column it is necessary to indicate all the actions that the representative can perform. For example, “I authorize you to donate an apartment that belongs to me, located at the address ..., to sign a donation agreement on my behalf and register it with the authorities that carry out state registration of rights to real estate.”
In the document's validity period column, you must indicate: “The power of attorney was issued without the right of subrogation for a period of 1 year.”

All numbers in the document are subject to text duplication.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

Cost and terms

Executing a power of attorney to donate an apartment, provided that all the nuances of the procedure are followed and all documents are provided, will take no more than one hour, depending on the queue to the notary.

As for the cost of registration, the final amount consists of two components: the cost of work and the notary fee.

If the notary fee is established by the legislation of the Russian Federation and amounts to 200 rubles (Article 22.1 “Fundamentals of the legislation of the Russian Federation on notaries”), then the cost of notary services varies depending on various conditions (region of the transaction, the number of specified persons, etc.).

Also, the final cost of registration is affected by calling a notary to your home or, for example, to a medical institution. Accordingly, the exact cost can be clarified directly at the notary office where the document is planned to be executed.