Transferring a share in an apartment to a relative - procedure

Donating a share is perhaps the easiest way to transfer part of a residential property to a relative or any other person. The main advantage is that you usually don’t need to ask anyone for permission, and the recipient receives rights to square meters only for signing the contract. Read about these and other subtleties of giving in our material.

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.

Donating a share of an apartment without a notary

Also, without a notary, it is impossible to give a share to a spouse from jointly acquired property (acquired during marriage), but registered in the name of one of the spouses. Such a transaction is recognized as a division of jointly acquired property and is subject to mandatory certification by a notary (Article 38 of the Family Code of the Russian Federation). If a spouse gives away real estate or a share in the right to it, which he received by inheritance or gift, such a transaction can be formalized in simple written form (i.e. without a notary).

Without a notary, you can donate (alienate) shares from:

1. sole ownership

2. shared ownership with simultaneous participation in the transaction of donating a share by all “shareholders”

3. joint property of spouses. subject to the preservation of the legal regime of ownership (joint ownership) for the remaining share in the right

4. joint property (which is not joint property of the spouses, because it was received as a result of a gratuitous transaction)

To better understand the situation under different conditions of transactions for donating a share in property rights, I made a table.

All possible terms of the transaction for donating a share in the ownership of an apartment without a notary are placed in the table:

The most common way to transfer property to another person is to sign a purchase and sale agreement with preliminary approval of the transaction with the remaining owners. The presence of a relationship with the buyer will not affect the algorithm of actions in any way. When deciding on this option of transferring property, it is necessary to remember that the transaction is considered compensated; the seller must receive some remuneration comparable to the market value of the share.

The procedure consists of several stages. Strict compliance with the requirements of the Civil Code of the Russian Federation will allow you to avoid challenging the transaction and refusing to register the transfer of rights to a relative.

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.

Preferred option for decorating an apartment by spouses

If spouses are not satisfied with joint ownership of an apartment, they can enter into a prenuptial agreement or an agreement on the division of property. Any conditions are acceptable in these documents:

• establishment of separate ownership of certain types of property;
• recognizing it as a common share in equal or other shares;
• definition of common joint property.

Of course, the best tool that can prevent most problems with registration and division of property is a marriage contract. Its positions can be changed taking into account the situation in the family. After all, it is impossible to predict in advance whether it will be profitable to have an apartment in shared or joint ownership. Both options require additional approvals from the spouse in case of alienation of property.

Read more about how it is better for spouses to register ownership of an apartment.

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.

Donation as the best option for resolving disputes

From the above, it becomes clear that donation is considered the most painless, safe transaction. To do this you need to go through just a few steps:

• collect the necessary documents;
• order a gift agreement transaction;
• register with the MFC or the Registration Chamber.

For the transaction it is necessary to prepare the following package of documents:

• passports and copies of persons participating in the transaction;
• consent of the seller’s spouse to sell the share;
• consent of other shareholders if the share is sold to an outsider;
• certificate of ownership.

It is safest to register a donation with a notary. In this case, the notary acts as a guarantor that the donated part of the real estate will not be disputed.

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.

Grounds for the emergence of shared ownership

Property that belongs to several citizens is called common in accordance with. It, in turn, is divided into two types:

• joint. Shares in property are not determined. This applies to marital material relations;
• share Property in which separate and not necessarily equal shares are defined.

Shared ownership arises in the following cases:

1. Acquisition of real estate in shares registered for two or more people.
2. Privatization, when several citizens have the right to it. In this situation, shared ownership of the apartment is formed in equal parts.
3. The division of property between husband and wife or the allocation of a share of a joint property during marriage or after its dissolution.
4. Receiving part of the property through inheritance, when the inheritance is distributed among several people.

Find out more about when common ownership of an apartment is established.

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 dispose of a share: gift or purchase and sale

Relations between owners of shared real estate are regulated by law on the basis of established norms. All share owners have the right to dispose of their share as they see fit. Disposal of the common share can only occur by agreement of the parties. If it is not possible to reach an agreement, the dispute is resolved in court.

When becoming the owner of shared ownership, it is worth remembering:

• each case is considered individually;
• it is not always possible to reach a peace agreement;
• a positive outcome in a dispute depends on many factors.

Many participants in such processes often tell me that it is impossible to peacefully decide what belongs to whom. There is a share, and here it is impossible to resolve the dispute about allocating it in kind. That is, one is satisfied with this room, while the other is categorically not suitable for the proposed part. One client told me that it would be better if they sold it and divided the money. But this is not so easy to solve. Especially if the share is allocated in unequal parts, the funds cannot divide correctly.

Misunderstanding, ignorance of the laws, or, as they say now, legal illiteracy, lead to the fact that close relatives become enemies and can only resolve disputes in court.

You can sell your share, but there are too many pitfalls here. The owners of other shares have advantages and can be sold only after they officially refuse to acquire the alienated share. If all shareholders agree to the sale, only then can it be sold. This is not an oral agreement, but a notarized transaction confirming the refusal of the shareholders to purchase the alienated share.

Important! If there are several shareholders and one of the shareholders wants to purchase the share being sold, then the consent of the others is not required.

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.

A trip to Rosreestr

So, the documents have been collected, the contract has been certified by a notary, what to do next? Now is the time to go to the authorized body, which will register the transaction. Recently, the requirements for this action have changed; the buyer does not need to drag the seller with him. In other words, the buyer can go to Rosreestr alone, and send the seller home to vacate the future property (corner or room).

To Rosreestr, again, you will need to go through a bank or some kind of terminal. There you will have to pay a mandatory state fee - 2000 rubles. Without this payment, the procedure for registering property rights will be suspended, and the buyer will not be able to dispose of the acquired share, since he will not yet become the full owner.

Registration

Documents, as required by Article 131 of the Civil Code of the Russian Federation, are submitted at the place of residence to the divisions of the Registration Chamber or the Cadastral Chamber. Registration can also be done through the MFC.

In the presence of an employee of the registration authority, both participants seal the agreement with their signatures.

It will be necessary to pay a state fee of two thousand rubles - this will have to be done by the recipient of the property.

It should also be taken into account that each case is individual and, in addition to the standard package of documents, the registration authority may require additional certificates .

The maximum period for registering a deed of gift is ten days . After this, the recipient of the apartment can register at a new place of residence, and the previous owner can be deregistered, if there was an agreement.

Is it possible to give housing to a stranger?

As mentioned above, it is quite possible to transfer housing to a stranger under a gift agreement if this does not violate the rights and legitimate interests of other persons who own the apartment.

It is also not prohibited to transfer part of your share to a stranger (not a relative). This will not affect the size of the other owners' property in any way. Only the donor's real estate will decrease.

The Law clearly limits the circle of persons (not relatives) who are prohibited from receiving expensive gifts, including housing:

• civil servants;
• medical and social workers (from the persons to whom they provide services).

Since donation implies no benefit for the donor, there is no need to request permission from other homeowners.

Example. After the apartment was privatized in equal shares, the Petrovs decided to divorce. Petrov moved out of the shared apartment, and decided to give his share to N.L. Smirnova. - daughters from her first marriage. He drew up a deed of gift and his daughter received a certificate of ownership. Petrova filed a lawsuit to invalidate the gift agreement, citing the fact that she is the owner of the second half of the apartment and it is she who has the right to priority receiving the share of her ex-spouse. The judge rejected the claim, and five years later Smirnova sold her share to Petrova.

Design methods

In legal terms, a donation is nothing more than the transfer of some thing into the ownership of the recipient, either property rights, or release from property obligations to the giver himself, or to a third party.

A citizen can register a deed of gift:

• on one's own;
• through a notary.

Next, the deed of gift (more precisely, the deed of gift) undergoes state registration with the Federal Registration Service and comes into force (how to register a deed of gift through the MFC?).

What should I do?

What specific steps need to be taken in the cases under consideration? Suppose you decide to allocate your share. If there is an agreement between the participants regarding the distribution of shares, then they can draw up an appropriate agreement.

1. To do this, an agreement is drawn up at the notary’s office on a special form or in writing, where the share of each participant is indicated.
2. Next, all owners sign an agreement.
3. The notary checks the documents of all participants, the right to property, and confirms the legality of this document.
4. The certified agreement is registered in the Russian Register.

If one of the owners needs a document indicating the share, he can contact the Unified State Register for an extract.

If other owners refuse to draw up an agreement, you will have to file a claim in court. Since there are direct legal grounds for this, the court will divide the common property at its discretion and allocate a share to each participant.

If there is a need to transfer a share of housing. Draw up a gift deed at a notary office. For the drawn up contract, it is necessary to prepare a package of documents with copies in 2 copies:

1. Certificate of ownership. Or an extract from the Unified State Register.
2. Passports of the donor and recipient.
3. Extract from the house register.
4. Cadastral documents.
5. Consent to the transaction of the guardianship authorities, if a minor is involved in it.
6. Consent of the donor's spouse.
7. If the transaction is concluded between relatives, you must provide documentary evidence of the relationship in order to avoid paying tax.

Having verified the legality of the documentation and the transaction, the notary certifies it. Afterwards, the gift agreement is submitted to the Russian Register for registration. From this moment on, the distribution of shares will be changed.

You can draw up an agreement without a notary, directly in the Rosreestr.

If you need to sue for your share. To file a claim you must do the following:

1. Draw up a statement of claim . The court makes decisions based on the provisions of the law, so it is necessary to provide references to laws and articles that will justify the requirements.
2. Attach to the claim documents confirming the circumstances specified in the claim.
3. Attach copies of your passport, certificate of ownership, technical documents for the apartment.
4. Pay the state fee , which in property cases is a certain percentage of the claim price.

The court will schedule a hearing at which the case will be heard. The court decision will be handed over to the applicant within 10 days . If the decision is positive, it will become the basis for registering new property rights in the Russian Register.

Now you know how to sue for your share.

What cannot be written in the terms of the deed of gift?

If you want to conclude a gift agreement, then mention monetary compensation, or any other services and items that can be identified as a transfer of payment. It is important to remember that a donation can only be gratuitous, therefore in all other situations the transaction is considered void.

In this case, you can include conditions for the use of shares. For example, the donor may indicate that he will live in the gifted share for the rest of his life.

It is strictly forbidden to include in the terms of the contract the obligation to perform any service or any other condition in return for the donee when the donor promises to donate real estate in the future. If the gift is to take place after the death of the donor, then a will must be drawn up. It is prohibited to include in a gift agreement a condition on the lifelong maintenance of the donor after the alienation of his share - the civil code provides for a separate agreement for this.