Preliminary agreement for donating a share of an apartment to a minor

​​​A preliminary agreement for donating a share of an apartment allows you to document the promise of the property owner to donate its part to a third party in the future.

In the article we will tell you how to conclude such an agreement, what information must be contained in it, and what are the features of concluding such an agreement with a minor child.

• What is a preliminary gift agreement?
• Mandatory terms of the contract
• How to correctly draw up a preliminary agreement for the donation of a share of an apartment
• Grounds for cancellation of the contract
• Important Features

What is a preliminary gift agreement?

The law contains the concept of “Preliminary Agreement”. Such agreements are concluded with the aim of preventing negative consequences in the future. The document serves as a kind of guarantee for the execution of the main document. If one of the parties refuses to enter into an agreement, the other has the right to file a lawsuit to compel the execution of the action.

However, this rule is practically not applied to gift agreements. In this case, we are talking about a draft agreement that the parties will sign in the future. The initiator of the transaction is usually the donor. That is, the owner of the alienated property. The donor must notify the recipient of the upcoming transaction. If he is a young child, then the donor notifies the child’s legal representatives of his intention. Naturally, they need time to think about the proposal.

The draft gift agreement allows you to get a general idea of ​​the alienated property, evaluate the terms of the transaction and upcoming expenses.

Mandatory terms of the contract

When developing a draft gift agreement, the following requirements must be taken into account:

1. Written form of the document. Oral agreements regarding the property are considered invalid.
2. Availability of title documents. The donor has the right to dispose only of personal property. Ownership of the alienated object must be confirmed by relevant papers. If the property is jointly owned by citizens, then the written consent of the co-owner is required.
3. Beneficiary participation. The interests of young children are represented by legal representatives. They submit an application, sign documents, register property rights, and pay taxes. Children over 14 years of age become full participants in transactions. The only limitation is the written consent of parents/guardians. That is, children participate in discussing the terms of the gift agreement and sign it at the notary. Children can make their own decisions only after reaching adulthood.
4. Notarization of the contract. If the testator alienates part of the apartment to a young child, then the participation of a notary is inevitable.
5. Registration of property rights. After registering a gift agreement with a notary, the beneficiary will have to contact Rosreestr. The recipient's right of ownership arises only after entering data into the state register. The supporting document is an extract from the Unified State Register. However, the beneficiary will be able to dispose of the property only after 18 years of age. Until that time, the child's legal representatives are the administrators.

Additionally, the gift agreement may contain a suspensive condition. For example, the beneficiary receiving higher education.

Can a legal representative act as a donor? Yes, if the child lives in a complete family. If the gifted subject is raised only by his father or mother, then the participation of the guardianship authority will be required.

The owner of the apartment does not have the right to simultaneously be the donor and the legal representative of a minor child.

Who can act as a donor

Donors can be individuals and legal entities. The donor must:

1. have a proprietary right to the thing transferred under the contract;
2. be legally competent and of legal age;
3. obtain consent for donation from certain persons in the following cases:

• a legal entity that owns a thing under a limited property right must obtain the consent of its owner (clause 1 of Article 576 of the Civil Code);
• a spouse who wishes to donate property that is the common property of the spouses must obtain consent from the other spouse (clause 2 of Article 576 of the Civil Code);
• minors aged 6 to 14 years must obtain consent to give small gifts from their legal representatives (clause 1 of Article 575 of the Civil Code);
• minors aged 14 to 18 years must obtain written consent from their parents or guardians (this provision does not apply to small gifts - clause 2 of article 26, clause 2 of article 28 of the Civil Code).

How to correctly draw up a preliminary agreement for the donation of a share of an apartment

The draft agreement can be found on the Internet or obtained from any notary. If the donor wants to supplement the form, then he will have to contact a lawyer. The specialist will listen to the wishes of the owner of the alienated object and include them in the document. A lawyer will tell you how to donate a share in an apartment to a minor child without breaking the law.

Form

The donation agreement must contain the following clauses:

1. Title of the document.
2. The date of the agreement.
3. The city in which the transaction is made.
4. Personal information of the parties to the transaction.
5. Rights/responsibilities of the donor.
6. Rights/responsibilities of the beneficiary.
7. Description of the alienated part of the apartment.
8. Footnote to the title document.
9. Reference to the absence of encumbrances.
10. Clause about the payer of the state duty when registering a transaction.
11. Mention of state registration of the transaction.
12. Link to the number of copies of the contract.
13. Signatures of the parties to the transaction.

The parties to the contract display additional provisions at their own discretion. This may include the procedure for transferring part of the apartment or using common property.

Content

When developing a draft agreement, the actual circumstances of the case must be taken into account. If there is a ready-made form, the parties only need to fill out the relevant sections.

Initially, the title of the document is indicated. Then the city and date of the contract. For example, the city of Naberezhnye Chelny in the Republic of Tatarstan, August twenty-ninth two thousand and eighteen.

The next section is devoted to the parties to the agreement (full name, residential address, passport details). Here is a link to concluding a gift agreement.

The fact of transferring part of the apartment into the ownership of the recipient is described below. The donor must indicate the size of the share of the alienated property and the address of its location.

The next paragraph contains a link to the title document. For example, the specified share belongs to the donor on the basis of a certificate of the right to inheritance under a will. The date of issue of the document, the body for registering property rights and the number of the certificate issued by Rosreestr are also indicated here.

Below is the will of the beneficiary. For example, the recipient accepts 1/20 of an apartment as a gift from the donor.

The next section is devoted to guarantees on the part of the donor. The property owner must confirm that the premises have not been sold or donated to third parties, and are not under mortgage or other encumbrance.

The procedure for the emergence of ownership of alienated property is described below. The beneficiary will have to contact the territorial office of Rosreestr.

The next paragraph contains a link to payment of costs associated with registering a transaction. Usually the costs are borne by the beneficiary.

The penultimate section may be devoted to a reminder of the invalidity of any other agreements or obligations that arose before the signing of the gift agreement.

At the end, you must refer to the number of copies of the contract. Below the text, the parties to the transaction put their signatures. You also need to leave space for the notary inscription.

Sample preliminary agreement for donating a share of an apartment to a minor

Below is a standard form for a gift agreement:

Advantages and disadvantages

In terms of registration and the future fate of real estate, we can highlight the following advantages and disadvantages of an agreement to donate a share of an apartment to children.

The donation also has other legal consequences. They can be viewed from different perspectives. In one case this will be an advantage, and in another - a disadvantage. The list of nuances that must be taken into account when re-registering shares is as follows:

1. The share becomes the property of the child. This means that it is the child who is the owner of part of the property, and not his parents, although the latter temporarily act on his behalf. After reaching adulthood, the child will have the right to independently decide what to do with the housing - sell, donate, bequeath at his own discretion. In this case, the donor will not be able to impose his opinion.
2. It will be problematic to transfer the share as collateral (for example, against a loan) until the child reaches adulthood.
3. Donation does not replace the right to participate in the sale of maternity capital. In other words, if a child is given a share in an apartment, he will still participate in the distribution of living space purchased with maternity capital.
4. The terms of the donation cannot be specified in the contract. For example, that property passes to the grandson only if the grandmother receives the right to permanent residence in the apartment.
5. It is also prohibited to establish compensation for housing in any form - cash, goods or services. The contract will be cancelled.

Where can I make up, where to apply

The draft gift agreement can be found on the Internet or downloaded from our website. Of course, the standard template may differ slightly from the actual circumstances of the case. For example, the donor has the right to include in the contract a condition that the recipient receives a higher education or to bear the costs of completing the certificate. The document will have to be adjusted accordingly. If you have a legal education or experience working with documents, you can make changes to the agreement yourself.

You can also obtain a draft gift agreement from a notary. If necessary, he can make the necessary edits to the document. However, such actions are usually performed when concluding a gift agreement. If the parties do not intend to immediately certify the transaction, then this option will not suit them.

Additionally, participants in a future transaction can contact a practicing lawyer. Legal services are provided on a fee basis. However, the agreed draft agreement can subsequently be used by a notary.

Notarization of the donation agreement for a share of an apartment is carried out at the location of the property.

Documentation

The parties to the agreement must prepare:

• passports (of the donor and the child’s representative);
• birth certificate of the recipient;
• documents for property (extract from the Unified State Register, purchase and sale agreement);
• a certificate issued at the place of registration of the donor;
• evidence of absence of debts to utility companies;
• consent of the co-owners to the alienation of joint property.

If the child has reached the age of 14, then he signs the gift agreement independently. Therefore, the written consent of the legal representative will be required.

At the stage of concluding a donation agreement and notarizing it, you will additionally need a receipt for payment of the state duty.

Cost, expenses

When developing and agreeing on a draft gift agreement, the parties do not bear any costs. Maximum for copies of documents required by the notary.

When notarizing the transaction, 0.5% of the cost of part of the apartment is withheld. The minimum state duty is 300 rubles. The maximum tax amount should not exceed 20 thousand rubles.

Notary services are subject to separate payment. On average, citizens will have to pay 5 thousand rubles. Details can be obtained from the notary office.

Additional costs arise during state registration of property rights. Citizens pay 2 thousand rubles for entering data into the Unified State Register about the new owner of the apartment. If ownership is registered in relation to part of an apartment in an apartment building, then the tax rate is 200 rubles.

Income tax is withheld from citizens who are not relatives of the donor. The tax rate is 13%. It must be paid by April 30 of the following year. At the same time, taxpayers must submit a tax return to the Federal Tax Service. If the payer is not a resident of the Russian Federation, then the tax amount increases to 30%.

Taxation and payment of state duties

Significant and obligatory when drawing up and registering a deed of gift for a share, no matter whether it is an equal division of property or the entire object of the gift, is the payment of tax, as well as state duty. As for taxation, for persons who are close relatives (children, grandchildren, parents, grandparents), there is a complete exemption

But if the property is donated to a third party, income tax of 13% must be paid without fail. But this payment amount applies only to residents of the Russian Federation; for non-residents, the tax amount is equal to 30%.

The tax must be paid by June 15 of the year following the date of conclusion of the gift transaction, and a declaration must be submitted to the tax office by April 30, the same year following the signing of the agreement to transfer the gift.

State duty is one of the mandatory conditions when preparing or registering any documentation, including a gift agreement. Therefore, before compiling it, you need to know its cost.

Documents requiring payment of state duty

Registration of ownership

Property transactions are subject to state registration. Rosreestr handles the re-registration and initial registration of property rights. Papers are submitted to any territorial office or MFC. Data is entered into the state register of rights at the request of the copyright holder. Sample documents are posted on the Rosreestr website. Additionally you will need to prepare:

• gift agreement;
• documents for the premises;
• identification card of the child's representative;
• beneficiary's birth certificate;
• confirmation of tax payment.

An application to Rosreestr is submitted by a representative of the recipient entity. After 14 years of age, children submit documents independently. However, the written consent of the legal representative will be required.

The procedure for registering property rights takes from 5 to 12 days . Usually an extract from the Unified State Register is issued within a week. After receiving it, the minor child becomes the owner of the premises.

Taxes

The Tax Code stipulates that when receiving property as a gift, the beneficiary undertakes to pay a tax of 13%.
This requirement applies to cases where the parties to the transaction are distant relatives or are not related. Recipients of a gift are exempt from paying tax if the parties are close relatives of each other (Clause 18.1, Article 217 of the Tax Code of the Russian Federation). Parents can transfer property without paying tax to their children, grandparents to their grandchildren, as well as brothers and sisters to each other. The uncle and aunt are distant relatives in relation to the nephews and in this case the tax is payable.

On behalf of a minor, a tax return is submitted by his legal representatives within the time limits established by law (from January 1 to May 1 of the year following the year in which the property was received). For violation of deadlines, a penalty of 1000 rubles and 5% of the tax amount for each month is provided. In addition, there are penalties for failure to pay taxes on time.