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?
Under a preliminary gift agreement, the parties undertake in the future to enter into a main gift agreement on the terms provided for in the preliminary agreement (Clause 1, Article 429 of the Civil Code of the Russian Federation). Such an agreement is a kind of guarantee that the potential donor, after a certain time, will fulfill his obligations and transfer certain property to the donee - in our case, a share in the apartment.
The need to conclude such an agreement may arise if:
- at the moment when the need arose to draw up a deed of gift, the donor does not have documents for the apartment - for example, it is at the construction stage (in this case, the document of title will be DDU - equity participation agreement);
- the apartment is the subject of collateral - for example, such an agreement can be concluded by parents who have not yet paid the bank for the mortgaged apartment
Taxation on gifts to children
Receiving real estate or vehicles as a gift presupposes the receipt of income. The amount of the indicated income, according to Art. 40 of the Tax Code (TC) of the Russian Federation, should be calculated from the market value of the transferred property (the cost of a similar item with identical properties), which is taken into account when calculating income tax. Its size is established by Art. 224 Tax Code, and is 13% of the above cost. Please note that only donations of real estate and vehicles are subject to income tax .
Donations in favor of minors and children are no exception - they are also subject to taxation . However, if in an ordinary gift the tax is paid by the donee personally, then in the case of a gift to a minor such obligation, in accordance with clause 3 of Art. 28 of the Civil Code, vested in his legal representative.
The obligation to pay income tax is imposed on a minor only if he personally participated in a taxable transaction with the consent of his parents. In all other cases, it is paid by the parents .
Important
At the same time, if a gift to a child was made by parents or grandparents, it is not subject to taxation , since such a subject composition, according to Art. 14 SK, are close relatives . Based on clause 18.1 of Art. 217 of the Tax Code, such relatives, when making a gift between them, are exempt from taxation .
In addition to income tax, real estate received as a gift by a child is also subject to property tax (Article 401 of the Tax Code), the amount of which, according to Art. 406 Tax Code, ranges from 0.1 to 2% of the cost . Payment of this tax is carried out similarly to the rules for payment of personal income tax by a child.
Mandatory terms of the contract
A preliminary gift agreement is almost as important a document as the deed of gift itself, so it must contain all the information that allows you to identify the property that will subsequently be donated:
- description of the apartment: its exact address, floor, cadastral number, total area;
- information about the share that will subsequently pass to the donee: its exact area and the basis on which it belongs to the future donor (donation agreement, purchase and sale agreement, certificate of inheritance, etc.).
A preliminary gift agreement can only be concluded if the potential donor has title documents for the property. No documents - no future donation.
In addition, the document must indicate:
- details of its parties - the future donor and donee (full name, date and place of birth, residential address, passport details of the donor and the child’s representative, and for the child himself - details of the birth certificate);
- date and place of drawing up the contract;
- obligation of the parties to conclude a deed of gift for a share in the apartment in the future;
- terms of the transaction;
- a list of obligations assumed by the parties;
- the effective date of the agreement.
Gift deed from the point of view of the law in 2021
So, our regular Readers know that a gift in jurisprudence is usually called the gratuitous transfer of ownership and property closely related to it from the donor to the donee or the release of the latter from certain property obligations in relation to the donor.
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At the same time, according to the current legislation of the Russian Federation, the transaction is completed at the time the parties sign the gift agreement, unless another start date for its validity is specified in the contents of the deed of gift.
One of the mandatory and fundamental factors that distinguishes this type of alienation of property from others is the gratuitous nature of the transaction, which excludes the presence of any counter-obligations of the donee in relation to the opposite party. However, this nature does not at all mean that the conclusion of the transaction is groundless, because each of the parties, one way or another, pursues its own goals and is driven by its own motives, which go beyond the scope of the gift itself.
Lawyer's Note
Thus, being primarily a contract, when donating, one party must express a desire to donate the object, and the other must accept it. If one of these rules is violated, the gift agreement will be considered false and will not have legal force.
It is worth noting that, although the will of the donor to make a gift to a certain person is considered one of the main aspects of giving, the desire to make a gift itself cannot be the basis for lawyers to consider such a transaction a gift. So that this does not violate the law, the donor’s desire to give a gift to another person should not contain the desire to receive any benefits in return (money, services, etc.). all this applies to the consensual deed of gift.
Simply put, the parties must understand that the release from property obligations or the gratuitous transfer of the donor’s property must be formalized in the form established by law, including the donor’s will to complete the underlying transaction in the future.
By transferring ownership of movable or immovable property, the donating party thereby increases the property of the donee and these signs, although they do not have their own meaning in the context of the transaction, arise from the nature of the transaction.
In 2021, not only individuals, but also legal entities and other subjects of civil law can still act as donors and recipients. However, according to current legislation, some of the subjects may be limited in this right. For example, only capable and legally capable citizens can act as a party to a gift transaction.
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How to correctly draw up a preliminary agreement for the donation of a share of an apartment
You can draw up a preliminary gift agreement:
- independently - you will have to study the current legislation, the requirements for drawing up draft agreements, and, finally, familiarize yourself with the sample of such a document provided on our website;
- from a professional lawyer - you will describe your situation to him and provide the available documents, and he, for a fee, will draw up the necessary document;
- from a notary - he has the right not only to certify ready-made contracts, but also to draw them up “from scratch” - you will have to pay for the provision of the service (it is called a service of a technical-legal nature).
When drawing up a document, it is important to remember that a preliminary gift agreement is not a deed of gift in the usual sense. The features of such an agreement are as follows:
- the subject of a regular gift agreement is the property being donated; preliminary agreement – the obligation of the parties to conclude a gift agreement in the future;
- it must indicate the period during which the main agreement will be concluded; if there is no such indication, the agreement must be concluded within a year from the date of execution of the preliminary agreement (clause 4 of article 429 of the Civil Code of the Russian Federation);
- If the deadline for concluding the main agreement is not met, the obligations assumed by the parties are canceled (Clause 6, Article 429 of the Civil Code of the Russian Federation).
Preliminary agreement for donating a share of an apartment to a minor (sample)
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
When concluding this agreement, the question of taxation is not raised, due to the fact that it formalizes relations that are to occur in the future, therefore, all issues of tax payment must be resolved when concluding the main agreement.
In the event that a tax payment was made by mistake, the amount paid can be returned by submitting an application to the territorial tax office, which must make a transfer within 30 days to the account specified in the application.
Grounds for cancellation of the contract
A preliminary donation agreement may be canceled if there are grounds for which the transaction is considered void:
- one of the parties to the contract was an incapacitated person;
- the contract lacked an essential condition - a description of its subject (the obligation to donate a share in the apartment in the future);
- the deal was a sham – i.e. in fact, it was aimed at replacing the usual purchase and sale agreement with a donation;
- the requirement for the form of the document was violated - for example, the preliminary agreement on the donation was concluded orally.
Voiding
When drawing up any deed of gift, including a preliminary one, be careful: it is easy to make a mistake in such a document. And then the transaction will be declared void, that is, it will not have legal force. To prevent this from happening, take the following points into account:
- Document preparation form. If executed incorrectly, the entire deal may be ruined. To prevent this from happening, follow the instructions and sample given in the article.
- Insolvency of one of the parties. In judicial practice, there are cases, for example, when a gift agreement drawn up by an incapacitated elderly person has to be declared invalid.
- Inaccuracy in the description of the future contract: for example, the subject of the donation or the conditions of receipt are not described accurately enough.
- Questionable legality: by creating insufficiently transparent conditions for concluding a transaction, you call into question its fairness. They often try to hide other agreements under a deed of gift, and it is better to make sure that the transaction does not appear to be one of those.
Arbitrage practice
The practice of declaring pre-contracts void or terminating is small, but it is worth considering one example when the request to annul a transaction was satisfied by the court:
The woman drew up a pre-contract with the donee to draw up a deed of gift for the land plot. According to the terms of the deal, the main DD must be completed within six months. Until this moment, the recipient arrived at the site and realized that it was impossible to carry out construction on it: high-voltage wires were installed in a place suitable for building a house, and there was no possibility of conducting engineering communications.
Before drawing up the pre-contract, the donor assured that it was possible to build on the land without any problems. The recipient contacted the gas and electricity service, where she was given a certificate prohibiting construction on the donated site.
The recipient approached the donor with a written proposal to terminate the pre-contract, indicating the reasons. There was no response within 30 days, and then the woman went to court, presenting evidence. The claims were satisfied.
Important Features
In accordance with paragraph 2 of Art. 429 of the Civil Code of the Russian Federation, the preliminary agreement must be drawn up in the same form as the main agreement, the conclusion of which it precedes - this means that the preliminary agreement for donating a share of the apartment to a minor for guardianship must be drawn up in writing. There is no need to register the agreement with Rosreestr - only the fact of transfer of ownership of a share in the apartment from the donor to the donee is subject to state registration (clause 1 of Article 131 of the Civil Code of the Russian Federation).
But the services of a notary may be required - notarization of a donation agreement for a share in an apartment is not required only if it has only one owner who wants to donate part of the property he owns (this position, based on an analysis of current legislation, is adhered to by Rosreestr). If you want to donate a share in a property that has several other owners, you will have to pay for the notary’s work.
In the event that a child who has reached the age of 14 acts as a potential recipient, he/she signs the contract independently . If the child is not yet 14 years old, his legal representative - a parent or guardian - must act on his behalf. If there is only one parent, and he also acts as a donor, he can sign the agreement on behalf of both parties - according to the Federal Notary Chamber (see Letter “On Donation ...” dated June 21, 2017 No. 2664/06-08), legislation this does not contradict.
Lawyer's answers to popular questions
If I want to terminate the pre-contract, but do not try to resolve this issue with the recipient, what will happen?
We need to try to come to an agreement with the other party. If ignored, the recipient will be able to go to court with a demand for forced registration of a DD.
Is it necessary to enter into a preliminary agreement?
No, the pre-contract is drawn up at the discretion of the parties.
What to do if the donor refuses to formalize the deed of gift, but there is a pre-contract?
Go to court. If the requirements are satisfied, the donor will be required to issue a mandatory DD.
I need to draw up a pre-contract in one city, but I am in another. What to do?
You can draw up a power of attorney for a specific person who will represent your interests. It cannot be issued to the recipient - he is an interested party.
Can a court recognize a pre-contract as a contract of promise of gift?
Yes, it can, if the subject is the transfer of ownership from a specific date, and not the intention to issue a deed of gift.
