When donating, there is no expectation of material benefit for the giver, otherwise the very essence of such an agreement is violated. Like any real estate transaction, a deed of gift involves a number of nuances that are legally important.
One of these nuances is the consent of the husband or wife of the property owner to complete the transaction. We will talk about when it is required, why and what it affects in this article.
Read about the procedure for donating an apartment and how best to write a gift agreement on our website. Find out also how to issue a power of attorney to donate housing.
Options for the legal regime of spouses' property
Family relationships directly affect the property rights and responsibilities of spouses. As a general rule, any property assets acquired by citizens during marriage become their joint property.
Joint ownership of property, including residential real estate, is characterized by the following features:
- paid and gratuitous disposal of real estate can only be carried out by common consent and decision of both partners;
- The division of the apartment and the allocation of separate shares for each of the owners can be carried out at the request of any partner.
To change the standard rule on joint ownership, citizens must include this condition in the contracts under which they acquire property assets.
In addition to joint ownership, real estate may belong to partners in other forms of ownership provided for by civil and family law:
- shared form - each of the owners owns a certain share in the common law, the amount of which is established by mutual agreement of the parties;
- personal form - housing that belonged to the newlyweds during the period of marriage, as well as apartments that the spouses received during the marriage through gratuitous transactions (donation, inheritance, privatization agreement);
- separate form - established as a result of a change in the joint form of ownership by concluding a mutual agreement or a marriage contract.
Each of these forms of ownership is characterized by different features of donation, which will affect the obligation of the parties to formalize consent to carry out this gratuitous transaction.
Donation of real estate between spouses
There are cases when an apartment donation agreement is concluded between a husband and wife. In this case, the property rights of the other party must not be violated. With this type of transaction, a violation of rights is not recorded.
The second party confirms its decision to allow the alienation of the apartment in its favor to the spouse by signing the agreement. The conclusion of such a transaction serves as a cover for tax evasion or other illegal actions that violate civil or tax law.
If necessary, the contract can provide a separate clause regarding the opinion of the other half, if one of the participants in the legal relationship wants to fix this in the document.
Gift of joint property
Any options for disposing of joint real estate require obtaining the consent of the second spouse; this rule also applies to cases of donation of residential premises.
Consent will be required even if the apartment was registered as the property of only the husband or wife, but common family funds were used to purchase it. Registration of the consent of the second spouse takes into account the following features:
- if ownership of an apartment is established simultaneously for both citizens, in order to donate housing they will need to both act as a donor (a power of attorney can be issued to the second spouse);
- if the housing is registered in the name of only one spouse, the second partner will express consent in the form of a written document with mandatory notarization.
In case of joint ownership, donation of an apartment without the consent of the spouse is not allowed; this fact will be verified at the stage of the registration procedure by the Rosreestr authorities.
A similar rule applies if a donation is made of an apartment owned by shared ownership. Without the participation of the second shareholder, the apartment cannot be re-registered to the donee.
How to apply?
The process of obtaining permission to transfer housing as a gift from a spouse is not particularly problematic.
Since this document must be notarized , the easiest way is for the husband and wife to contact a notary office.
There they will prepare and fill out a standard consent form for you, which you only have to sign.
You can find out about the cost of registering a deed of gift for an apartment with a notary, as well as how to register it at the MFC or Rosreestr on our website.
You will need to bring with you a certificate of real estate being donated, the applicant’s passport and a marriage certificate. If available, take your marriage contract .
If you really want, you can draw up this document yourself . It must contain the following items:
- information about the property being donated;
- no claims clause;
- personal and passport details of the other half;
- an indication of the type of transaction to which consent is given;
- additional conditions under which the spouse gives his permission.
In any case, this document requires notarization . It is submitted along with the main package to the registration chamber. If the alienation is carried out at a notary, then the application is presented there as well.
Read our article about the rules for registering a deed of gift for an apartment in Rosreestr.
Gift of personal or separate property
If residential premises are officially the personal property of citizens, or in the process of marriage relations a separate ownership regime was determined, the donation can be made without obtaining consent. The personal property of partners may include the following real estate:
- apartments acquired by citizens before the official moment of marriage (the method of acquisition has no legal significance);
- residential premises that were re-registered as the property of one of the partners as a result of participation in a privatization transaction, if the second spouse refused to participate in privatization;
- apartments given specifically to one spouse, or received by him as a result of inheritance by law or by will.
Note! If, during the marriage relationship, at the expense of the funds of the second partner or common family funds, personal property was significantly improved with a significant increase in value characteristics, the notarized consent of the second spouse will be required for the donation.
Marriage contract
Another option for actually donating an apartment to your wife is a prenuptial agreement. This is a document that may provide for the transfer of rights to personal or joint property. The couple can enter into it before marriage or during the union. But it comes into force only after marriage.
The law provides for the notarial form of the document (Article 41 of the RF IC). The state fee for notarization will be 500 rubles.
A special feature of a marriage contract is the ability to transfer the rights to an apartment to the wife before purchasing it. The document may include information only about the transfer of the apartment or additional information about other property.
You can draw up the document yourself or engage a notary or lawyer. The cost of notary services for drawing up a marriage contract will range from 5,000 to 30,000 rubles. (depending on the volume of property).
Peculiarities of obtaining spouse's consent
The legislation provides for only one option for registering the spouse’s consent to the alienation of real estate - drawing up a written document with mandatory notarization. Drawing up consent in simple written form, as well as an oral form of consent, is not permitted by law.
To obtain consent, a citizen must contact any notary office of his choice and submit to the notary the following documents:
- general passports of both spouses;
- marriage certificate;
- title documents for residential premises (certificate of title or extract from the Unified State Register of Real Estate);
- a gift agreement under which real estate is disposed of free of charge.
The notary will check the existence of common rights of the spouses to the property that is to be donated. If citizens are mistaken in good faith regarding the general rights to an apartment, the notary is obliged to explain this fact to the spouses.
The notarial consent of the spouse to donate an apartment is issued on a fee basis; the amount of the tariff must be clarified at the notary's office when handling the documents. As a rule, the preparation of this document is carried out by the notary himself or employees of the notary office, since at the same time the need to issue consent is established.
Consent to the gift will be required regardless of who the recipient is. This rule applies even to cases where the recipient of the gift is the common child of the partners. The spouse’s consent to donate an apartment to a child will be formalized according to general rules, and its availability will be checked by the registration authority.
The execution of consent differs significantly from a power of attorney, despite the similar nature of the regulated legal relations. The difference is this:
- consent does not give the right to dispose of property assets, as this is provided for by powers of attorney;
- unlike a power of attorney, notarial consent is not subject to cancellation or termination due to its validity period;
- consent can be issued only for a specific property, while powers under a power of attorney may provide for the performance of actions simultaneously with various objects.
Notarial consent does not have a validity period, so the decision to issue it must be made consciously. It is also impossible to revoke previously issued consent if the transaction was delayed for objective reasons. In this case, the spouse who executed the document can contact the Rosreestr authorities directly, notify in writing of a change in his own decision and warn about his disagreement with the conclusion of the gift agreement.
spouse's consent to donate an apartment
Option 1. Donation for close relatives, as well as in other cases when the transaction is accompanied by a lawyer, there is a simplified procedure for registering a gift (without collecting supporting documents about the rights of the owner) - drawing up an agreement in simple written form. The cost of such an agreement does not depend on the value of the object being donated; the term for drawing up the agreement is no more than an hour. If the package of documents is ready, you can submit it to Rosreestr for registration on the same day.
Option 2. Donation agreement certified by a notary . In this case, it is necessary to collect an additional package of documents confirming the rights of the owner, since the notary must check the “purity of the transaction” according to the submitted documents. A donation agreement certified by a notary is registered in Rosreestr 7 days faster than in the first option. But its cost is significantly more expensive (calculated as a percentage of the cadastral value).
Features of obtaining consent after divorce
Even after the official termination of family relations, spouses may retain common property rights to real estate acquired during the marriage. This happens in the following cases:
- if, before the divorce, citizens did not make demands on each other to divide joint property assets or determine shares in it;
- if during the divorce proceedings similar demands were not presented as part of the claims.
In this case, the joint regime of real estate is maintained even after the separation of the spouses and remains in force until the divorced citizens carry out a division or until the rights to the property are transferred to third parties with the consent of both owners.
Registration of notarial consent after a divorce will be carried out according to general rules, however, instead of a marriage certificate, citizens must present to the notary a similar document on the termination of family relations.
In what cases is consent required?
If spouses acquired property with joint money during marriage, the consent of the second spouse is required. For example, in the following cases:
- purchase and sale;
- privatization of land with redemption of surplus;
- provision by the Administration of housing under a purchase and sale agreement;
- equity participation in construction;
- court decision (not always), etc.
In what cases is consent not required?
- If the citizen received property before marriage for any reason (if there is no dispute between the spouses);
- Under gift agreements;
- Property was received by inheritance;
- when a marriage contract has been concluded for such property;
- After the privatization process;
- In other cases, when joint money was not involved in the process of acquiring property...
Consequences of giving without consent
Since the execution of notarial consent is a mandatory requirement of the law, its absence will be grounds for declaring the transaction invalid. The procedure for recognizing the invalidity of transactions, as well as the consequences of such a procedure, are regulated by the Civil Code of the Russian Federation.
A claim for invalidity may be filed by any interested party whose rights were violated by such actions of the parties. In practice, in this case only the rights of the donor’s family members may be violated, including not only the spouse, but also the potential heirs of the donor.
To challenge gift transactions, a three-year statute of limitations is provided, during which interested parties must apply to the judicial authorities. If the fact of lack of consent is duly confirmed during the consideration of the claim, the donation transaction will be declared invalid. In this case, the donated real estate is subject to transfer back to the previous owner, which does not deprive the right to subsequently formalize the donation properly with obtaining notarial consent.
Property division agreement
An alternative to donation in such a situation may be an agreement on the division of property acquired during marriage.
Art. 254 of the Civil Code of the Russian Federation provides that spouses have the right to independently determine the size of shares in joint property. With the help of an agreement, the husband can transfer his share in the apartment to his wife without drawing up a gift agreement.
Features of this option:
- Mutual consent of the spouses is required.
- Notarization of the agreement is required.
- Can be issued during marriage, during divorce or within 3 years after divorce.
The agreement may provide for counterclaims. For example, a wife gets an apartment, a husband gets a house or a car.
The spouses can draw up the document themselves or with the help of a lawyer or notary. For notarization you will have to pay 0.5% of the cost of the apartment. And for the preparation of the project from 5,000 to 8,000 rubles.
The last stage is registration of the transfer of rights in Rosreestr. For this you need to pay 2,000 rubles.
