Any property owned by one person can be gifted to another. This also applies to apartments, however, when transferring ownership of such an expensive object, it is necessary to comply with the norms of Russian legislation, without which the transaction may be declared void and cancelled.
When do you need a notary and when not? What should a gift agreement look like? Features of donating shares in real estate. Methods and, most importantly, costs of the entire process. There are many questions, the answers are further in the article.
- The price of voluntary certification
Features of drawing up a gift agreement
There are two types of gift agreement (hereinafter referred to as DD): real and consensual. In the first case, the transfer of property is implied immediately after signing by the donor and the recipient; in the second, a promise of gift agreement is drawn up, and the recipient will be able to use the gift only after some time or upon the occurrence of a certain event.
In both cases, the parties bear certain costs for:
- consultations;
- drawing up a deed of gift;
- notarization (optional or when required);
- re-registration of ownership of real estate.
Below we will consider what can be given as a gift under a DD, when notarization is required and how much money you will have to spend when contacting a notary, lawyer or MFC.
See also:
- How to draw up a contract of promise of gift in the future?
- How to draw up a real gift agreement?
If it comes in a simple form, have it drawn up by a lawyer
Let us now consider the option when the presence of a notary is not necessary (a simple form of agreement). This means that there will be no significant expense item, which implies preparation and certification by this specialist.
However, drawing up a deed of gift for an apartment yourself is not recommended. It is not recommended to use both “forms” and “standard templates” of such agreements.
- Firstly, it is difficult to take into account all the nuances of the legislation in general, and a specific case in particular.
- Secondly, an incorrectly drawn up contract may not be registered, which means time is wasted.
- Thirdly, registration of a contract with errors may lead to its cancellation in the future.
Therefore, there is only one way to avoid problems - to entrust the preparation of a deed of gift for an apartment to a professional lawyer.
What can you give under a gift agreement?
According to the DD, a person has the right to donate any property that he owns: a house with a plot of land, an apartment, a share in the ownership of real estate, a car or other vehicle, money, etc.
“Intangible” donations are also allowed:
- the right to claim debt from a third party;
- assumption of debt obligations by the donor from the donee to a bank or individual.
Important! Compliance with the form of the contract is required. The transaction is formalized in writing when a legal entity gives a gift worth more than 3,000 rubles, transfers a gift of real estate or promises a gift in the future.
Art. 574 Civil Code of the Russian Federation “Form of gift agreement”
See also:
- How to draw up a deed of gift for an apartment?
- Drawing up a donation agreement for a house and land
- How to donate a car under a contract?
Requirements for donors and recipients
The main condition for completing a transaction is the legal capacity of both parties. If the donee is declared incompetent or has not reached the age of 14, legal representatives accept the gift on his behalf; the consent of the guardianship authorities is not required.
Children over 14 years old can give gifts according to the DD - they sign on their own, but with the consent of their parents.
One thing is required from the recipient - consent to accept the gift.
See also:
- Rights and obligations of the parties to the gift agreement
Drawing up a gift agreement: how to draw up a deed of gift correctly and what documents will be needed?
How to formalize the donee’s refusal of a gift agreement correctly?
When is a notary needed to prepare a gift agreement?
First of all, let us point out the difference between state registration of an agreement and its notarization. These are two different processes that many untrained citizens confuse.
- State registration is a mandatory action when transferring ownership of a real estate property (or its share). Simply put, this is an action aimed at ensuring that the information about the owner changes in Rosreestr.
- Notarization is the recording by the responsible person (notary) of the correctness of the drafting and validity (and voluntariness) of signing the agreement. The law determines cases when such assurance is necessary and when it can be dispensed with.
These actions do not replace or cancel each other. If the law requires notarization, then both procedures must be performed and, accordingly, both must be paid. If there are no such requirements, you can only get by with state registration.
When is it obligatory to give?
In 2021, legislative adjustments took place in Federal Law No. 218 “On State. registration of real estate." Now cases when a contract must be certified by a notary are limited to two options:
- If we are talking about the property of a minor, a person with limited legal capacity, or the property is in trust management / guardianship (Part 2 of Article 54 of Federal Law No. 218).
- When one or more shares of an object are given as a gift, but not all (Part 1, Article 42 of Federal Law No. 218).
Let us explain the last point with an example. The apartment has five owners with equal shares. One of them decided to donate his share, while the others are not against it, but they do not transfer ownership of their shares. The contract will require notarization. If all five owners decide to donate their shares regardless to one person or several, i.e. the transaction will apply to the entire property (the entire apartment), then notarization is not required .
If the donation applies to the entire apartment, incl. to all its shares, if the real estate is not the property of minors or incapacitated persons, and is not under guardianship, the gift agreement is not subject to mandatory certification by a notary and can be drawn up in simple written form.
Here lies its own difficulties associated with the accuracy of drawing up a gift agreement, but this is why specialized lawyers exist to help in this situation. We will return to them later, but for now let’s get to the bottom of things with notaries.
When is a visit to a notary required?
A deed of gift does not always require notarization.
It is only necessary to contact a notary in a few cases:
- a legal representative acts on behalf of the donor or recipient by power of attorney;
- the subject of the transaction is a share in the LLC, if it is alienated not in favor of the other owner;
- the donee receives a share in the ownership of the property.
It is worth considering that when alienating a share in an apartment, land plot or private house, the consent of the remaining owners is not required.
An exception is the donation of property acquired during marriage: the donor must obtain notarized consent from his spouse before signing the DD. If this is not done, the spouse will be able to challenge the transaction within 1 year after learning of the violation of his rights.
Reason: Art. 35 RF IC “Ownership, use and disposal of common property of spouses”
See also:
- How to properly draw up a gift deed without a notary?
- The procedure for registering a deed of gift between spouses
general information
Our regular visitors probably know that 2 parties take part in the gift transaction:
- Donor - a person who wishes to donate part of his property free of charge to a close relative or stranger.
- The donee is a person who has agreed to accept the property of another person as a gift, along with the obligations and rights to the object of the transaction.
And, although, according to the current Russian legislation, this type of transaction is not mandatory for notary support, most experienced lawyers recommend contacting a specialist, even when drawing up an agreement with a loved one, in whose intentions you are 100% sure!
If the parties to the transaction have decided to have it accompanied by a notary, the algorithm of actions for them will be significantly simplified in comparison with the classical scheme and will look like this:
- The first stage - after choosing a specialist and obtaining consent to accept a gift from the recipient, the necessary documents are collected;
- the second stage is the preparation, as well as signing by the participants and certification of the deed of gift by a notary;
- the third stage is the transfer of documentation for the official registration of property rights by a notary to the relevant registration authority.
Let's look at each of these stages in more detail.
Where can I get a deed of gift and how much does it cost?
You can draw up a deed of gift yourself and submit documents to Rosreestr if real estate is being donated and notarization is not required.
If desired, the parties can contact a notary or lawyer if they want to make the procedure as safe as possible and reduce the chances of challenging the DD by third parties. Legal advice: if possible, it is better to have the contract certified by a notary, even if this is not required by law. This approach will protect the rights and interests of both parties.
Cost of notary services
Let's look at the prices of notaries for different categories of services:
| Service | Cost, rub.) | Installed by |
| DD certificate is mandatory | 0.5% of the transaction value, minimum 300 rubles, maximum 20,000 rubles. | clause 5 clause 1 art. 333.24 Tax Code of the Russian Federation |
| Certificate of spouse's consent | 500 | clause 6 clause 1 art. 333.24 Tax Code of the Russian Federation |
| Certificate of gift for movable property (optional) |
| Art. 22.1 “Fundamentals of legislation on notaries” |
| Certificate of DD of real estate, if a signature is not required by law |
To other persons:
| |
| Submitting documents to Rosreestr for registration | For free | Federal Law dated August 3, 2018 No. 338-FZ |
| Preparation of contract | From 5 000 | Determined by regional notary chambers |
| Consultation | From 3 000 |
An example of how much it will cost to register a DD with a notary:
A woman transfers to her daughter an apartment purchased during marriage. Cadastral value – 5,000,000 rubles. The consent of the spouse is required, notarization is at the request of the parties.
Consent will cost 500 rubles.
How is the notary fee for certifying a transaction calculated:
5,000,000 x 0.2% = 10,000 (floating part)
10,000 + 3,000 (fixed part) = 13,000 rubles.
7,000 was paid for drawing up the DD.
Total: 20,500 rub.
Benefits when contacting a notary
Certain categories of citizens can receive discounts from notaries on state fees:
Article 333.38 of the Tax Code of the Russian Federation “Benefits when applying for notarial acts”
- disabled people of groups 1 and 2 – 50%;
- public organizations of disabled people - complete exemption;
- representatives of municipal and state authorities – 100%;
- individuals upon alienation of emergency housing subject to demolition - 100%.
Important! To confirm your preferential status, you must provide a certificate of disability or other document depending on the basis for the provision of the benefit. However, legal and technical services will have to be paid in full.
Cost of legal services
The services of a lawyer will cost less than a notary, but are determined by the internal price list and are not regulated by law:
| Name of service | Price, rub.) |
| Drawing up a deed of gift | From 1 500 |
| Collection of documents | From 1 000 |
| Submitting an application to Rosreestr | From 800 |
If the DD requires notarization, this is paid separately in accordance with the established tariff or state duty.
Cost of registration at the MFC
The MFC also has private lawyers, and the prices are approximately the same as those presented above. But the donee will have to pay a separate state fee for re-registration of ownership.
See also:
- State registration of a gift agreement through the MFC or Rosreestr
- How to issue a deed of gift for an apartment through the MFC?
Donation of a plot of land in 2021
The principle of donation is the transfer of rights to property from one person to another free of charge. The absence of material obligations for the transferred property distinguishes a deed of gift from a purchase and sale agreement.
The legal features of donation are regulated by Ch. 32 of the Civil Code of the Russian Federation.
The following requirements apply to the donation of land (for 2021):
- transfer of rights to own property occurs on a voluntary basis;
- parties to the agreement are legal entities or individuals;
- the land plot must be privatized;
- You can donate not the entire plot of land, but a share of it;
- the recipient receives the land plot or part of it at full disposal, that is, he can do whatever he sees fit with it;
- the deed of gift can be revoked or canceled (Article 578, Chapter 32 of the Civil Code of the Russian Federation).
- if the donor died before registering the property with the MFC, the transaction is cancelled;
- The owner can donate a plot of land even if another person owns the house located on its territory.
A plot of land can be donated to the following relatives:
- spouse;
- grandmother, parents, children and other direct relatives;
- siblings.
A civil servant, medical worker or social service employee cannot act as a recipient.
According to the law, it is prohibited to draw up a deed of gift on behalf of the deceased. In this case, the land plot is inherited by the closest relatives.
Personal income tax on gift
Personal income tax of 13% is paid by the recipients, because The property received is legally considered profit. If real estate is transferred under the DD, the calculation is based on the cadastral value.
Close relatives of the donor in whose favor the property is alienated are exempt from taxation:
- spouses;
- children (natural and adopted);
- parents;
- full and half brothers, sisters;
- grandmothers, grandfathers;
- granddaughters, grandchildren.
The 3-NDFL declaration must be submitted to the tax authority by April 30 of the year following the date of the transaction. Taxes are due by July 15th.
See also:
- Tax return when donating property
Procedure for drawing up a donation agreement
To register a deed of gift, citizens need to perform several steps:
- Agree on the terms of the deal. The recipient has the right to refuse the gift at any time before delivery, so his consent will be required.
- Decide who will draw up the deed of gift: a notary, a lawyer, or draw up the document yourself.
- Agree on the date and time of signing the DD. The presence of both parties is required. If the donee or donor cannot come, you will need a power of attorney certified by a notary.
- Sign the deed of gift at the appointed time with a lawyer or notary.
Art. 573 of the Civil Code of the Russian Federation “Refusal of the donee to accept a gift”
If real estate is alienated, documents for re-registration to the new owner can be submitted at a notary's office. If desired, the parties can visit the MFC or Rosreestr and leave an application there.
Contents of the agreement
Let's look at a sample deed of gift for an apartment and understand the main content of the document.
Sample deed of gift
When registering a DD it is indicated:
- Full name, passport details, registration addresses of the parties;
- date, time, place of detention;
- address of the notary office, full name notary (for certification);
- information about the gift: address, area, year of construction, etc.;
- details of the power of attorney (if executed by a representative);
- the donor's intention to give the gift free of charge;
- signatures of the parties.
Documentation
The list of documents depends on the property being transferred. You will definitely need passports, and for a child under 14 years old - a birth certificate.
The rest of the list looks like this:
- a document confirming the grounds for the origin of the donor's property rights (sale and purchase agreement, certificate of inheritance, etc.);
- extract from the Unified State Register of Real Estate;
- PTS, STS (in case of alienation of a vehicle);
- cadastral passport.
Note! It is not necessary to provide a receipt for payment of the state duty - employees of all departments check information about the receipt of funds independently through the internal system. But to avoid problems, it is better to take it with you to confirm the fact of payment if necessary.
State duty
When visiting Rosreestr or the MFC to register a new property owner, a fee of 2,000 rubles is paid. (individuals). For legal entities the amount is higher - 22,000 rubles.
If a car is donated, the transfer of ownership is reflected in the title. The new owner only needs to register the car with the traffic police by paying 350 rubles. for making changes to a previously issued PTS, and 500 rubles. for issuing a new STS.
Legal advice: it is better to submit documents through Gosuslugi if you have a verified account. There you can pay the state fee with a 30% discount.
Legal act
Donation is a voluntary and gratuitous transfer of property from one person (the donor) to another (the recipient).
Real estate presented as a gift is confirmed by an agreement concluded between the one who gives and the one who accepts this gift.
The transaction must be registered with the State Registration (Cadastral) Chamber.
The recipient, based on the agreement, receives after registration a document confirming his right to own the real estate donated to him.
If an apartment or a house that is in shared ownership is presented as a gift, the signatures of all owners are required to confirm their consent.
Also, if the recipient is not one, but several people, their signatures are also required, confirming their agreement to accept the gift and take ownership of the property.
Registration of real estate to the new owner must be completed within a week. After this period, the new owner of the property will be issued the appropriate documents confirming the right to own the apartment.
You can learn about the specifics of donating housing between relatives, in particular how best to draw up a deed of gift, and what documents are required to complete the transaction on our website. See also a sample agreement for the donation of living space between close relatives.
Deed of gift for housing: the cost of registration between relatives with and without a notary will be discussed further.
Is it possible to challenge a deed of gift?
Cancellation of a deed of gift if there are disagreements between the parties is a problematic task. By mutual agreement, they can cancel the transaction before the transfer of the gift by formalizing an agreement with the DD.
Contestation is usually required if it is necessary to cancel the DD unilaterally.
This is possible for one of several reasons:
Art. 578 of the Civil Code of the Russian Federation “Cancellation of donation”
- causing harm to the health and life of the donor or his relatives by the recipient;
- dishonest attitude towards the donated property, entailing the risk of irretrievable loss if the gift is of non-property value to the former owner;
- intentional murder of the donor by the donee (disputed by the heirs);
- signing a DD under the influence of delusion, threats, blackmail, violent actions on the part of the donee.
The creditors of the donor conducting business activities can also cancel the transaction if it was completed 6 months before the citizen was declared bankrupt by decision of the arbitration court.
See also:
- How can you challenge a gift agreement?
- Is a deed of gift valid after the death of the donor?
Arbitrage practice
It is difficult to challenge a deed of gift, but with good legal support, the chances of a positive result increase, and this is confirmed by several decisions made in favor of the plaintiffs:
- Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 ;
- Decision No. 2-44/2019 2-500/2018 dated June 28, 2021 in case No. 2-44/2019;
- Decision No. 2-768/2019 2-768/2019~M-272/2019 M-272/2019 dated June 28, 2021 in case No. 2-768/2019.
Important! If the court revokes the deed of gift, the defendant undertakes to return the gift to the plaintiff in its original form. If the gift cannot be delivered, you will have to compensate for its cost.
Real estate gift agreement: pros and cons
The main advantage of DD for relatives of the donor: having received the property free of charge, they will not have to pay personal income tax. Both parties are exempt from payment. If real estate is transferred under a purchase and sale agreement, tax obligations arise on the seller. But there is no point in trying to disguise a paid transaction as gratuitous - according to the law, it can be recognized as sham.
There are other advantages:
- there is no need to obtain the consent of the other participants in shared ownership: the preemptive right applies only to paid transactions;
- When alienated by a parent to a married son or daughter, the property becomes sole property and is not subject to division in the event of divorce.
The disadvantage of a gift is the prohibition on specifying counterclaims and conditions. You cannot demand money from the recipient under a gratuitous transaction or indicate that the gift will be received only after the death of the donor.
In the first case, the rules of purchase and sale apply; in the second, a will must be drawn up, not a deed of gift.
See also:
- The procedure for registering a gift for children
- Drawing up a gift agreement for parents
Contents of the agreement
What information should be contained in the contract ? The donation agreement contains the following information:
- Full names of the parties and their residential addresses, information from passports.
- Object of donation. You must indicate the address of the property, the number of rooms and their area. If this is an apartment in a multi-storey building - floor and floor plan, age of the building, registration number, its cost, etc.
confirm the donation agreement :
- passports of the parties concluding the agreement;
- technical passport of real estate issued by the technical inventory bureau;
- a document certifying the donor’s right to this property (sale and purchase agreement, privatization, or will);
- if the donation is made by power of attorney, the document must contain a reference to this power of attorney, and a copy of it must be attached to the package of documents;
- certificate from an accredited appraisal company.
Lawyer's answers to frequently asked questions
What is the validity period of the deed of gift?
The donee has the right to re-register the property in his name within 1 year. If during this time the donor dies, the obligation to transfer the gift goes to his heirs. It is better to arrange everything as quickly as possible in order to avoid litigation with them.
Is gifting possible between husband and wife?
Yes. If property was purchased before marriage by one of the spouses, it belongs to him alone and there is no need to allocate a share for alienation. To donate common real estate, a preliminary allocation of shares will be required.
I want to donate a share in an apartment and a car that belongs to me. How to calculate expenses?
An agreement for the alienation of a share is subject to notarization, and a fee is paid here in accordance with the Tax Code of the Russian Federation. The DD for a car is not certified by law, but a notary fee is paid upon certification. The amounts for each gift are calculated separately.
What value of real estate is used when calculating the notary fee: market, cadastral or inventory?
Cadastral. You can find it on the Rosreestr website.
How is the deed of gift fee calculated at the notary when donating a share in real estate?
The calculation is based on the cadastral value of the share, and not the entire property.
