How to properly draw up a real estate donation agreement and what is needed for this?

The deed of gift and donations have a similar legal nature, but at the same time they have some differences, which are important to know about when choosing the appropriate method of gratuitous transfer of property. A comparative description of these agreements is given in our article - after reading it, you will understand what the features of each of them are.

• Donation agreement under the Civil Code of the Russian Federation Main provisions
• Advantages and disadvantages

What is donation?

A donation is a transaction according to which the owner transfers property to the donee free of charge.

The procedure is characterized by several signs:

1. Gratuitous. Transfer of a gift under conditions is prohibited. The donor has no right to demand money or valuables from the recipient - in such cases a purchase and sale agreement is concluded. If instead a gift agreement (hereinafter referred to as DD) is drawn up, but in fact the owner receives money for the property, the transaction is considered sham and invalid (Article 170 of the Civil Code of the Russian Federation).
2. Mutual agreement. The owner is obliged to transfer the gift after execution of the document, or after some time. The second person will need to agree to accept the gift. He has the right to refuse at any time before receipt (Article 573 of the Civil Code of the Russian Federation). In the case of an oral DD, the refusal is made orally; in the case of a written DD, the refusal is made in a similar form.
3. Objectivity. In a written deed of gift, reference to the item - a gift - is required. If the procedure is performed by a representative, you will need to indicate the subject and personal data of the recipient. The absence of an object is the basis for declaring the procedure void.
4. Reduction of the donor's property. He has the right to donate valuables that belong to him as property. Alienation of other people's belongings is prohibited.
5. Increase in the donee's property. Due to gratuitousness, he receives valuables completely free of charge. The only cost is registration of ownership, if real estate is donated: a state duty is paid for this.

The donation is made orally or in writing. Oral delivery is sufficient if movable property is alienated. To transfer a gift worth over 3,000 rubles. from a legal entity, as well as real estate or when promising a donation in the future, a written form is required (Article 574 of the Civil Code of the Russian Federation).

Donation agreement of the Civil Code of the Russian Federation

A donation agreement is a document on the basis of which any value (thing or right) is transferred from one party (donor) to another party (recipient) by way of donation for use for general beneficial purposes (Article 582 of the Civil Code of the Russian Federation).

The recipient may be (clause 1 of Article 582 of the Civil Code of the Russian Federation):

• citizen;
• legal entity (medical, social, cultural, educational or other non-profit institution, as well as the state, regions and municipalities of Russia).

The donor can be any citizen or organization.

If it becomes impossible to use the property in accordance with the purpose specified in the contract for some reason, the purpose of its use can be changed only with the consent of the donor. If the donor does not exist at the time of the change in circumstances (the person may die, and the organization may be liquidated), only the court can make a decision on the further use of the donated property (Clause 4 of Article 582 of the Civil Code of the Russian Federation).

Basic provisions

The provisions of the donation agreement must determine:

1. The subject of the contract is a thing or right transferred into ownership to the recipient free of charge. The subject may be money, property (both movable and immovable), rights, as well as work performed and services provided.
2. Characteristics of the subject of the contract. It is important to correctly describe the thing (right) transferred to the recipient. The contract may indicate its name, quantity, individual number (VIN, IMEI, etc.), physical properties, brand, model, condition, description of defects, etc. The easier it is to identify the item being transferred, the better.
3. Procedure for using the donation. If the recipient is an individual, the use of the property for a specific (targeted) purpose is a mandatory condition of the donation agreement - otherwise it will be considered a regular donation agreement. If the recipient is an organization, a condition on the intended use of the property may be included in the contract; if there is no such condition in the agreement, the organization can use the property in accordance with its purpose, but always for generally useful purposes (clause 3 of Article 582 of the Civil Code of the Russian Federation).

Advantages and disadvantages

The advantages of the donation agreement are:

• the ability to terminate the contract if the recipient has used the valuables transferred to him for other than their intended purpose;
• the donor has the right to independently determine the purposes for which the donated property will be used, as well as control the process of disposing of such property

The disadvantages of the donation agreement are:

1. limited categories of persons who can act as recipients;
2. there is a possibility of termination of the donation agreement if its terms are not fulfilled properly (on the part of the donor, this feature will not be a disadvantage, but rather an advantage);
3. the recipient has obligations to use the received property for strictly defined purposes.

Gift agreement: one-sided or two-sided transaction?

Now let's figure out what kind of deal this is - unilateral or bilateral. In legal practice there are several interpretations. While some adhere to the first option, others reasonably consider this a two-way procedure.

Let's turn to Art. 154 Civil Code of the Russian Federation:

• A document is considered unilateral, according to which the will of the property owner is sufficient;
• a bilateral transaction is a transaction that requires the consent of the will of both parties;
• a multilateral procedure requires agreement between three or more citizens.

According to the Civil Code of the Russian Federation, DD is considered one-sided, because places obligations on only one person – the donor. However, without the consent of the recipient to accept the gift, the transaction is not possible. Another argument in favor of two-sidedness is the possibility of refusal by the recipient.

How to draw up a debt gift agreement?

Is a gift agreement valid after the death of the donor?

Taxation of donations

Tax benefits for donors

Donor is an individual, in accordance with paragraphs. 1 clause 1 art. 219 of the Tax Code of the Russian Federation, has the right to receive a social tax deduction in the amount of the donation made by him. The amount of such a deduction is limited - it can be no more than 25% of the taxable income received for the tax period in which the donation was made.

Example:

In 2021, Victor donated 500,000 rubles to the orphanage. During this year, he earned 1,200,000 rubles, from which his employer withheld personal income tax in the amount of 1,200,000 x 13% = 156,000 rubles.

Victor decided to receive a tax deduction for the amount of the donation, but the tax office refused him - the maximum amount of the deduction due to him was 1,200,000 x 25% = 300,000 rubles.

Victor drew up a declaration taking into account the maximum allowable amount and received 300,000 x 13% = 39,000 rubles in excess tax paid in 2018.

A donor-organization cannot reduce its income by the amount of property alienated by way of donation (clause 16, clause 34 of Article 270 of the Tax Code of the Russian Federation).

Income tax for the recipient of the donation

In accordance with the provisions of Art. 247 of the Tax Code of the Russian Federation, the object of taxation for an organization is the profit it receives. When determining the amount of profit, in accordance with clause 2 of Art. 251 of the Tax Code of the Russian Federation, targeted revenues aimed at maintaining organizations are not taken into account, provided that the transferred assets were used by the organization for the purpose specified in the agreement.

In order to correctly determine the size of the tax base, the recipient of the donation must keep separate records of all income received by him. Income from one’s own activities must be recorded separately from income received as a donation (clause 3 of Article 582 of the Civil Code of the Russian Federation).

Types of unilateral gift agreement

If we consider a document from a generally accepted point of view as one-sided, then it comes in two types:

• real;
• consensual.

Let's look at everything in detail with examples.

Real

A real contract is considered to be concluded from the moment of actual transfer, i.e. fulfillment of obligations by the owner.

The recipient's right to the thing arises immediately after delivery. The exception is real estate: it becomes property from the moment of state registration.

Important! Until the transfer of the gift, the real DD is considered unconcluded. There is no civil liability for the owner in case of refusal of obligations. Even if there are signs of insignificance, imaginary or pretense, such a transaction cannot be considered invalid.

Case study:

The woman gave her daughter a car orally - written form is not necessary here. The moment of conclusion is the handover of keys and title documents.

Consensual

A document concluded after the terms have been agreed upon by citizens is considered consensual.

Unlike the real one, it can be canceled at any time before the delivery of the valuables. It is considered concluded from the moment the document is signed by the owner and the donee, and is two-sided.

Case study:

The man issued a deed of gift for his son, donating an apartment. Written form is required, as is notarization. The document is considered concluded on the day of signing. However, the recipient will have ownership rights only after contacting Rosreestr to re-register the documents.

When is a deed of gift recognized as unilateral?

The procedure is one-sided when drawing up a consensual DD, because Obligations arise only for the donor.

A citizen has the right to accept the thing or refuse it before receiving it. In reality, people have rights and responsibilities at the moment of transfer.

Unconditionality of presenting things

The definition of the agreement in question indicates that only one party has obligations under the transaction - transferring all powers in relation to the property. The person receiving such property is freed from any obligations, which is the main characteristic feature of such transactions that defines it. The presence of a counter transfer and the obligation of the recipient of the property to perform any actions in favor of his donor indicates the sham of the transaction. The latter in this case is void, and the main one, depending on the specifics, can be recognized as a contract for the provision of paid services, work, etc.

Warning

Judicial practice shows that a symbolic payment or transfer of any thing to the person making the gift of property, determined by local traditions and customs, does not indicate a sham of the concluded contract.

In legal theory, there is a point of view that such a transaction can still impose certain obligations on the recipient of the thing. For example, if the contract specifies the donor’s right to reside and be registered in the residential premises for life after the transfer of powers in relation to it, the recipient is obliged to provide such an opportunity. In fact, the encumbrance of a gift occurs even before the transfer of ownership of it, and therefore cannot be considered the responsibility of the recipient of the property.

The condition of making a gift in the event of the occurrence of certain circumstances cannot be considered his obligation, even if it directly depends on him. For example, in an agreement, a citizen assumes the obligation to present a car if the recipient receives a PhD degree. This circumstance may or may not occur, but the potential recipient has not undertaken an obligation to obtain an academic degree through a consensual agreement.

Thus, the contract in question may contain any conditions and link the transfer of a gift with the occurrence of any circumstances, if they do not contradict current legislation. The only prohibition in this case is the compensatory obligation of the recipient of the thing (transfer of other property, performance of work, provision of services).

What can be given as a gift under a unilateral agreement?

You can give any valuables that belong to the donor by right of ownership:

• real estate: apartment, house, land, buildings, structures;
• movable property: car, money, shares, jewelry, etc.;
• right to claim debt;
• debt obligations of the recipient (notification of the creditor will be required).

Alienation of a share in the authorized capital is also allowed, but the consent of the remaining owners will be required if this is provided for in the organization’s charter.

Features of donating real estate

Real estate is any property that cannot be actually transferred “into hands” without destruction: houses, apartments, etc.

If a private house is donated, the land plot on which it is located is also transferred to the recipient: separate alienation is not allowed.

There are other points:

1. If the property was purchased during marriage, you will need the notarized consent of the spouse. The exception is the presence of a marriage contract, according to which everything belongs to the donor.
2. The transfer of ownership is subject to state registration. The procedure must be in writing.
3. You cannot give housing to children under 18 years of age.
4. To alienate a share, the consent of the remaining owners is not required; notarization is required.

Lawyer's advice: to donate real estate, pay off all debts for housing and communal services in advance and write out all the people. Otherwise, the donee may have problems when he becomes the owner.

Features of a deed of gift for movable property

Any property that is not related to real estate is considered movable: a car, bank deposits, securities, etc. To transfer such valuables, a written form is not required.

An exception is the presentation by a legal entity of a gift worth more than 3,000 rubles: everything must be documented in writing.

Oral DD is considered real, because lies at the moment of receiving the gift. Written – consensual: it is considered concluded on the day of signing.

Do I need to have the deed of gift certified by a notary?

Notarization of a gift agreement is necessary in several situations:

• a share in housing that has several owners is given;
• Parents or legal representatives act on behalf of a child or person with limited legal capacity.

If all the owners of the premises give their shares to a person or several people, it is not necessary to have the agreement certified by a notary.

Lawyer's advice: it is better not to save money and seek certification from a notary. The presence of his signature and seal will allow, in the event of a challenge to the DD, to confirm that the donor was in an adequate and capable state and did not act under threats, psychological or physical pressure. First of all, the recipient needs this so as not to lose the donated property as a result of challenging the transaction.

Important! If the agreement is not certified in all cases, then certification of the spouse’s consent to the transaction is strictly necessary.

How to issue a deed of gift: step-by-step instructions

Let's consider a step-by-step algorithm of actions when drawing up a contract using the example of real estate alienation:

1. A written document is drawn up where the owner promises to make a gift in the future.
2. If necessary, everything is certified by a notary.
3. Before the date of transfer of property, the donee has the right to refuse. The refusal must be made in writing.
4. From this date, the recipient applies to Rosreestr to register ownership rights.
5. After 10 days, an extract from the Unified State Register is issued.

An example of concluding a real bilateral agreement:

1. A citizen gives a car to a person, handing over the keys, changes are made to the title. From this moment on, another person is considered the new owner.
2. The owner buys compulsory motor liability insurance and registers the vehicle with the traffic police.

Note! A real two-sided document is also relevant for small gifts that are usually given on holidays: jewelry, tool sets, cosmetics, etc. The recipient can refuse them at the time of transfer, so his consent is required.

Contents of the agreement

The document must contain complete information:

• Full name, passport details, dates of birth of citizens;
• information about the subject;
• effective date;
• signatures of the parties.

Sample apartment donation agreement:

Documentation

When registering, you will need the following documents:

• passports of citizens;
• notarized power of attorney, if the interests of the owner or recipient are represented by another person;
• real estate documents: extract from the Unified State Register of Real Estate, cadastral passport, technical documentation;
• when alienating a car - PTS, STS, as well as documents confirming the grounds for the emergence of ownership rights (inheritance certificate, DCT, etc.).

The complete list of documents depends on the type of gift.

Donating an apartment with registered people

Registration in a specific premises gives only the right of residence, and not the right of ownership. The owner can give real estate with people registered in it to anyone without asking their permission.

Points to consider:

1. The child is registered in the apartment, you need to provide him with another place of registration, having secured permission from the guardianship authorities;
2. You cannot write out a person who has been granted ownership rights under a rental agreement, or a child left without parental care. Deregistration is not allowed even by force.
3. Citizens can be discharged at any time: both before and after registration of the DD. If registration is canceled after the transaction is concluded, it is necessary to indicate in the contract how long it will take for people to be discharged.

Note! If citizens are not discharged within the established time frame, the donee, after registering the gift agreement, has the right to independently remove them from the register voluntarily or through the court. Ownership from this moment passes to him.

How to challenge a deed of gift?

Cancellation by peaceful means is possible only with mutual consent of the parties. The procedure is supported by the execution of a termination agreement.

In other cases, you will have to go to court to cancel if there are grounds:

• commission by the donee of a crime against the life and health of the donor or his relatives;
• death of the donor due to the fault of the other party;
• death of the recipient before the former owner, if this is provided for in the deed of gift;
• invalidity: signing under the influence of delusion, threats, violence, blackmail;
• imaginary or pretense.

Third parties also have the right to go to court:

for example, heirs, if the donee intentionally killed the donor, and the court verdict entered into legal force. Creditors of the former owner of the property can also demand cancellation if less than six months before the start of the bankruptcy procedure he registered everything in the name of another person.

Donation without obtaining the consent of other interested parties

Let's say the owners of the apartment are shareholders. Then the minor co-owner has the opportunity to donate his share or part of the share to another person without obtaining consent from other copyright holders. At the same time, he is obliged to notify the guardianship authorities about the gift and obtain their approval.

The donation of a share in real estate by an adult does not require compliance with any auxiliary conditions. Also, providing a gift to a minor in the form of a share of real estate does not require the recipient or donor to notify the guardianship authorities about this.

When writing the test “Donation Agreement”, it should be indicated that without indicating the legal norms, without taking into account the date of transfer of ownership and compliance with the form of the transaction, the document will not be recognized as valid.

If you indicate in the document a condition for the transfer of property to a new copyright holder, this will no longer be considered a gift agreement. The donor cannot set compensatory conditions, as when developing contracts of exchange or purchase and sale.

Arbitrage practice

Challenging is carried out through the court, because The consent of the other party is not required in this case. Challenging a deed of gift is a complex process that requires good legal preparation and complete evidence confirming the grounds for canceling the transaction.

But there is an opportunity to challenge everything in court, this is confirmed by several decisions:

• 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. 2-597/2019 2-597/2019~M-515/2019 M-515/2019 dated June 13, 2021 in case No. 2-597/2019;
• Decision No. 2-3414/13 2-3414/2013 dated November 11, 2013

Differences between a gift and a will

• The main difference between a gift agreement and a will is the moment of execution of the will of the initiator of the transaction. A gratuitous gift can be made today by transferring property or rights to the recipient. But according to the terms of the will, property will pass to the heir only after the death of the testator.
• A testamentary document is a one-sided transaction. Donation is a two-way transaction. Parties in the status of donor and recipient are specific persons, there may even be several of them.
• In practice, the donor personally gives the item to the recipient, who gratefully accepts it. But you can also transfer a gift through a representative by registering a power of attorney notarized. Then the document clearly indicates what is being transferred and to whom.
• The closed form of the will is also important. The terms of this document may remain secret even to the notary who holds it. Whereas the terms of the gift agreement must be privy to the other participant.
• The will can be rewritten or partially changed at any time, and without specifying the reasons. To terminate the terms of the deed of gift, a compelling reason must be specified.
• It is the responsibility of the donor to notify the recipient of all the features and shortcomings of the transferred property. The testator is not obliged to do this. But the heir also has the right to refuse unfavorable legal ownership.

At the same time, these documents also have common features. Firstly, it is only allowed to give and bequeath what belongs to the citizen personally. Secondly, both documents can be considered invalid if the donee or heir is recognized as dishonest participants in the agreement.

To whom can a deed of gift not be issued?

The Russian Civil Code establishes the circle of both individuals and legal entities who are prohibited from delivering a deed of gift. These include:

• Social workers providing municipal medical services, employees of boarding homes, palliative centers and hospices, and their close relatives;
• Officials in the public service at all levels, employees of the Bank of Russia and government bodies;
• Commercial organizations.

An exception for officials are gifts given by order of higher authorities on the occasion of celebrations, events, or business trips. The object is transferred to the balance sheet of the government agency in which the donee works.

Features of drawing up a deed of gift with the participation of legal entities

Donation of property, where the parties are a legal entity, may be limited in scope or prohibited. According to Article of the Civil Code of the Russian Federation No. 572, the gratuitousness of the procedure excludes any mutual financial claims and the use of the gift for the purpose of obtaining benefits. Therefore, such transactions are prohibited.

This is also important to know:
How to draw up a gift agreement between spouses

When transferring goods to a legal entity, which is a non-profit form of ownership, a public organization, a charitable foundation, etc., it is possible to dispose of the gift in order to obtain benefits. It will be difficult for the donor to refute the transaction if the funds received from the use of the gift go to the maintenance of a public organization and comply with the Charter.

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The donation procedure is permitted between a parent and subsidiary organization, but does not exempt from tax.

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If property worth more than 3,000 rubles is donated on behalf of a company, then the donation agreement of the Civil Code of the Russian Federation is concluded with the permission of the owner - founder of the company.

The agreement on the alienation of property can be canceled if the donor company goes bankrupt in the next six months. In this case, the alienated property will be used to pay off debt obligations.