Is it possible to give an apartment to a minor child and how to do it?

Last modified: October 2021

Most parents ask the question: “Can I issue a deed of gift for my minor child?” The donation procedure can be carried out not only with adults, but also with minors. Thanks to a gift agreement, it is possible to transfer acquired property to your offspring, since this is the only possible way to transfer your property to minors.

Other transactions with persons under 18 years of age are impossible in accordance with clause 3 of Art. 37 of the Civil Code of the Russian Federation, since they are of a compensated nature. In order to make a donation, questions arise about the correct execution of a deed of gift for a minor child, about the nuances when making a transaction, about the necessary package of documents.

Is it possible to issue a deed of gift for a minor and under what conditions?

The legislation of the Russian Federation has no restrictions on the ownership of real estate. You can become a homeowner at any age. You can not only nominally give an apartment to a minor, but also officially register the premises in his name. The owner is registered in Rosreestr using the provided passport or birth certificate.

When registering a deed of gift for a child, the following special conditions should be taken into account:

1. The new owner will be able to dispose of the housing only upon reaching 18 years of age.
2. The transaction is possible only with the consent of the official guardians.
3. Children under 14 years of age do not have the right to sign, so documents are signed by parents or guardians.

Registration of a deed of gift does not require the consent of the guardianship authorities, since the child does not alienate, but accepts real estate as a gift.

Encumbrance of real estate - what is it, is it mandatory, what is indicated in the certificate?

When transferring an apartment by donation, the donor is deprived of the rights to housing. From the moment of signing the deed of gift, he is no longer considered the owner. The recipient, in turn, receives the transferred rights and can dispose of the property at his own discretion.

This rule does not apply if the recipient is a minor. Citizens who have not reached the age of majority can use property, but are limited in their disposal. This fact is stated at the legislative level. When drawing up a gift agreement, there is no need to register an encumbrance. The real estate certificate contains a note indicating the restriction of the right to dispose of real estate. The date of the owner's 18th birthday is indicated.

Age and capacity

Adolescence is divided into two periods:

1. From 0 to 14 years – young or incapacitated children.
2. From 14 to 18 – minors with partial legal capacity.

Young children cannot sign documents or make any decisions. Their interests are represented by parents or guardians who sign the deed of gift on behalf of the child. After achieving partial legal capacity, adolescents can independently sign documents, including a gift agreement.

In both cases, the recipients can live on the donated territory only together with official representatives.

Presence of representatives

Regardless of the age of the recipient, minor children cannot enter into a gift agreement without the presence of their parents. Representatives of the child are obliged to protect his interests by:

• checking documentation before signing;
• making a decision on the advisability of signing the agreement.

When donating housing, you must make sure that there are no encumbrances or debts.

What is a deed of gift and the specifics of donating property to a child?

A gift agreement implies a free transfer by the donor of his valuables to a person of his choice. Such an agreement is unconditional and does not imply any obligations of the recipient to the donor. After execution of such a document, the donated object completely becomes the property of the new owner to whom it was donated.

If property is donated to children who have not reached the age of majority, they will be able to dispose of it after reaching adulthood. Sometimes the donor specifies additional conditions for the gifted child to become the owner of his property. For example, he will be able to dispose of the gift subject to legal marriage or graduation.

Expert commentary

Shadrin Alexey

Lawyer

In the case of a donation of real estate with such conditions, the state registry authorities make a mark that serves as an encumbrance for the apartment or house. The recipient must provide evidence of fulfillment of the conditions specified in the contract and only then will he be able to fully dispose of the received property.

Legislative norms governing the issue

When drawing up a deed of gift for a minor, you should rely on the legislative norms governing standard transactions:

1. Civil Code (chapter “Donation”).
2. Tax code.
3. Federal Law No. 218-FZ “On State Registration of Real Estate” dated July 13, 2015.

If the donor is a close relative, reduced tax rates apply. You can learn about the main nuances of registering a deed of gift for an apartment between close relatives here.

Positive and negative aspects of this type of deed of gift

There are many reasons and life circumstances when relatives decide to donate living space and, of course, this type of transaction has its positive and negative aspects.

The advantages include:

1. The transaction does not provide for any obligations to the donor of the apartment, that is, he does not need to be looked after, maintained, etc. In other words, the contract implies an unconditional and gratuitous gift.
2. A deed of gift has a significant advantage over a will, consisting in the guaranteed receipt of an apartment by the person to whom it was intended under the contract. If the donor dies, none of the relatives will be able to sue the donated living space.
3. The gift agreement cannot be revoked. This means that the donor cannot change his decision and rewrite the contract to another person.
4. The services of a notary are not required for registration.
5. The State Register requires a minimum of documentation and issues an agreement within 5 days.
6. A donated apartment cannot serve as compensation for debt obligations.

As for the negative features of the gift agreement, the following points should be noted:

1. If parents have drawn up a deed of gift for their minor child and then decided to sell it, it is impossible to complete the transaction before the owner of the living space comes of age.
2. The donor cannot note in the deed of gift such a convention as an annuity agreement.

Giving an apartment to a child has both positive and negative aspects.

Rights and obligations

Often, real estate is given to minors by their parents. This move allows you to ensure the future of the child and at the same time avoid a number of other problems, such as seizure of property. When signing a deed of gift, the rights and obligations of the parties change, depending on who the donor was.

When transferring real estate, the donor loses the right to dispose of the property.

Before conclusion

Before donating an apartment, the owner can:

• sell the premises;
• exchange it;
• to rent;
• bequeath to others;
• dispose of it in a different way.

In addition, he can register in his own living space. If desired, the owner has the right to register relatives or strangers in the apartment. If necessary, the owner has the right to demand the eviction of registered non-owners (is it possible to donate an apartment to a registered person?).

After signing the deed of gift, all listed rights are canceled.

The child has the right to be registered in the donor’s apartment, provided that he is his parent. Having registration allows him to live in the premises on a general basis.

After conclusion

As soon as a real estate donation transaction is registered with Rosreestr, the donor is deprived of his rights as an owner. From this moment on, he must completely vacate the premises and deregister at this address. Exceptions are made to the general rule for the parents of the recipient. They are required by law to live with the minor and therefore remain registered at this address.

The child owns property only on paper. He cannot dispose of the received apartment. It is extremely difficult to sell, donate or exchange such premises. Moreover, neither the young owner nor his legal representatives can do this.

Pros and cons of giving real estate to a child

Step-by-step instructions on how to make a donation?

The process of registering a deed of gift for a child consists of several important stages:

1. Discussion of the issue of donation with adult representatives of the recipient.
2. Preparation and collection of documentation.
3. Drawing up and signing a contract.
4. Registration of the new owner in the Unified State Register of Real Estate.

If the parties to the transaction are parents and their child, then the procedure is a little simpler.

In the case where the donor is a distant relative or a person who has no family ties with the minor, additional nuances will have to be taken into account.

Where to start and where to turn?

Before starting to collect documents, the donor must clarify a number of questions:

1. Are there any encumbrances on his property? At first glance, this measure may seem unnecessary, but situations often occur when the owners are not even aware of the restrictions imposed on their apartment.
2. Check for utility debts and pay them off.
3. Consult a lawyer. It is no secret that deeds of gift are often issued in order to avoid high tax rates. Before drawing up an agreement, you should clarify all the details, calculate the expected costs and possible risks.

If you have a wife/husband, you will need to take written permission from the second spouse to complete the transaction.

Parental consent

The interests of the child are represented by his parents or legal guardians. They must approve the donation. Their positive decision does not require separate recording on paper. They express their consent by signing the deed of gift.

Adult representatives have the right to refuse to accept property as a gift if they suspect that this will harm the child or entail certain losses.

Documentation

When transferring real estate as a gift, the parties must provide a number of documents. The donor will need:

• Identification.
• Extract from Rosreestr on property rights.
• Notarized consent of the spouse.
• Technical passport for the premises.
• Certificate of persons registered in the apartment.

The recipient provides his passport or birth certificate.

The child's representatives confirm their identities using ID cards. In addition, a gift deed and a receipt for payment of the state duty are prepared.

Agreement

The deed of gift is drawn up in 3 copies . You don't need a form to write it. Read on to learn how to draw up a deed of gift. The gift agreement must contain a number of mandatory clauses:

1. Information about the donor, recipient and his representatives - full name, passport details, etc.
2. Description of the donated item - address, area, floor, how many rooms, etc.
3. On what basis were the rights of the donor established - a deed of gift, a purchase and sale agreement, a privatization agreement, or otherwise.
4. Signatures of the parties.

The document may contain additional conditions that do not contradict the legislative norms of the Russian Federation.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

Registration

Registration of a minor owner is carried out through the MFC or Rosreestr. A pre-registration is required for the meeting. On the appointed date, all parties to the transaction, including the child’s parents, must appear at the MFC with documents.

Children under 14 years of age do not have to come to registration ; the presence of their adult representatives is sufficient.

Cost of the procedure

When registering a deed of gift, tax is paid:

1. If the donor is not a relative, 13% if he is a citizen of the Russian Federation and 30% if he is not.
2. Close relatives do not contribute the indicated interest.

Registration of the agreement will cost 2,000 rubles.

We talked more about where and how to draw up a deed of gift for an apartment in a separate article.

Some features

The gift agreement is a gratuitous transaction. The person accepting the gift should not take reciprocal steps or actions in return - provide property, money, rights. It doesn’t matter whether it is of a property or non-property nature.

However, its conclusion has its own characteristics.

The contract can be drawn up:

1. With prescribed conditions on the basis of which the donor can use the property - non-binding.
2. Without reservations or wishes of the donor.

This is due to the fact that often the owner lives in the donated property or it is purchased on credit for a minor.

This accordingly leaves a certain imprint on the use and disposal of such a gift. Often grandparents want to live their lives in donated housing to their grandchildren.

Gift with encumbrance

Most often, gift transactions are carried out between close relatives. The legislation assumes that a gratuitous contract can be concluded with an encumbrance.

It is meant that additional conditions will be specified that stipulate the time and procedure for the transfer of residential premises into the ownership of the donee. So, when registering a gift of housing, one of the wishes of its owner will be to ensure the right of his residence in this living space.

Thus, the agreement will state that after its signing the donee becomes the owner, but the donor can live in it indefinitely. In this case, a donation with lifetime residence is issued.

The condition is more of a deterrent against possible negative actions towards the donor on the part of the recipient, which, unfortunately, do occur. In such a situation, the new owner can sell or exchange the property only with the consent of the former owner living in it.

The procedure for donating real estate acquired with the involvement of maternity capital

The Maternity Capital program covers a significant number of Russian families. The procedure for its use, as well as the distribution of property acquired for this money between parents and children, is regulated by Federal Law No. 256 of December 29, 2006.

The fundamental postulate of this legislative act is the mandatory condition for registering the purchased housing as shared ownership, divided between the father, mother and children.

This is usually done by submitting to the Pension Fund a notarized obligation to allocate shares to children in the purchased residential premises using maternity capital.

Subsequently, a donation agreement for a share in the apartment is registered by each of the parents, provided that the property is registered as shared ownership. If there is no spouse or there is a marriage contract, one deed of gift is drawn up.

How to give a share in an apartment to a minor child

In the situation under consideration, the agreement to donate a share of the apartment to minors is drawn up without obtaining the permission of other apartment owners, if any. The procedure also takes place with the participation of representatives of the child.

Provided that the property is joint, then it must first be legally separated from the total mass. Only after this can an agreement be concluded. The registration process is similar to what happens in the case of a whole apartment.

Agreement on donating a share in an apartment to minor children

Donation of movable property to minors

This is also provided for by law. The procedure for carrying out the transaction is no different from the option when an apartment is donated, i.e. the same conditions apply.

For example, if a child under 14 years of age becomes the owner of a car, he will be able to fully dispose of it only upon reaching his 18th birthday and, accordingly, drive it.

However, adults have the right to drive a vehicle until its owner has received a driver's license. All expenses (taxes, fees) required for the maintenance of the object are borne by its representatives.

Differences when registering for a share

In the case of donating a share in living space, some additional nuances should be taken into account.

The deed of gift for the share must be notarized if it is not alienated by all owners at the same time.

In order to donate his part of the property, the owner must have full rights to it. This rule requires the mandatory allocation of a share in percentage or numerical value, as well as “in kind”. When transferring the allocated part as a gift, the owner will not need to obtain the consent of other co-owners of the apartment for the action being carried out.

Living space purchased using maternal capital must be registered as shared ownership. Each family member should have their part. Parents can donate their shares to their children. If a mother or father wants to write a deed of gift for strangers, the consent of the guardianship authorities will be required, since such a step may violate the rights of the children - in practice, this is practically impossible.

Features of drawing up a share agreement - what changes in terms and content?

When preparing a gift agreement for a share in living space, you should take into account some significant nuances. The deed of gift states:

1. Address of the apartment in which the share is located.
2. The size of the part of the housing donated.

If the transferred part of the housing is previously allocated in kind, then it is necessary to indicate which rooms are transferred into the possession of the minor. In this case, the kitchen, toilet, bathroom, hallway are common property.

How to draw up an agreement for donating a share of an apartment to children can be easily understood using the form and sample below:

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

Read more about the procedure and risks of registering a deed of gift for a share in an apartment here.

Methods for registering a deed of gift

You can draw up a contract for donating property to a minor with a notary or do without one by drawing up a document on the transaction yourself. If you decide to draw up a deed of gift yourself, you should know that the document is signed by both the donor and the recipient, as well as his official representative. The text of the document, written by hand, must contain information about the objects being donated, information about the documents establishing the right to them, as well as complete information about the donor and the person to whom he made the gift.

Attention! The gift deed itself has not been subject to registration since 2013!

If this is residential property, then it is subject to re-registration in the Rosreestr under the new owner. Along with the contract, the entire package of title documents for the property must be presented, as well as documents confirming the identities of the parties to the transaction.

A deed of gift drawn up by a notary is drawn up on a special form and contains, in addition to the information described above, information about the estimated value of the property. This is required in order to calculate the amount of the fee paid when certifying a transaction by a notary. The notary will also require a certificate of mental sanity of the donor.

Important! The authenticity of the document on donation of property is not required to be confirmed by a notary. It is wise to contact a notary if the donation is not made to immediate relatives. To avoid misunderstandings in the future with the donor’s relatives challenging property rights, it is better to insure such a transaction with a notarization.

Taxation on transactions

In accordance with paragraph 18.1 of Article 217 of the Tax Code of the Russian Federation, when receiving cash or in-kind income, the recipient is obliged to pay tax. Minors have no income, but they are not responsible for paying tax rates, but their adult representatives. Therefore, when receiving real estate as a gift, the parents of a gifted child are required to calculate and pay tax on the income received.

The tax is paid no later than April 30 of the year following the reporting year.

When transferring property between close relatives, taxation does not apply.

State registration of a transaction with a minor

The legislator obliges to register real estate donation transactions without exception. And even more so those where one of the participants is a minor. To do this, you need to visit the representative office of Rosreestr (Reg Chamber) at your place of residence.

Actions when registering a transaction:

• write an application for registration of property rights;
• provide documents;
• receive a document confirming their acceptance by the registrar;
• find out when the transaction will be registered;
• come in time for an extract from the Unified State Register.

Once these stages have been completed, the process of donating real estate is considered complete. The child becomes the full owner of the living space.

Documents for registration of an agreement in the Registration Chamber

It is advisable not to delay registering the deed of gift. After all, only after this procedure can be considered that the transaction will be completed and ownership rights will pass to the donee.

When visiting the Registration Chamber you must have with you:

• applications for registration of a transaction;
• three copies of the deed of gift;
• receipt for payment of state duty in the amount of 2000 rubles.

The registrar will first check all the originals and then compare them with the copies. After which the originals are returned to their owners. The representative of the donee must certify all photocopies with his own hand.

Errors, cases of refusal of registration and recognition as illegal

When drawing up a deed of gift, you cannot set additional conditions in the form of mandatory registration and residence of the donor. Such a clause transfers the document from the category of a gift to an annuity agreement, which fundamentally changes the approach to registration.

An application to register a transaction may be rejected due to a violation of the rights of one of the parties to the agreement. A registered contract can be revoked if there are serious reasons. These are considered:

1. Insanity of the donor during the signing of the papers.
2. Infliction of grievous bodily harm to the donor by the recipient.
3. Negligent attitude towards real estate.
4. Death of the recipient.

If the donor has lost all his property and does not have living space, he can also file a claim to revoke the deed of gift (how is the donation of an apartment cancelled?).

Structure of an agreement to donate an apartment to a minor child

Like any legal document, the agreement to donate an apartment to a minor child has its own structure. In addition, an important condition is that it must be in writing only.

In this case, notarization of the obligation is allowed. Certification by a notary office will create guarantees in the event of litigation, but will also entail additional costs.

In order for a deed of gift for a child to be drawn up legally, the essential conditions should be taken into account and stated in the contract.

Mandatory information in the gift agreement:

1. Date and locality where it is located.
2. Passport and contact details of the parties.
3. A detailed description of the object that is being donated, indicating all its indicators (living and total area, location, structure).
4. Details of title documents for the apartment.
5. Information about the absence of encumbrances.
6. Listing of shares and their owners that are transferred.
7. Signatures of the donor and recipient.

Usually the contract is drawn up in several copies. This is due to the fact that after registering the transaction, the deed of gift is returned to the parties, and one copy remains in Rosreestr. procedures can be considered that the process

Note! The law does not provide for an oral form of donation of an apartment. The will of the donor must be documented and registered in Rosreestr. Without this, the deal will not take place.

Can a minor dispose of property himself and why?

A child cannot dispose of property until he reaches adulthood. This rule fully applies to the donation procedure. Even with the consent of his representatives, he does not have the right to give his own share to another person, since this directly violates his legal rights.

Most often, accumulated property remains in the family by inheritance, or is given to loved ones as a gift. Which is better, a deed of gift or a will, how to conclude an agreement with the right of lifelong residence of the donor and draw up a deed of gift between spouses - you will find answers to these and other questions on our website.

General points

Donation implies the disinterested alienation of property into the possession of another person. You can give ordinary things, money, real estate, and also forgive a debt. In addition, there is the concept of a promise of donation in the future, after a certain time, or upon the occurrence of certain life circumstances.

Children by age and level of capacity are divided into:

1. Children (0-14 years old). All major transactions are made by parents for them, and they are also responsible for all the actions of the child.
2. Minors (14-18 years old). These are already quite mature individuals who are responsible for their actions. However, they carry out all real estate transactions with the consent of the parents.
3. Emancipated. From the age of 16, it is possible for a child to acquire a full range of rights and responsibilities upon marriage, or upon official employment/running a business.

Advantages and disadvantages of the agreement

You can learn about the features of the gift agreement, its pros, cons, and how to minimize risks when completing this transaction here.

A deed of gift is the best option for providing a child with real estate. The property can be used, but cannot be sold or disposed of in any other way. This restriction protects the minor owner from loss of living space.

Transaction cost

The general tax rate is 13% of the value of real estate. However, current legislation makes it possible not to pay tax if the parties to the transaction are closely related. Close relatives, according to the Family Code of the Russian Federation, include:

• husband, wife, children;
• grandparents and grandchildren;
• brothers and sisters.

From the above it follows that if an aunt gives a share in an apartment to her nephew, the latter will have to transfer 13% to the state budget. However, you can avoid unnecessary cash costs by breaking the donation transaction into two stages:

• on the first - the aunt gives a share to her brother or sister;
• on the second, the new owner enters into a donation agreement with his son.

In the described situation, both stages imply a transaction between close relatives, which will avoid paying 13% tax.

The notary participating in the transaction charges the following amounts for services:

• for drawing up a contract (from 2-3 thousand depending on the region);
• for certifying the agreement - 0.5% of the cadastral value of housing. For example, if the cost of a share is 820 thousand rubles, the price of notarization will be 4,100 rubles.

Accordingly, notarization involves increased costs, but is considered more reliable. Additionally, a state fee is paid for registering the transfer of ownership in Rosreestr. It is 2000 rubles. The burden of expense usually falls on the donor. However, sometimes the agreement of the parties provides for a different procedure.

Registration procedure

When the contract is drawn up and the documents are prepared, state registration is indispensable. This can be done directly through Rosreestr, or through an intermediary - a multifunctional center.

We leave a child who is not yet 14 years old at home, since his legal representative does everything for him. We take a teenager who already has a passport with us, since he will independently sign the documents, but in the presence and with the consent of the parent.

After filling out all the papers, the applicant is given a receipt stating that the documents have been accepted and the date is indicated when the procedure will be completed. Depending on the receiving authority (Rosreestr or MFC), the registration period will be from 7 to 9 days. After the specified period, you can receive a new extract from the Unified State Register of Real Estate, where the new owners of the property will be indicated.

Important! If the transaction is executed by a notary, then he independently submits all documents for registration. After registration is completed (1-3 days), documents can be obtained from him.

When a child is a giver

A minor can act as a donor of his property, but for this he will have to obtain the permission of his parents and guardianship.

Articles 37 and 292 of the Civil Code of the Russian Federation oblige the board of trustees to monitor the illegal alienation of owner rights by small citizens. If the decision is positive, the agreement is also signed by the guardians, regardless of the age of the son or daughter. If there is a violation or threat of violation, the transaction will not be allowed. In addition, there are other cases where a contract is declared illegal.

Controversial issues

Often, parents want to give their young child a share within the same apartment. And it turns out that the donor and the representative of the donee coincide in one person.

There is some kind of conflict here, due to which the transaction may not go through. On the one hand, guardians have the right to give gifts to the ward (paragraph 2, part 1, article 28, part 3, article 37 of the Civil Code of the Russian Federation). Another norm provides that a citizen does not have the right to enter into transactions with the person he represents (Part 3 of Article 182 of the Civil Code of the Russian Federation).

In practice, Rosreestr employees rarely accept an agreement in which one person acts on both sides at once.

There are several options for successful donation:

1. Obtain permission from the guardianship authorities to conduct such a transaction. But this does not always work out, since guardianship may also consider such a transaction a violation of the law.
2. If a child has both parents, then the second parent is indicated as the donee's representative.
3. If legally there is only one parent, then he also issues a power of attorney on behalf of the minor to a third party (for example, a grandmother), who will be included in the agreement as a representative of the donee. It is also possible to involve the guardianship authority in the transaction, whose representative, under the agreement, will accept the gift in the interests of the minor.