Find out on our website about the procedure for registering the transfer of an apartment as a gift between close relatives, in particular how to draw up a deed of gift and what other documents will be required. You can also find a sample agreement for donating an apartment between close relatives here.
In this article we will talk about how to carry out such a transaction as donating a share, what might be needed for this and what features does it have?
About the possibility of registration
Is it possible to draw up a contract for donating a share of living space to a wife from her husband or vice versa?
Let's talk to you about what formalities marriage entails and what features a transaction that takes place in a family has.
A registered marriage is a state of relationship between two persons during which they become a family.
Having omitted all the conventions that relate to mutual love and respect, we get a fact that suggests that from now on all property that will be acquired in marriage will be joint , regardless of whose money these purchases were made with.
The only exception is a gift transaction, that is, property received by one of the spouses as a gift from another person.
This procedure itself is reflected in the civil code, but we will talk about the justification in the law a little later. Now, let's talk a little about what the transfer of property as a gift is.
Donation is a procedure during which one person, referred to as the donor, alienates property from his property in favor of another person, that is, the donee. As a rule, the donee receives property as a gift free of charge, or subject to certain conditions. For example, do not write out the donor.
This operation can be carried out between complete strangers and relatives (read about donating a share of an apartment to a relative). The circle of persons and subjects is not limited by law. Let's look at the legal justification in detail.
Read on our website about the specifics of alienating part of the property to a minor child, in particular how to draw up an agreement to donate a share to children, including for maternity capital.
Joint property of spouses
Property acquired by spouses during marriage is recognized as their common joint property. They own, use and dispose of it together by mutual consent.
Common property includes:
- income of each spouse from work;
- income from business and intellectual activities;
- benefits and pensions that do not have a designated purpose;
- movable and immovable objects;
- shares;
- securities;
- other property acquired during the marriage.
Find out in more detail how joint property of spouses is formed.
What laws govern it?
Theoretical knowledge is not enough to carry out the procedure between spouses as competently as possible. Let's find references to this in the law.
Like any other transaction with the property of citizens and carried out between citizens, this procedure is reflected in the Civil Code .
An entire chapter 32 is devoted to it, and article 572 and subsequent norms answer the main questions.
There are no restrictions on subjects in the articles of the Civil Code, which means that a transaction can be easily carried out between married spouses.
Document form
If a couple of years ago a document could be drawn up in writing, that is, by hand, today, most likely, it will be refused acceptance.
The fact is that written paper is poorly stored, it cannot be entered into a computer database, and the text is not always easy to read by Rosreestr employees. Some words are not readable at all, thereby losing their meaning.
The printed method is acceptable for a number of reasons. Firstly, the document will be easy to read, which means that they will be able to correctly understand it, evaluate it and not call you on unnecessary questions .
Secondly, it can be easily scanned and entered into the appropriate database . This will greatly simplify archiving.
In addition, by typing on a computer, you can correct mistakes without having to retype the text.
Having a form at hand (which can be found on the Internet), you can easily fill in the information you need and speed up the time it takes to compile the paper, as well as avoid mistakes .
Find out on our website about the pros and cons of an agreement on the transfer of an apartment as a gift, its types, as well as what is better to formalize: a donation, a will or a purchase and sale.
Challenging a gift agreement
A significant disadvantage of registering a deed of gift is the ability to challenge it in court. This can be done by any interested parties, usually relatives of the husband and wife. After registering the transaction, the recipient will become the legal owner, and this object does not participate in the division of property, because will be personal, not general.
There are more chances to challenge a donation carried out “in a narrow circle”, without the involvement of specialists. When a document is drawn up at home and may contain incorrect information. In court, the plaintiff must provide compelling reasons to challenge the donation:
- Gross errors in the text of the deed of gift, not even noticed by Rosreestr employees. It is important if they are confirmed by the court.
- The recipient did not comply with the conditions regarding the content of the gift. It is not enough to donate an apartment; the new owner must take care of it, which is required by law. An important aspect will be the testimony of neighbors confirming the dissolute life of the donee, the irreparable damage he caused to the home, and a specialist’s report.
- The donor was insane or incompetent at the time the transaction was concluded (this must be documented).
- The donor was deceived or misled as to the nature of the transaction. For example, he thought about selling, but in return he signed a deed of gift.
In court, the parties are required to document their arguments by providing relevant evidence. Challenging a deed of gift is more difficult, because the donor is still alive and can indicate his position in court.
Content
Since we are talking about real estate, the deed of gift is drawn up according to the standard scheme. First, indicate the name of the document, as well as the place and date of its preparation.
Next, the parties are listed, that is, the donor and the donee, and it is also mentioned that these parties agree to complete the transaction .
The following paragraphs describe the fact of transfer, that is, what kind of real estate is transferred from the donor to the donee.
If there are any conditions, for example, the gift has been made, but the former owner remains to live in the living space, this must also be indicated.
After all the nuances are described, and you can also describe the donated property, a date is put, as well as the signatures of the parties with a transcript, thereby making it clear that the subjects agree to continue to participate in the registration.
Are there any differences from the agreement of donation of part of an apartment in the usual form? Since we are not talking about the entire apartment, but only about some part of it, it is advisable in the agreement not only to indicate the size of this part, but also what is actually included in it , so that the new owner can easily find his new property, while without encroaching on someone else's.
Gifts to each other
Gifts given during a common residence are not divided during a divorce, since things acquired as a gift are considered personal property. However, things are not always so certain. In this case, the owner should provide irrefutable evidence that a gift was made by the spouse, and for this reason, a donation document certified by a notary is drawn up for the donated car, real estate and other valuables.
If a married couple gave each other shoes, clothes, jewelry, perfume, then ownership does not need to be confirmed, since these things are considered objects of individual use. This can be done orally as many times as you like. Without a written donation agreement and witness testimony, it will be difficult to justify that this is a gift if, for example, you brought your own car, laptop computer, TV, or iPad as a gift.
Where to start, where to turn?
First of all, before you draw up a contract, you must find out the desire of the opposite party to act as the donee.
The procedure cannot be carried out if the recipient is against it or has not been notified .
After this, the parties discuss the details among themselves and proceed to the next equally important step.
Where do they apply, where to apply? When completing a transaction, you need to contact the notary chamber. There they will help you draw up a deed of gift and also certify the document. If you drew up the contract yourself, if there are errors in it, they will be pointed out to you.
It is possible to draw up an agreement without subsequently appearing before a notary, but in this case, if there is incompetence and inaccuracy in the agreement, the drawing up authority may refuse to accept the document.
Why can they refuse registration, what should I do?
Sometimes registration may be refused. There are some reasons for this:
- The contract was drawn up incorrectly or during inspection, inconsistencies were found in it.
- Information about the apartment does not match the real data:
- the area is incorrectly indicated, the cadastral number does not correspond, the layout is not reflected in the technical passport;
- The donor does not have documents confirming ownership.
If you refuse, you should understand all the errors. After eliminating them, you need to re-execute the contract and try to register it. To avoid mistakes, it is better to contact a notary immediately.
Submission of documents
What papers are required? In order to donate a share in an apartment to a spouse, the parties are required to have their passports , as well as documents on the ownership of the share in real estate and, if possible, technical documents .
Do not forget that you do not live alone in this property, and since there are co-owners, you need to obtain their written consent.
Where to submit? The collected papers, along with the agreement, are submitted to the branch of Rosreestr - the body that monitors and formalizes all transactions carried out at your place of residence.
Read our article about how to complete a transaction through the MFC.
How can spouses gift an apartment to third parties?
If spouses want to donate common property, they will have to enter into an agreement for the donation of an apartment by two owners of common joint property. In this case, the husband and wife act together as the donor. Neither of them can make such a transaction without the consent of the other.
Most often, such an agreement is drawn up in favor of close relatives, since it implies the free transfer of square meters into the possession of third parties.
The law does not prohibit such transfer in favor of other citizens. So, you can give an apartment in joint ownership to sisters, brothers, parents, children, and so on.
Consent of the spouse to complete the transaction
If the deed of gift itself is allowed to be drawn up without notarization, then the consent of the spouse must certainly be certified by a notary. In this case, a written form of the document is required.
To visit a notary, you need to prepare the following documents:
- passports of the parties;
- Marriage certificate;
- documents establishing ownership of the apartment;
- gift agreement.
Division of an apartment with transfer is one of the most common cases when it is necessary to obtain the consent of the spouse to carry out the transaction. At the same time, the legislation provides for circumstances when such permission is not necessary.
How to donate property that is in shared ownership
Donating real estate that is in shared ownership is different from selling it. As noted above, family law requires written notification to all owners of a property of the intention to sell it.
Co-owners are given a month to exercise their right of first refusal to purchase housing. If during the specified period they do not express a desire to purchase this property, it can be sold on the same conditions to other persons.
Donating a share of an apartment in shared ownership in 2021 does not require a written warning.
Consent for donation is only necessary if the property is in common joint ownership.
Also, the law does not establish a mandatory notarial form of the transaction, so you can draw up the document yourself. To do this, just download the deed of gift of shared ownership and enter your data into it.
It is worth noting that such rules apply not only to houses, apartments and other residential premises. You can donate absolutely any property owned by citizens.
Most often, due to the specifics of the subject of the gift itself, this type of agreement is drawn up specifically for real estate. In the same way, you can conclude a donation agreement for the common shared ownership of non-residential premises.
Receipt times and cost
As a rule, the document is reviewed from three to seven days . After this period, you will receive a document proving that the new owner has assumed his legal rights.
The cost of drawing up an agreement with a notary is determined by subject prices for these services.
On average in Russia, drawing up an agreement will cost you 3-4 thousand rubles.
Read our article about how much this procedure between relatives will cost.
In order to complete a transaction in Rosreest, you also need to pay a state fee, or rather a tax.
But if you are in a registered marriage, the transaction will be processed free of charge , since it is not subject to taxes between close relatives.
Failure Cases
When can they refuse? Application can be refused on the following grounds:
- the contract for the transfer of property as a gift was incorrectly drawn up;
- there is no consent of the donor to participate in the transaction;
- did not provide all the necessary documents to Rosreestr;
- one of the shareholders was against this and did not give his consent;
- you are not the owner of the property.
Is it possible to issue a deed of gift after purchasing real estate with capital capital?
Despite the fact that the apartment or part of it was purchased using maternity capital, it can be alienated in favor of the spouse, since both the mother and father of the child are full users of this subsidy from the state.
Therefore, you cannot be prohibited from alienating property in favor of a family member.
What are the pros and cons of giving a home as a gift to one of the spouses?
The advantages of this type of operation performed between halves can be:
- saving time to take possession of the living space. It is often more profitable to give than to buy;
- a gift agreement formed during marriage is difficult to cancel;
- one of the spouses has specific privileges and deductions, which will significantly save the budget, and if you are confident in your other half, you can give the entire property to him;
- transfer of property rights by deed of gift interrupts the rights of registered people and can become an impetus for the eviction of unnecessary residents (only if this is not a room in a communal apartment);
- The spouse who receives possession of the property acquires absolute rights to the gift, and it is considered individual property.
Or you can get into trouble and what will be a plus for the recipient can turn into a minus for the donor:
- the former owner loses rights and will not be able to manage the property;
- often the process is irreversible;
- in a divorce case, he will not be able to claim the right to divide this property and claim part of it.
