Donating an apartment, what you need to know

All transactions are quickly completed through a notary. But not every property can be donated. Before collecting documents and contacting a notary’s office, you need to find out in more detail what nuances may exist in the donation procedure.

What is a deed of gift for real estate

A deed of gift for a residential property in an apartment building is a gratuitous agreement for the donation of an apartment with full transfer of ownership rights to the property. The gift is transferred without payment from the recipient. The subject of the agreement cannot be qualified as an object of the new or secondary housing market because it is transferred free of charge and is not the subject of purchase and sale transactions. An apartment is considered to be a residential premises located in an apartment building or in a one-story (private or public) detached building.

For reference! A deed of gift is also a transaction, but only free of charge.

Types of agreement:

Transfer without accepting payment of value for property owned by the donor.
Transfer of only the property right of ownership of the object (including with gratuitous assignments of claims).
Release of the donee from obligations towards the donor with the transfer of rights to acquire full ownership rights.
The donor accepts the debts of the donee with the consent of the creditor.

Important! A deed of gift is a gratuitous deed of transfer of ownership rights. Any demand for payment of money or provision of services is considered illegal actions of the donor.

When you can’t donate an apartment

The law prohibits the transfer of residential real estate as a gift if:

The transfer is planned to be carried out by the owner, who is a minor (up to 14 years old) or a minor (from 14 to 18 years old).
The donor is a disabled person with mental and physical limitations and is qualified as an incompetent citizen.
The recipient is a physician, an employee of an educational and pedagogical institution, an employee of an institution for the social protection of citizens in need of constant care. This also includes spouses and immediate relatives of persons representing the listed professions and serving in the listed organizations.

Note! When it is necessary to draw up a donation agreement for a residential apartment on behalf of a minor, then his guardians - parents, adoptive parents, trustees - act as donors instead.

Definition of donating an apartment

First of all, you need to understand what giving is. By definition, this is a transaction that is characterized by the fact that the donor transfers free of charge or or undertakes the obligation to transfer to the recipient a certain thing into ownership, or a property right to it. In this case, the recipient must be notified of the planned actions of the donor and have the intention to accept it as a gift. The objects of donation may include real estate, for example, an apartment, a share in an apartment, etc. The donation agreement must contain information about the location (address) and size of the living space that will be transferred.

Giving is a gratuitous transaction, that is, the one who gives has no reason to demand something in return from the one who receives. Any such demand, be it monetary compensation, assistance, etc. will be illegal.

Nuances

Many may wonder what is better - a will or a deed of gift? Here it is immediately worth clarifying that a will comes into force only after the death of the document maker, but with a deed of gift things are completely different. In addition, when drawing up a deed of gift for a house, it is necessary to take into account many nuances. For example, not all categories of citizens can transfer property in this way, and not everyone can be the drafters of the agreement. These categories of citizens include:

People who work in various government institutions - hospitals, schools, social protection institutions. Donation is prohibited even to relatives of these citizens.
Citizens who are minors cannot draw up a gift agreement. This is prohibited in any case, even if they are the property owner.
Persons who are officially recognized as legally incompetent cannot draw up a document. Even if the document is drawn up and registered, it will eventually be declared invalid.

Heirs of the donated apartment

After registration of the donation and legal registration of ownership of the recipient, he becomes the full owner of real estate - an apartment and acquires the right to dispose of it as he wishes. One of the parties has the right to challenge such a transaction. This right is also granted to third parties who have had their rights infringed as a result of its conclusion. For example, the following situation may happen: a citizen donated his apartment, and after a while he died. However, his closest relatives are convinced that their rights were violated by these actions and that they lay claim to the inheritance. In this case, they may try to challenge the already completed gift agreement. In such situations, much will depend on the circumstances in which the donor was: could he be aware of his actions? Did any relatives or acquaintances put pressure on him? In addition, it is worth considering such a moment as deception of the donor. The latter has the right to annul the donation if the recipient has taken action to attempt his life or attempted the life of his relatives, as well as when he maliciously inflicted bodily harm on the donor.

Heirs have the right to demand in court the cancellation of the donation if the recipient maliciously killed the donor.

Interesting point. A gift agreement may include a condition that if the recipient dies before the donor himself, then the latter receives the gifted item back.

In addition, the legislation regulates cases in which donation is prohibited altogether. It is not allowed to give an apartment: - on behalf of persons who have not reached 14 years of age (young children) and citizens who are recognized as legally incompetent; - employees of medical and educational institutions, social protection authorities and similar institutions - people who are treated, kept or educated there, as well as their husband (wife) or relatives.

Decor

Citizens of the Russian Federation often find themselves receiving real estate located in Belarus as a gift. For example, an aunt transfers real estate in Minsk to her nephew. And this requires a deed of gift. This document is prepared in a standard manner, but there are some differences.

A deed of gift for a house, money or other valuables in the Republic of Belarus is also a gratuitous transaction. Both parties must have legal capacity, and if the recipient is a minor, the presence of a parent or guardian is required.

The main difference between a deed of gift for an apartment in Minsk and a deed of gift drawn up in Moscow is the notarization of the document. According to Belarusian legislation, a gift agreement is drawn up in accordance with a strictly established form and must be confirmed by a notary. The agreement is then registered with the relevant government agency .

If an agreement to donate money or housing is not certified or registered, it is very easy to challenge it. When the value of real estate or the amount of donated funds exceeds 1 million Belarusian rubles, the deed of gift is drawn up in several copies. And one document remains with the notary. Also, to draw up a gift agreement for an apartment in Belarus, the consent of the other co-owners is required.

In 2021, the gift agreement must contain:

Information about the participants in the transaction. The passport details of the parties, as well as their representatives (if any), must be indicated.
Information about the subject of the donation. Address, area and other technical details.
Consent to the transaction of other co-owners of the property.

As for the payment for the procedure, the cost of notary services for close relatives is approximately 5 basic units. If the transaction is carried out between persons who are not closely related, then this amount will be from 6 to 8 basic units (the final amount depends on the urgency). For 2019, the base amount is 23 rubles.

Note: notary services and taxes are paid by the donor.

Documents required for donation

In order for an apartment donation agreement to be concluded, the personal presence of the donor and the recipient is required. At the notary they must have with them their civil passports, a copy of the personal account issued at the location of the apartment, an extract from the Unified State Register of Real Estate, rights to it and transactions with it. When the apartment was purchased by the donor during marriage, then the consent of his spouse will be required. Such consent can be prepared in advance by a notary or signed at the time of execution of the transaction. All adult family members registered in the apartment must give the same consent.

You will also need a technical passport, as well as a document that indicates ownership (court decision, sale and purchase agreement, certificate of inheritance, etc.)

All the main terms of the contract must be written down in it strictly in accordance with the law and they must not contradict it. For example, it should record the rights of persons who live in housing to use square meters after the owner has changed.

How to draw up a deed of gift for an apartment

Algorithm of actions:

Appear for an appointment with a notary (or registrar) with a package of documents.
The parties should draw up a contract with a specialist, read it carefully and sign the contract.
The notary must certify the voluntariness and legality of the transaction.
Go to the registrar - the territorial state body registering real estate to finally approve the agreement.
Come to BRTI to put a mark on the contract.

Important! The contract for the transfer of housing as a gift is subject to mandatory registration with the registrar and the BRTI. Otherwise, it simply will not be valid, and the transferred property rights will not have legal force.

The format of the contract between the parties is regulated by law - Chapter 32 of the Civil Code of the Republic of Belarus. The form is simple. You can compose it yourself, or you can contact a specialist. General concepts that govern the donation agreement for a new apartment in Belarus (or not a new one):

The donor is the real owner of the property who wishes to donate it.
The recipient is the future owner, the person to whom they want to give such a gift.
Subject – transfer of property rights free of charge.
Object – an apartment, its part or a residential building (part of it).
Essential conditions are the treatment of the object of the donation, its content, under what conditions the transfer of rights or release from onerous obligations should occur.
Additional conditions - the duration of the agreement, the rights for the heirs that the donor party can transfer to them, how the gift is returned if necessary.

Note! If the donor is just going to transfer property into full ownership free of charge, then he must indicate in the text of the agreement the period or conditions under which such a transfer will be legally carried out.

What documents are needed for the transaction?

To know how to draw up a deed of gift for an apartment, it is very important to first inquire about the contents of the package of necessary papers.

List of documents for the notary:

civil identity cards of the parties;
personal account for a residential property (confirms the absence of debts);
extract from the USRNI (Unified State Register of Real Estate);
registration certificate;
extract from the house register;
certificate of registration of property rights;
document of title - a contract of sale, exchange, gift, certificate of inheritance rights, court decision and other options;
in case of joint ownership, written consent for the gift is required from the other owner (for example, a spouse);
Consent must also be provided by all persons registered in the living space.

When submitting documentation to the registration authority, the following papers are required:

an application requesting registration of property rights;
deed of gift with a visa from a notary;
act of acceptance and transfer of the object;
receipt of payment of the state fee for registration actions.

Each document comes with one copy of it. The period for registering the new owner of the object is 5 days. The new owner must obtain from the registrar a certificate of ownership of real estate. Only after this will he be considered the full owner of the property.

The price of the issue is the cost of completing the transaction

When a deed of gift for an apartment is approved, the issue of the cost of its registration in Belarus is also important. There is a whole list of services that notaries and registrars can provide.

How much will you have to pay when you need to donate housing:

2 basic values (b.v.) – when a deed of gift for an apartment is certified between close blood relatives;
5 b.v. – donation to unauthorized individuals;
1.1 b.v. – production by a notary;
0.3 b.v. – a notary resolution with written consent from the spouse (another person related to the object);
0.6 b.v. – certificate from the registration institution;
0.6 b.v. – registration of the gift agreement;
0.5 b.v. – registration of transfer of ownership rights.

The basic rate is the minimum tariff established for all notaries or registration institutions. This also includes the state fee for registration. If the notary sends a package of papers for registration, then you will also need to pay 1.5 b.v. for this service. When speeding up the process, they charge 1.2 b.v. for urgency.

Apartment as a gift for your child

In the case when an apartment is given to a minor who has not reached the age of fourteen years (that is, a minor), the transaction can be completed by his legal representative on his behalf (one of the parents, adoptive parent or guardian). To make a gift transaction in favor of a minor over 14 years of age but under 18 years of age, the written consent of the same list of persons as in the previous case is required. They also dispose of the donated property (except for the right of alienation) until the recipient reaches 18 years of age.

How to give a share in an apartment to a relative

Mostly, real estate is given to close relatives, because no tax is paid on this type of gift. But in order to confirm close family ties, you will need to provide documents that confirm the degree of relationship.

It happens that one apartment is owned simultaneously by several owners in shares. The law allows such ownership. Each person owns their own property in shares. The same conditions apply to the donation agreement for a share of housing (apartment) as apply to the donation of the entire apartment. It is worth noting an important point. If a participant in common shared ownership wishes to donate his share, then all other co-owners do not have the right of pre-emption. Therefore, in this case, other owners will not be able to abuse their rights and create obstacles to alienation. If we are talking about donating a share of an apartment that formally belongs to one of the spouses, but is property jointly acquired during marriage - the property of the husband and wife in common, then the donation of this share requires written consent from the second spouse with its obligatory notarization.

They gave me an apartment. What to do?

One person gives, and the other must accordingly accept this gift. The gift agreement stipulates that both parties are equal. That is, one accepts the gift, and the other gives it free of charge. As a general rule, the transfer of ownership occurs from the moment of conclusion of a transaction - such a gift agreement or from the moment of its registration, in the case where the property must be registered. Such registration is carried out by a special state body. From this very moment, the owner loses ownership of the property that was donated to him. And the new copyright holder accordingly becomes the legal owner of this property.

If the recipient is not a close relative of the donor, then he must pay a fixed income tax on such a transaction.

The apartment donation agreement must be concluded in writing and registered with the state registration authorities, which are authorized to register rights to all real estate. Therefore, without registration, this type of contract is considered invalid.

Consequently, if the recipient received the desired apartment as a gift and intends to become the full owner of such a gift, he must not only agree to accept it, but also take steps to register it.

Specifics of taxation in Belarus after a gift transaction

Income tax is a levy on income. Which was received by a citizen of the Republic of Belarus. It is charged for various types of acquisition of benefits, including the acquisition of benefits when transferring real estate into ownership. In the case of a gift, the transaction is free of charge. Therefore, the following tax conditions apply here:

For the donor, the apartment donation agreement is not subject to taxes because he does not acquire any income from this transaction.
The recipient is required to pay income tax, since he receives property that has its own price, and therefore qualifies as a beneficiary.

The tax on donated housing is 12% of the value indicated in cadastral documents. This percentage is not calculated from the amount of market value because market indicators are not stable and the price level there is constantly fluctuating.

Important! If the recipient is a close relative, then no taxes will be collected from him. He is a beneficiary by rights of immediate blood relationship, which is regarded by legislators practically as inheritance.

Some subtleties of giving

The donation process may have its own specifics. These are individual cases. For example, heirs by law have the right to challenge ownership of property through the courts. But this applies only in the case of the use of violence (moral or physical) by the recipient towards the donor in order to persuade him in his favor - to force him to sign an agreement for the transfer of real estate as a gift.

In this case, the heirs must have all documented evidence of the crime. Through the court, they seek to cancel rights to real estate through donation, and then enter into inheritance rights in the order of priority determined by the law of the Republic of Belarus. Then, if desired, a donation agreement for the inherited apartment can be drawn up upon its subsequent transfer to another person.

To kid

When it is necessary to make a gift to a minor child, the transaction is carried out between the donor - the owner of the property and the child's representative - his legal guardian. These may be parents, guardians or adoptive parents.

They manage real estate until the child comes of age. To dispose of does not mean to own with full rights.

Guardians cannot sell the property, but can rent it out or pay rent and utilities. Such a transaction means that the registration of the executed agreement also takes place in the presence of representatives of the minor.

Apartment shares

If you need to make a donation agreement for a share of an apartment, in this case one main rule applies - you need written permission from the co-owners who have the right to the remaining parts of the property. This also applies to those citizens who are registered at the address where the property is located. The agreement must necessarily contain a clause regarding the rights of other owners of their shares.

Gift taxes

A donation is a transfer of property without payment. This means that the donor cannot demand or receive anything in return. Therefore, he has no obligation to pay any taxes. As mentioned above, the recipient must pay income tax after receiving property as a gift, but only when he and the donor are not close relatives. Who belongs to the category of close relatives is widely covered in special articles devoted to the problems of inheritance.

For example, if you accepted an apartment as a gift, and it belonged to your cousin (although she is a relative by blood, she is not legally included in the list of close relatives), then you must pay income tax, the amount of which is 12% according to the following formula: (for example, the cost of an apartment (according to expert estimates) is 40,000 rubles) multiplied by 12% and we get the amount of income tax.

Prohibition on donation

A deed of gift for the transfer of property or money between close relatives (as well as between people who are not relatives) has a number of restrictions. The following persons are prohibited from executing the document:

Minors.
To guardians.
Donors who transfer property to government officials who have provided them with professional services.
State representatives.
Organizations, if the recipient is also a legal entity.

These are the main restrictions that do not allow the issuance of deeds of gift.

How to properly draw up a gift agreement

According to the provisions of Chapter 32 of the Civil Code of the Republic of Belarus, a donation agreement for any real estate must be concluded in simple written form and must be registered with a territorial organization that is empowered with state registration of real estate (BRTI - agency for state registration and land cadastre).

But in addition to fulfilling the requirements of the Civil Code, it is necessary to fulfill the requirements of the Law on State Registration of Real Estate. It stipulates that an agreement in which one of the parties is an individual must be certified by a notary or registrar.

Thus, the gift agreement must be notarized (or concluded with a registrar), and then it must be registered with the BRTI.

How to sell a donated apartment in Belarus

Let us note right away that as soon as the donee receives a certificate of ownership of his apartment, he has every right to dispose of this property as he wants. That is, he can perform any legally significant legal actions. Therefore, no one can forbid him to sell this apartment. According to the current provisions of the legislation of the Republic of Belarus, when selling real estate, an individual is exempt from paying income tax, with the exception of two cases: the second sale of real estate within five years and when it is sold by a non-resident of the country.

Documentation

To donate an apartment or other property in the Republic of Belarus, the parties will need the following papers:

Written statement from the owner.
Personal documents of the parties.
Title papers.
Extract from the BTI.
Certificate of family composition.
Technical documents for the property.

The notary has the right to require the parties to the transaction to provide additional certificates.