How to correctly draw up a deed of gift for a share in an apartment, donation of a share in an apartment: procedure, state duty, documents

Conditions of donation

One of the key terms of the contract is that it is free of charge. The property owner signs over his home to the applicant and receives nothing in return. Also, the agreement should not contain counterclaims to the recipient. However, it may contain a clause on the possibility of refusing to transfer the gift.

Alienation of housing must be lifetime. If the contract contains a clause on the transfer of property after death, then it is void. Posthumous disposal of assets occurs through the execution of a will.

When alienating real estate, the deed of gift is concluded in writing. Another condition is notarial support of the transaction.

The agreement must contain a reference to the absence of arrests and encumbrances on the property. This also includes claims of third parties.

Another mandatory point is a thorough description of the characteristics of the alienated property. Additionally, you need to make reference to the acceptance of property as a gift by the beneficiary. It acts as a kind of act of reception and transmission.

Who can I donate part of the apartment to? The law does not contain any restrictions in this regard. The beneficiary can be any person - a family member, distant relative or stranger. The only requirement is the presence of legal capacity.

If property is alienated in the interests of a minor citizen, then his interests are represented by his parents. The consent of the guardianship authority is not required to complete the transaction.

Who can be a donor? There are also no significant restrictions here. Any capable person has the right to alienate his property to whomever he wishes. As for minor citizens, the written consent of the guardianship authority is required to carry out such transactions. Getting it will be extremely problematic. Typically, the executive authority does not give consent if the interests of the child are infringed. However, theoretically, the deal could take place.

Is the consent of the co-owners required for the transaction? Here we need to proceed from the property regime. For example, if the alienated housing is the joint property of two or more persons, then their resolution on the transaction will be required. If the donor's part is allocated in kind, then approval of the transaction is not required. The owner of a share of the apartment can freely enter into an agreement.

In what cases can a deal be refused?

This may happen if:

one or more documents are missing;
the contract contains errors, contradictions with current legislation, design standards;
one of the parties is incapacitated;
there is no consent to the transaction from the co-owner;
there is no consent from the board of trustees, although the rights of minors are affected.

A gift made by a guardian on behalf of a ward is considered unlawful. No matter how related they are.

Also, a citizen does not have the right to accept a gift in the form of real estate if he is a government official, doctor, nurse, manager of a medical institution or social service under the jurisdiction of the giver.

Procedure and procedure for registering a deed of gift

The preparation of a gift agreement begins with the preparation of papers. The list of documents may vary depending on the situation. One of the key documents is the written consent of the co-owners.

The next stage is the development of a draft agreement. The standard form can be downloaded from our website or taken from a notary. The second option has one drawback. It is more convenient to discuss the terms of the transaction with the recipient at home. You can also order a donation agreement for a share of an apartment from a lawyer. The advantages of this approach are obvious. The lawyer will not only listen to the wishes of the parties to the transaction, but will also advise how appropriate the specific terms of the contract are.

After agreeing on key points, the parties to the agreement must visit a notary. The link goes to the location of the property. Responsibilities of a notary:

Establishing the identity of citizens (participants in the transaction).
Verification of documents.
Clarification of the rights/responsibilities of the parties to the agreement.
Assistance in the implementation of civil rights.
Explanation of the legal consequences of the transaction.
Certificate of gift agreement.

To avoid any kind of abuse, the parties to the transaction familiarize themselves with the text of the gift agreement before signing it. After which the notary calculates the amount of the fee and issues the necessary details. After paying the state fee, the notary invites citizens to seal the transaction with their signatures and makes a notarial inscription. Data about the transaction are entered into the register. After signing the agreement, the notary reminds you of the need to register the right. We will consider below what is needed to enter information about the new owner into the Unified State Register.

List of required documents

To prepare a deed of gift, the following documents are required:

Identity card of the parties to the transaction.
Documents for the alienated share of purchased or privatized housing (extract from the Unified State Register, technical documentation).
Certificate issued at the place of residence of the donor. Sometimes the registration address differs from the location of the alienated property. Then the document is taken to the address of the apartment.
Consent of other co-owners of the property. For example, if the property is jointly owned by several citizens.
Proof of relationship. For example, a certificate of marriage or adoption of a child.
Evidence of payment of the fee.

If the parties to the agreement are relatives, then the recipient is exempt from paying personal income tax (Article 217 of the Tax Code of the Russian Federation).

State duty, cost

When registering a deed of gift, citizens bear some costs. This includes payment of state fees, notary services, and registration of rights.

The state duty is 0.5% of the value of the gift. However, the tax amount should not be less than 300 rubles. and more than 20 thousand rubles. The payer of the state duty is usually the beneficiary.

Notary services cost around 5 thousand rubles. However, rates may vary by region. Details need to be obtained from a notary.

For registration of property rights to premises in an apartment building, 200 rubles are charged. When decorating the entire apartment, the fee increases to 2 thousand rubles.

Taxes

When registering a deed of gift, the beneficiary will have to pay income tax. There are different tax rates in the Russian Federation. Residents pay 13%, non-residents – 30%

Tax deductions must be made by April 30 of the following year. The countdown begins from the moment the transaction is concluded. At the same time, the taxpayer must submit a tax return at the place of registration. Reporting is submitted to the territorial branch of the Federal Tax Service. There are penalties for late payment of taxes or filing a return.

Are there any benefits for paying personal income tax? Yes. Citizens who are related are exempt from paying tax. For example, spouses, parents/children, grandmothers/grandchildren. However, they will have to file a nil tax return.

Deadlines

The parties to the agreement have the right to draw up a gift agreement at any time. The law does not contain regulated deadlines. The parties to the transaction themselves determine the date of signing the agreement.

An exception may be the fulfillment of obligations related to the use of maternity capital. Here you need to proceed from the method and date of origin of ownership of housing. In such circumstances, the donor is given six months to complete the transaction. When calculating the period, it is necessary to take into account the requirements of Article 10 of Federal Law No. 256-FZ.

What are the deadlines for registering a right? A legally significant action must be carried out within a year. Since delaying the procedure can lead to unpleasant consequences. For example, in the event of the death of the donor, the housing will become part of the inheritance estate. The beneficiary will have to restore justice in court. Such a turn of events will lead not only to a loss of time, but also money.

It is optimal to submit papers to Rosreestr immediately after certification of the contract.

When can you arrange it yourself?

There are situations when it is not necessary to spend money on notary services. For example:

If a person solely owns an apartment, and he got it before marriage. In this case, he has the right to give or sell it at his own discretion, without asking the consent of other people;
When transferring an apartment purchased with maternity capital to children. But it is important to divide shares in the property among all children. And sometimes this can be difficult.

To avoid them, you need to either use the services of a notary, or use the right to apply to Rosreestr or the MFC. That is, an agreement is drawn up independently, which indicates what share goes to each child, and what remains to the parents. But such a document must be signed in the presence of an employee of the registration authority.

Registration of ownership

After signing the contract, the beneficiary will have to register ownership. The functions of the registrar are assigned to the Cadastral Chamber. Changes to the register occur at the request of the new owner. Attached to it:

Donation agreement.
Real estate documents.
Passports of citizens (owner of the premises and beneficiary).
Extract from the house register.
Resolution of the co-owners of the apartment (not always).
Receipt of payment of the duty.

Note. The consent of the other apartment owners is required when donating property that is jointly owned by two or more persons. If the alienated object is in shared ownership, then a resolution of the co-owners is not needed.

If the beneficiary is a young child, then his interests are represented by his parents/guardians. Therefore, the baby's birth certificate will be required. Additionally, you will need to attach confirmation of the representatives' authority. Copyright holders over 14 years of age submit documents to the registrar independently. Additionally, parental consent will be required.

The period for re-registration of documents in Rosreestr is from 5 to 12 days. Much depends on the method of filing the application and the type of action being registered. Upon completion of the procedure, the copyright holder is issued an extract from the Unified State Register.

When is it necessary to contact a notary?

However, there are several situations in which a gift transaction will not be registered without the participation of a notary. This is necessary when:

The apartment has several owners. It does not matter what share the donor has in it and to whom he gives it;
If a share of an apartment acquired during marriage is donated. That is, even if only one of the spouses is listed as its owner, the very fact of acquiring such real estate during marriage requires the consent of the other spouse to the transaction;
When one spouse gives a share in an apartment to the other spouse. In this case, the notary draws up an agreement on the division of property, which is equivalent to a marriage contract.

After the donation agreement has been certified by a notary, it must be submitted to the MFC or Rosreestr for registration. This can be done by the notary himself, but for an additional fee.

FAQ

The variety of life situations makes it impossible to consider each of them separately. However, we will try to answer the main questions that arise when registering a deed of gift for part of the housing.

Is it possible to challenge a gift agreement?

Yes. The deed of gift can be canceled by agreement of the parties or in court. There are several reasons for terminating a deal:

The financial situation of the donor greatly deteriorated after the alienation of the property.
The recipient has committed a crime against the donor.
The beneficiary is extremely careless about the property donated to him.
The donor survived the recipient.
Insanity of the owner of the property when signing the deed of gift.

One of the grounds may be specified in the contract. But such a clause does not exclude the possibility of litigation. The parties to the contract or third parties can go to court. For example, legal successors of the donor.

Example. After the death of the testator, his successors learned that the man had given his share of the apartment to his brother shortly before his death. At one time, the property was inherited by them. As a result, close relatives of the testator lost their property. The heirs filed a lawsuit to declare the contract invalid. They argued that the testator did not understand the consequences of his actions at the time of the transaction. The examination confirmed the fact of insanity. The court declared the gift agreement invalid. Previously donated property became part of the inheritance.

Is it possible to return the donated share back?

Yes. If the gift agreement contains a clause on unilateral termination of the transaction upon the occurrence of certain circumstances, then the transaction may be cancelled. It is enough for the parties to the agreement to enter into a new agreement. The procedure for its execution is the same as the initial agreement. The donor may bear the costs of the transaction.

Is it possible to sell a donated share?

Yes. After entering the data into the Unified State Register, the beneficiary becomes the owner of the property donated to him. Therefore, he can dispose of it at his own discretion. The exception is the presence of encumbrances on the apartment. For example, if the property is under mortgage. Alienation of such property is permitted only with the consent of the creditor.

Another nuance is the preemptive right of redemption. The owner of a share of the apartment must first offer to buy it out to the other owners. They are given a month to make a decision. After which the owner can alienate the property to third parties.

Minimum share

Ownership does not depend on the size of the share in the residential premises. The owner of a part of the apartment has the right to dispose of the property without any restrictions. The exception is the agreement on the alienation of one’s share of housing. For example, if the property is jointly owned by two or more persons.

The procedure for using joint property is determined by agreement of the parties (Article 246 of the Civil Code of the Russian Federation). However, if the new owner’s share is less than the size of the smallest room, then the remaining owners may raise the issue of buying out his part. If the claims are satisfied, the owner of the property is entitled to appropriate monetary compensation.

Is it possible to donate a share in a mortgaged apartment?

Yes. The law provides for the possibility of alienation of mortgaged property (Article 37 of Federal Law No. 102-FZ). The donor needs to study the loan/mortgage agreement. Sometimes creditors include a clause prohibiting the alienation of property until obligations to the bank are fully repaid. If there is no prohibition, then on the eve of the transaction the borrower will have to obtain consent to donate a share in the mortgaged apartment. Banks rarely agree to such manipulations. A positive decision of the bank may be in the following cases:

The amount of mortgage debt is insignificant.
The borrower may provide similar property as security.
There is a change of borrower. Instead of the main debtor, the recipient enters into a contractual relationship with the bank. The apartment remains pledged to the bank.

How to terminate a deed of gift for a share in an apartment

It happens that for some reason they want to terminate the deal. In the case of donating property, this is very difficult to do. But, nevertheless, there are cases when this is possible:

If it can be proven that the gift agreement was signed under duress;
If there is evidence of violent actions of the recipient towards the donor;
If the recipient of the gift has brought it to such a state that the property has fallen into disrepair and may collapse.

In any case, the decision to terminate the gift transaction can only be made by the court.

Types of powers of attorney

The law provides for the following types of powers of attorney:

One-time. A document is intended to perform a specific action. For example, obtain a certificate of absence of encumbrances or sign a gift agreement.
Special. This document gives the representative broader powers. He can perform the same type of actions for a certain time. For example, make certain payments.
General. Gives the representative maximum powers. He can receive the necessary documents, make payments, sell or donate property, sign contracts, receive money, and represent the interests of the principal in court.

The essence of each power of attorney comes down to the complete or partial release of a person from performing certain actions. To formalize a deed of gift, it is optimal to make a general power of attorney.

Text of the contract: what needs to be specified

The agreement must only be drawn up in writing - detailed confirmation of the intention and fact of donating square meters in an email does not have legal significance, as well as any oral agreements. The deed of gift must indicate the following:

• the size of the share that appears in the transaction;

• the full address of the apartment, mansion or other housing, the share in which is transferred to the recipient;

• passport information of the donor and recipient.

All this must be contained both in the contract for the entire real estate object, and in the document related to the donation of a share or allocated square meters. You need to describe the location in detail, not limiting yourself to just the address, but indicating the entrance, floor and total area of the apartment. The deed of gift must also contain information about people who are registered in the living space and have the legal right to reside in the apartment after the redistribution of property. If the document is written in such a way that its provisions can have two interpretations, the transaction will most likely be considered void.

In many cases, determining the share is not difficult. For example, if the privatization of an apartment was carried out for three people, each of them owns one third, and each of them can give this same third to other owners without judicial procedures for allocating this part in kind.

If there are any special conditions, they also need to be recorded in the deed of gift. This could be, for example, the time during which the donor will occupy the square meters, any obligations of the recipient regarding the maintenance of the home, a ban on sales or other transactions with the share until the death of the donor.