Rules for donating a share in an apartment

Donating a share is perhaps the easiest way to transfer part of a residential property to a relative or any other person. The main advantage is that you usually don’t need to ask anyone for permission, and the recipient receives rights to square meters only for signing the contract. Read about these and other subtleties of giving in our material.

What is a share in an apartment

An apartment can belong to several owners at once, being in their joint or shared ownership. In Russian law these are two different concepts.

What you need to know about shared ownership

Joint ownership means that the apartment is not divided into shares. For example, a couple bought and simply registered a living space for two, or a family of four privatized housing.
Shared ownership is the property of two or more people on the basis of common ownership with the determination of the share of each owner. There are many options for its appearance: spouses or close relatives can divide the housing into shares, the apartment was inherited by several relatives at once, etc.

Children can also be the legal owners of part of the home. For example, the basis for allocating a share in an apartment to a minor is its purchase using maternity capital. In this case, the child’s share in the apartment cannot be less than what is due to him by law.

After allocating a share, it must be registered in the Unified State Register of Real Estate.

In the documents, the shares are designated as ½, ⅓, ¼ of the apartment. Moreover, each owner owns not a specific part of the housing, but the entire apartment. He has the right to use any of her rooms, every centimeter, at will. Usually, share owners themselves agree on who will live in which premises. In cases where the issue cannot be resolved peacefully, the court helps. In particularly difficult situations, the share is allocated in kind, if, of course, there are technical conditions for this (it is possible to equip a hotel entrance and a personal bathroom in the room).

What happens if you don’t pay the fee to the state?

If you fail to submit your return on time. This will result in a monetary penalty. The violator will be fined 5% of the tax for each overdue month. But the sanction should not exceed 30% of the total amount.
Donation tax was not paid on time. First of all, for such a violation you will be charged a penalty for each day of delay. Its size is 1/300 of the refinancing rate of the Central Bank of the Russian Federation. The countdown will begin on July 16. In addition, the violator will face a fine of 20% of the tax.

Important! You can only be fined if the inspectors have sent a notice of delay. If you realized that you did not pay the duty before the tax authorities, pay off the debt and penalties as soon as possible. Then no one can punish you.

Text: Ksenia Antonova, Ekaterina Zhaikova

Who has the right to give and who is prohibited

To donate a share of ownership in an apartment, you need to meet several requirements:

Own housing and a share, the right to it must be registered with Rosreestr;
Be of legal age;
Be competent and mentally healthy.

Many people mistakenly believe that making such a generous gift is as difficult as selling part of the home, because other owners may object. However, in this regard, donating a share in an apartment and selling it are two different things.

To donate a share, the consent of others is not required, because it is a gratuitous transaction. That is, the donor does not receive money for it.

Sales fall into the category of compensated transactions, therefore, the disposal of shared property is permitted only with the consent of all its owners. For example, a husband will not be able to sell a share in an apartment, bypassing his wife. Moreover, this applies not only to the sale of a share in an apartment, but also to the redevelopment of housing.

How to prepare and submit a 3-NDFL tax return?

You can fill out the 3-NDFL declaration using the declaration form (see Forms and Forms). You can download samples of filling out the declaration here: Samples of filling out 3-NDFL when donating.

After completion, you must submit the 3-NDFL declaration to the tax authority at the place of your permanent registration. You can do this in person at the tax authority or send the declaration by mail with a valuable letter with a list of the attachments (more detailed information is provided in our article: How and where to submit a 3-NDFL declaration?).

List of persons who do not have the right to donate shares:

Minor children;
Citizens who are undergoing treatment, maintenance and education in hospitals, nursing homes, boarding schools, and orphanages. Their relatives will also not be able to give a share to anyone;
Representatives of young children and incapacitated citizens;
Owners of a share of an apartment pledged to credit institutions (the bank gives permission only in exceptional cases);
Owners whose share is less than the minimum amount established by law. We are talking about the minimum living space per person. The norms are prescribed in regional regulations and vary from 8 to 15 square meters. m. In this case, you cannot either sell a share in the apartment or donate it as a gift;
Commercial structures that decided to make a gift transaction among themselves. But a legal entity can make a similar gift to an individual and vice versa.

Deadlines for filing a tax return and paying taxes

The 3-NDFL declaration must be submitted to the tax office at the place of primary registration (registration) no later than April 30 of the year following the year the gift (income) was received (clause 3 of Article 228, clause 1 of Article 229 of the Tax Code of the Russian Federation).

If, as a result of the declaration, you must pay tax, then this must be done no later than July 15 of the year following the year in which the gift (income) was received .

Example: In 2021 Sychev I.A. I received a room as a gift from my niece. Since the niece, according to clause 18.1 of Art. 217 of the Tax Code of the Russian Federation, is not a close relative, then Sychev I.A. filed a 3-NDFL declaration with the tax authority by April 30, 2021 and paid income tax in the amount of 13% of the cost of the room by July 15, 2021.

You can learn about the liability and penalties for failure to submit or untimely submission of the 3-NDFL declaration, as well as non-payment of tax, in our article: Penalties for delay/failure to submit the 3-NDFL declaration or non-payment of tax.

Who can you donate a share to?

By law, a deed of gift can be issued to almost anyone. You can transfer a share in an apartment free of charge to a relative, friend, good acquaintance or a complete stranger. There are no obstacles to this, even if there is a minor co-owner.

The transaction has its own characteristics when it comes to a gift to a minor. Until the age of 14, a child will not be able to sign a donation agreement for a share of the apartment; his parents must do this for him. And from 14 to 18 years old, children sign themselves, but with the permission of their legal representatives. Otherwise, the transaction will be considered illegal.

And yet, the legislation has provided a list of persons to whom it is prohibited to give shares in apartments in order to combat corruption:

Employees of educational, medical and social institutions, if the donor is their client or a relative of the client;
Employees in state, municipal bodies, state banks, if the gift is somehow related to the performance of their official duties.

How to register a donation of an apartment?

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Do I need a notary to donate a share?

A notary is required: there are several owners in the apartment with their shares, one or two decided to give them to someone else. Notarized consent is required from the spouse if the purchase of a share in an apartment or house occurred during marriage.
A notary is not needed: all owners give shares in one transaction. The notarial consent of the spouse is not necessary if the share was given to the owner before marriage, was given as a gift, acquired as an inheritance, was privatized during marriage, or a marriage contract was drawn up, which stipulated the details of ownership of the property.

If the object is in shared ownership

Everything said above applies to the donation of an entire object. However, if it is in shared ownership, one of the co-owners may not donate the entire premises, but only his share. In this case, the process of drawing up the contract will look the same, but the recipient will be able to use the gift only together with other owners.

It should be noted that co-owners do not have the right to prevent such a donation. In the event that the gift is only a share in the right, the parties do not draw up a deed of transfer : all issues are resolved through state registration in the Unified State Register of Real Estate.

What documents are needed for the deed of gift?

For a share donation agreement, you will need the same documents as for the sale of an apartment:

Documents on the basis of which the share was received: certificate of inheritance, purchase and sale agreement, etc.;
Extract from the Unified State Register of Real Estate for residential premises;
Extract from the house register and financial and personal account;
Technical passport or explication of the apartment and floor plan;
Passports of the donor and recipient.

To quickly order an extract from the Unified State Register, use the Unified State Register Service. It is enough to indicate the cadastral number or address of the property. And you will have the finished extract in 30 minutes.

In special cases it is necessary to prepare:

Marriage certificate;
Child's birth certificate;
Notarized consent of the donor's spouse;
Documents about the relationship of the parties, if the gift is intended for a close relative;
A certificate from a psychoneurological clinic confirming the legal capacity of the parties.

The donor never pays tax

There are situations when the tax authority sends a letter to the donor, demanding that he declare income and pay tax. When receiving such a letter, there is no need to worry - the tax authority sometimes receives only data on the alienation of property, assuming that a sale has been made and you have received income. You can ignore the letter from the tax service or write an explanatory note and attach a copy of the gift agreement to it.

In the future in this article we will only consider situations where you received property or money as a gift.

Why do you need a USRN extract when donating a share and where to get it?

The list of documents for donating a share in an apartment includes an extract from the Unified State Register of Real Estate. This certificate is mandatory; without it, Rosreestr will not register the ownership of the person who received the gift. The extract from the Unified State Register indicates all owners of the apartment. The donor thereby proves his ownership of the housing or share in the apartment.

But the main point that is most important for a share donation agreement is encumbrances. The statement contains section 2 “Information on registered rights”, which reflects the presence of arrests, unpaid mortgages to the bank, bans and other restrictions. If the property is encumbered, then you cannot give even just a share to a close relative, not to mention the entire premises. The conclusion of a donation agreement for a share in the apartment or its entirety will be refused.

Ordering an extract is easy and simple if you use the services of the EGRN.Reester service. This is faster than in the offices of Rosreestr or MFC - without queues, online. It is enough to indicate the cadastral number or address of the property, and you will have a ready-made extract in half an hour.

Text: Olesya Moskevich

How to determine the price of a donated apartment and the amount of duty?

Firstly, if the cost of the apartment is specified in the gift agreement, then it will be the starting point for the tax.

Important! The specified figure must be at least 70% of the cadastral value. If inspectors consider the price to be too low, they have the right to demand payment of tax at market value.

Secondly, if they give you part of the apartment. Then 13% will be calculated from the value of the donated share of real estate .
Thirdly, if the cost of the apartment is not specified in the contract, then its price will be determined by the cadastral value. Because it is closer to the market one. Some citizens may consider it too high and enter into a dispute with the tax authorities. To do this, you need to find out the cadastral value of the apartment in advance. This is where the USRN extract comes in handy. Order it electronically and be fully prepared. The USRN extract may also be useful if you decide to check the apartment that was given to you.

Reverse action

Is it possible to give back a donated apartment? When choosing a candidate for transfer, it may also be the person who originally gave you the property . There is nothing terrible or unnatural in this, and this person may well become the recipient.

However, if you are not close relatives, this fact still does not exempt you from having to pay tax on the transfer of housing as a gift.

Find out on our website whether it is worth accepting an apartment with an encumbrance as a gift, such as a mortgage or the right of lifelong residence of the donor.

Acceptable deadlines

After what time can the donated housing be donated?

You can donate living space that has already been involved in the donation procedure once, as soon as all the documents proving the rights of the new owner to the housing have been completed. Roughly speaking, as soon as the deal is formalized.

However, there are a number of nuances, one of which concerns the conditions specified in the contract . So, for example, if the deed of gift states that the donee can take ownership only upon the achievement of certain conditions, he cannot transfer the housing as a gift until these conditions have been met.

For example, the most common case is the entry into ownership rights only upon marriage or graduation from a higher educational institution.

Read our article about the time frame within which a donor can revoke a deed of gift for an apartment.

Is it possible to give the apartment back to the donor?

Grounds for invalidating a contract

The reasons for annulment of an agreement are enshrined in the Civil Code of the Russian Federation, taking into account amendments to Federal Law No. 100 of May 7, 2013. Let us list the main pitfalls of a gift agreement, which can be forcibly terminated by a judge:

when the illegality of the transaction is revealed during the process;
detection of the fact of an imaginary transaction;
declaring the donor incompetent;
evidence that the donor was not aware of his actions.

The list of dangers associated with a gift agreement when purchasing an apartment is not limited to this list. In some cases, enshrined in Art. 578 of the Civil Code of the Russian Federation establishes the right of the donor or his heirs or even third parties to demand the cancellation of the agreement and the return of property:

Possible dangers

The most important risk when buying an apartment as a gift is that the gift itself can be canceled based on a number of circumstances. This will lead to termination of the transaction, during which the buyer may lose both the property and his money.

There is a list of circumstances under which a deed of gift is canceled at the will of the donor himself. Although there are fewer of them than when drawing up a will. These factors are enshrined in Article 578. Civil Code of the Russian Federation.

Many people are interested in when it is possible to sell an apartment after donation. By law, the new owner is first required to register the received object. You can sell real estate only after being registered in the state register. The law allows 90 days for this.

Drawing up a document

Main points

In cases where the law does not require the deed of gift to be certified by a notary, the agreement must be drawn up in writing . It will consist of the following points:

Name of the agreement, date and place of signing.
Full details of the donor - name (name for organization), address, passport details (for citizens).
The same data for the donee.
Description of the premises being donated: address, floor, area, cadastral number assigned during registration, etc.
Data on the basis on which the object belongs to the donor. If the premises were purchased before 2013, you need to indicate the details of the certificate, if later - data on the entry in the Unified State Register.
Signatures of both parties to the agreement.

Additionally, the parties may provide for other conditions. For example, a deferment of donation is allowed - in this case, the contract will indicate the period within which the premises must pass to the donee.

ATTENTION: Deferment is permissible only within the lifetime of the donor. Donation after death is unacceptable - here you need to use the rules of inheritance and will (Part 3 of Article 572).

What should you pay special attention to?

The most important clause in the contract is the one that specifies the exact characteristics of the transferred object. Without this, the agreement, by virtue of Art. 432 and 572, cannot be recognized as a prisoner.