How to register a donation of a share in an apartment in 2021

Article updated: December 24, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. I helped 20 clients formalize the donation of their shares. In itself, the execution of a deed of gift does not depend on whether the donors are related to the recipients or not. Therefore, the instructions on this page are suitable for everyone. I divided everything into 3 main stages: 1) collect documents; 2) we draw up a gift agreement; 3) submit the agreement with documents to the MFC or the Registration Chamber to register the transaction. Parties to the transaction: donor - the one who gives his share; donee - to whom it is given.

A small digression - if you need a free consultation, write online to the lawyer on the right or call (24 hours a day, seven days a week for all regions of the Russian Federation) Moscow and the region; 8 (812) 425-62-89 — St. Petersburg and region; all regions of the Russian Federation.

Remember: if the owner wants to give his share or part of it to someone, he DOES NOT NEED to obtain the consent of other owners, nor the consent of those registered/living in the apartment, nor the permission of the guardianship authorities if one of the owners is a minor. The owner of a share can donate it to anyone in accordance with clause 2 of Art. 246 of the Civil Code of the Russian Federation. Consent is not specified either in Chapter 32 of the Civil Code of the Russian Federation on donation, or in Federal Law No. 218-FZ dated July 13, 2015, on the basis of which all real estate transactions are registered. Also, do not pay attention to paragraph 1 of Art. 246 of the Civil Code of the Russian Federation - it means that by agreement of the owners, the entire apartment is disposed of, and not a separate share of it. The exception is minor children; they cannot give their share to anyone, but only sell it - more details.

Also, when donating a share, you do not need to take into account the period of ownership. The owner can donate the property at any time and there will be no tax for him. The minimum period is taken into account only when selling. Now let's move on to step-by-step instructions.

Stages:

Stage No. 1 – collecting documents
Stage No. 2 – order a donation agreement for a share of the apartment
Stage No. 3 – Registration of the gift transaction

Stage No. 1 – collecting documents

Documents are required in originals. Below I have listed a minimum list of documents, but in each specific case additional ones may be required. The full list can be found in the help window from an MFC consultant, the Registration Chamber (UFRS) or a notary (more on this in the next section). You can also find out from our lawyer. Ask your question in the online consultant window at the bottom right of the screen or in the comments.

Follow the link to read the entire list of documents for donating a share of an apartment.

Certificate of ownership or extract from the Unified State Register for the apartment;
One of these documents is needed to make sure that the apartment or share really belongs to the donor. In addition, the data from these documents is indicated in the gift agreement itself. For example, “The donor’s ownership of the donated share is confirmed by a certificate of registration of rights: series 1111, issued on November 11, 2011 by the Office of the Federal Service for State Registration, Cadastre and Cartography of St. Petersburg.”
If the certificate is not in hand, it will be replaced by a paper extract from the Unified State Register for the apartment. How to order this extract - instructions.
Certificate of ownership
Extract from the Unified State Register of Real Estate
Passports of donors and recipients;
If the recipient is between 14 and 18 years old - his passport and the passport of one of the parents/guardian. If the recipient is under 14 years old - his birth certificate and the passport of one of the parents/guardian.
Consent of the donor's spouse certified by a notary;
It will be required in the only case - a citizen bought a share or an apartment during marriage, but registered it only in his own name. In this situation, the purchased real estate is considered the joint property of BOTH spouses, even if it was registered in the name of only one of them - clause 2 of Article 34 of the RF IC. Consent is issued only by a notary - clause 3 of Art. 35 IC RF. Costs 1,500 - 2,000 rubles. Additionally, a marriage certificate will be required.
The consent of the donor's spouse is not required: 1) The spouses bought an apartment while married, registered it as shared ownership for both of them, now one of the spouses gives his share to someone else. 2) The donor bought a share/apartment before marriage. 3) The donor received a share/apartment as an inheritance through privatization or donation. It makes no difference whether you are married or not - clause 1 of Art. 36 IC RF. 4) The donor bought a share/apartment during marriage, but the spouse signed a marriage contract excluding joint ownership - clause 1 of Art. 256 and art. 42 of the Civil Code of the Russian Federation.
Marriage or divorce certificate;
If the donor has the right of ownership of the share/apartment registered in one surname, but now has a different surname in his passport.
If a trusted person acts for one of the participants in the transaction - a notarized power of attorney. The power of attorney is certified by a notary for 1,000 - 2,000 rubles. Donors cannot issue a power of attorney for the recipient to sign a gift agreement for them, and vice versa. Because the donor and the donee cannot be the same person - clause 3 of Art. 182 of the Civil Code of the Russian Federation. They can issue a power of attorney for each other, for example, to submit a signed agreement for registration with the MFC.

Taxes after receiving real estate by gift

Receiving property as a gift is equivalent to receiving profit, so citizens who are not close relatives of the donor must submit a 3-NDFL declaration by April 30, and also pay tax by July 15 - 13% personal income tax.

If the donee is a relative of the donor (parent, child, brother, sister, grandmother, grandfather), the tax is not paid, but a declaration will have to be filed.

How to submit a 3-NDFL declaration?

Submitting a declaration is possible in several ways:

in person at the Federal Tax Service at the place of registration of the donated apartment;
through your personal account on the tax website.

The second option is much simpler and saves a lot of time. You can fill out the document through the “Declaration” program, download it and send it for verification, or enter all the data into an electronic form on the service’s website.

Sample declaration

The declaration is filled out in form 3-NDFL (1151020), approved by Order of the Federal Tax Service of Russia dated October 3, 2018 N ММВ-7-11/ [email protected]

For registration you will need information about:

date of the transaction, details of the deed of gift;
Full name, registration address, passport details of the taxpayer;
total income;
the amount of tax to be paid.

The tax is calculated independently, based on the cadastral value of the donated property - it is indicated in the deed of gift.

Sample declaration form 3-NDFL:

Stage No. 2 – order a share donation agreement

In most cases, when donating a share, an agreement is required only in a notarized form. That is, you first need to certify (certify) the contract with a notary, then submit it to the MFC or the Registration Chamber.

Therefore, read the article carefully - when is it necessary to have the agreement certified by a notary in order to donate a share?

Briefly: if there are several owners in an apartment and one of them wants to donate his share to someone, a notary is required - clause 1.1 of Art. 42 of Federal Law N 218-FZ. When an apartment is owned by one owner and he gives someone else a share, the agreement is quite simple.

If in your case a notarized contract is required, read carefully how to get it certified by a notary and how much it will cost.

In principle, you can register the entire donation transaction with a notary or simply certify the agreement at your own request, even if this is not necessary in your case. This is usually done when there is a fear that interested parties will want to challenge the transaction. For example, the heirs of the donor. The notary will act as a guarantor that the transaction was carried out according to the law.

If in your situation the contract is suitable in a simple form, using this link I will tell you how to draw it up. You will also find forms and samples there.

The gift agreement in a simple form can be signed in advance or in front of an employee at the MFC/Registration Chamber (the next stage), there is no difference. The employee does not verify the signatures. With a notarial form of agreement, it is signed only in front of a notary, because he certifies the signatures.

The number of copies depends on the number of participants in the transaction, plus one copy remains with the notary. For example, if there is one donor and one recipient, 3 copies are needed.

Beginning of the procedure for registering the gratuitous transfer of property

If a person plans to register an apartment donation agreement through the MFC in 2021, he will need to complete preparatory procedures. First of all, it is necessary to discuss all the details of the transaction with the other party to the agreement. It is necessary to warn him that he will be visiting a government agency together. Only if you agree with all the terms of the procedure can you proceed to the next stage.

Then it is necessary to check the existence of utility debts in relation to the real estate, which will be transferred free of charge. In addition, it is necessary to register all unnecessary persons who are registered on the property. The future owner may refuse to register the transaction if the apartment is encumbered. If the owner of the property does not intend to register all of its territory, this issue should also be discussed with the future owner of the premises.

Video

Stage No. 3 – Registration of the gift transaction

If the contract was certified by a notary

Then the notary is obliged to submit the registration agreement himself, free of charge and on the same day. This is already included in the service for certifying a transaction on the basis of Art. 1 of the Federal Law of August 3, 2018 N 338-FZ and Art. 22.1 Basics about notaries. Explanations of the Federal Notary Chamber - link.

Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to submit electronically, he or his assistant will submit the documents in person to the Rosreestr office within 2 business days. The registration period will last up to 3 working days after submission. All this is indicated in paragraph 9 of Art. 16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ. But due to the workload of Rosreestr, sometimes there are delays.

Participants in the transaction must pay the notary only the state fee for registering the transaction - 2000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount - instead of 2,000 rubles, you need to pay 1,400 rubles. The state fee is paid by the donee, but in practice the notary doesn’t care who gives the money.

After the transaction is registered in Rosreestr, the donee will become the new owner of the share. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.

Features of registering a deed of gift for an apartment

You can donate any real estate owned by the donor:

house,
apartment,
land plot,
commercial premises.

The transfer is carried out under a gift agreement (hereinafter - DD) - a document according to which the donor undertakes to transfer real estate to the donee without presenting counter conditions. The transaction is completely free of charge.

You cannot donate property under the condition of reciprocal transfer of money to the donee - the rules of purchase and sale apply to such transactions (Chapter 30 of the Civil Code of the Russian Federation). A similar rule is established for the recipient of real estate after the death of the donor: instead of a deed of gift in such a situation, a will must be drawn up.

The real estate donation agreement is subject to mandatory registration and is drawn up in writing. The transaction cannot be made orally, and the actual transfer of the keys to the apartment does not mean its alienation in favor of the donee - the donor can pick them up at any time. Everything must be documented.

Briefly: a deed of gift for an apartment is drawn up in writing, according to which the property is transferred free of charge. The DD is registered in Rosreestr, but documents can also be submitted to the MFC at the location of the property. This will significantly simplify the procedure and save time.

Is it possible to cancel a deed of gift?

The possibility of canceling a donation is provided for in Art. 578 of the Civil Code of the Russian Federation for several reasons:

commission of a deliberate crime by the donee against the life and health of the donor;
murder of the donor by the donee. The deed of gift is canceled by the heirs;
death of the donee before the donor, if the possibility of cancellation on this basis is provided for in the DD.

Also, the deed of gift may be canceled by the court at the request of the donor’s creditor if the deed of gift was drawn up within the last six months before filing for bankruptcy. If the creditor's demands are satisfied, the property is seized for further repayment of debts.

Arbitrage practice

When sufficient evidence is presented, claims for annulment are usually granted by the courts, as several real decisions confirm:

Decision No. 2-457/2019 2-457/2019~M-263/2019 M-263/2019 dated May 15, 2019 in case No. 2-457/2019;
Decision No. 2-162/2019 2-162/2019(2-2060/2018;)~M-469/2018 2-2060/2018 M-469/2018 dated May 7, 2021 in case No. 2-162/2019 ;
Decision No. 2-1-325/2019 2-1-325/2019~M-1-216/2019 M-1-216/2019 dated April 22, 2021 in case No. 2-1-325/2019.

The basis most often is the donee causing bodily harm to the donor after the transaction. People in such situations provide medical documents and police certificates to confirm the fact of the crime and terminate the DD through legal proceedings.