To whom does the donated apartment pass after the death of the donee?

Real estate is a valuable asset. Therefore, owners often think about who will get it after their death. The most enterprising copyright holders resolve issues related to real estate in advance. There are a lot of legal mechanisms for transferring an apartment or house into the possession of another person. The most popular way is to draw up a gift deed. Here the question arises: is the deed of gift for the apartment valid after the death of the donor. In our article we will look at the rules for drawing up this agreement.

Contract form

A deed of gift for property requires proper execution. The transaction is concluded in writing in the form of an agreement with subsequent state registration. Registration of the gift agreement is carried out in Rosreestr.

Expert opinion

Klimov Yaroslav

More than 12 years in real estate, higher legal education (Russian Academy of Justice)

Ask a Question

The document must be signed by both parties. Thus, the deed of gift is a bilateral agreement. Many people think that it is possible to issue a deed of gift unilaterally. However, it is not. The recipient must give his consent to accept the gift. Based on the above, we can conclude that the gift agreement is concluded during the lifetime of the donor and the recipient. At the time of the transaction, the parties must clearly understand the legal consequences of what is happening, and are in the status of legally capable persons.

If desired, the parties have the right to have it notarized. The advantage of notarization is that the notary initially verifies the legality of the transaction, the parties’ understanding of their intentions, and their legal capacity. In addition, the submitted documents are checked for authenticity and the object of donation for encumbrances (arrests, pledges, mortgages).

Return procedure

In order to return an apartment or other real estate, certain steps must be followed. First of all, it is necessary to choose the method by which the contract will be canceled. The gift can be returned in the following ways:

• by concluding a new donation agreement of the same property, but in relation to the donor;
• by canceling the donation by concluding an agreement in the same form in which the original agreement was concluded.

After one of these methods has been implemented, you must contact the multifunctional center with a contract or agreement, as well as the passports of the parties. After this, the registrar sends the citizens’ documents to Rosreestr and the agreement is considered cancelled.

When is the best time to apply?

Many citizens believe that a deed of gift is a document that can be concluded after the death of the donor. In fact, this opinion is wrong. If the copyright holder dies, then all the property that remains after him is inherited by his legal successors.

If there is an object such as an apartment among the inherited property, there may be several options:

• The agreement was concluded during the life of the donor.

In this case, the donee acquired the right of ownership until the death of the donor. After the death of the donor, the property remains in the possession of the donee, since he has already become the legal owner. The donated apartment will not be part of the inheritance; accordingly, legal successors cannot claim rights to it.

• The owner wanted to conclude an agreement, but did not have time to do so.

In fact, the transaction was not completed, even if the deceased had intentions to donate housing. Ownership remains with the deceased, and his successors can lay claim to the property.

There are also other situations when a number of issues arise with donated housing. For example, if a donation transaction was carried out, but subsequently the recipient died. Can the donor cancel the agreement?

Expert opinion

Klimov Yaroslav

More than 12 years in real estate, higher legal education (Russian Academy of Justice)

Ask a Question

Since the ownership right has passed to another owner - the donee - it is no longer possible to cancel the transaction. After the death of the recipient, the donated apartment will go to the heirs of the latter.

Grounds and reasons

As for the donor, it is difficult for him to backtrack after a gift; the presence of certain circumstances and reasons is required.

Learn about the cases in which you can challenge a deed of gift for an apartment, as well as the conditions under which a gift transaction can be declared invalid from our articles.

In relation to the recipient, the law does not provide for the existence of grounds, reasons, conditions: the citizen receiving living space has the right not to explain the background of his decision (Article 573 of the Civil Code of the Russian Federation).

Moreover, the reasons for a citizen’s deep-seated impulse not to take ownership of housing cannot be clarified or explained.

However, at different stages of the process, failure can be realized according to different scenarios. If the agreement was in words, or when the deed of gift is not registered, then the donee can, without any problems or consequences, not take the gift, refuse, but only in the case when the gift has not yet been accepted. Otherwise, it turns out that the transaction took place and the contract was fulfilled.

Find out whether it is worth accepting as a gift an apartment with encumbrances, for example, with the right of lifelong residence of the donor, debts and registered people, as well as a mortgage.

Can the donee refuse the gift agreement after registration?

Prohibition of donation

According to the law, in some circumstances you cannot give a gift.

These include:

• The owner's age is less than 18 years;
• The donor is declared incompetent;
• If a person who was educated or treated in a special institution wants to give a gift - to an employee of such an organization;
• If they want to give in favor of civil servants for the performance of their functional duties;
• If the donation is planned to be made between commercial enterprises.

Features and nuances

Like each legal procedure, the cancellation of a gift agreement has its own characteristics. When a gift in the form of an apartment has acquired new owners - and this happens after the registration of the agreement - it is more difficult to refuse the gift also because you will need to provide the consent of the spouse, which is not always possible to obtain.

An amateur cannot know the legal subtleties due to incomplete and unsystematic knowledge of jurisprudence, so there is no need to take risks , but it is more reliable if a professional notary with experience in such cases draws up the waiver, and they are extremely rare. This type of transaction is free of charge , but entails the need to pay tax. For close people who are related by blood, this is an excellent solution : transfer ownership of housing and not pay taxes.

During the return process, the conditions remain the same; the costs include only the state duty, the cost of the service and notary expenses. It is wise to include a cost-sharing clause in the agreement. It is not easy to cancel a gift agreement, but the law is loyal precisely to the donee , who does not need to provide reasons and evidence of convincing motivation for his action.

Who is eligible?

A claim for cancellation of a deed of gift may be submitted by:

• the donor himself - if he is faced with unlawful actions of the recipient;
• heirs of the donor - if they become aware that the donation of a share of the apartment occurred in clear violation of the law (for example, the recipient of the gift put pressure on the deceased);
• guardianship authorities - in case of violation of children's rights;
• prosecutor's office;
• other persons.

Documentation

The plaintiff-applicant has to prove the illegality of the transaction.

The following documents will be required:

• statement of claim (done by hand or on a computer);
• copy of passport + original for confirmation;
• a copy of the donation agreement;
• receipt for payment of state duty (original);
• documentary and other evidence (see below).

Take into account procedural rules - documents are submitted in the form of copies (Article 132 of the Code of Civil Procedure of the Russian Federation). Be sure to take a receipt for the acceptance of the package of documents from the court office.

Evidence base

Particular importance is given to evidence of the plaintiff’s innocence. The applicant must convince the court that the deed of gift was concluded in violation of the law.

What evidence is appropriate to attach to the claim:

• medical certificates - about the state of health (physical and mental);
• results of a forensic medical examination (FME) - the plaintiff has the right to petition the court to order such an examination;
• conclusion about the bankruptcy of the donor;
• certificate from the local police officer or law enforcement agencies;
• copies of interrogation protocols, reports of delivery to a police stronghold - in case of attacks on the life and health of the donor;
• act of inspection of housing conditions from the Housing Office and BTI - violations of the rules of residence, damage to property in the apartment;
• postcards, letters, notices;
• testimony of witnesses, work colleagues, neighbors, relatives;
• electronic correspondence (mobile phone, e-mail);
• excerpts from media publications;
• other certificates and extracts.

The stronger the evidence, the higher the chances of success in canceling the deed of gift. It is advisable not to collect information alone, but to involve relatives, family members, friends, and lawyers.

Statute of limitations

The law establishes a period during which the donor has the right to protect his interests in court - this period is considered to be the statute of limitations (Article 196 of the Civil Code of the Russian Federation).

There are no special deadlines for canceling a gift agreement - general rules apply here:

• voidable transactions – 1 year from the date of establishment of the fact;
• void, invalid donation – 3 years from the date of signing the agreement between the parties.

Missing the statute of limitations does not benefit the injured party. However, the law has a clause - if the deadline for canceling the deed of gift is missed for a good reason, the donor can restore the statute of limitations and gain the right to file a claim (Article 205 of the Civil Code of the Russian Federation). Valid reasons include threats, lack of communication with the outside world, serious illness, illiteracy, etc.

Cost, expenses

Cancellation of a deed of gift for a share in an apartment relates to ordinary claim proceedings. The applicant files a claim of a property nature that is not subject to assessment - the state duty will be 300 rubles (Article 333.19 of the Tax Code of the Russian Federation).

Judicial practice knows cases when plaintiffs paid the above amount, but the judges did not accept the claim for proceedings. The response letter with an explanation contained a requirement to pay a different amount - depending on the cadastral value of the apartment share.

Transfer of ownership

The key moment when concluding a deed of gift is the moment of transfer of ownership of the object. By giving an apartment as a gift, the owner loses all rights to this property. At what point does this happen? And when will the new owner be able to dispose of the apartment? To answer these questions, let us turn to the Civil Code.

Article 223 of the Civil Code states that the recipient’s right of ownership arises at the moment of transfer of property. However, if the property requires state registration, then the recipient will become the full rights holder after it is completed. In fact, the deed of gift comes into force after its registration.

Expert opinion

Klimov Yaroslav

More than 12 years in real estate, higher legal education (Russian Academy of Justice)

Ask a Question

There are situations when the donor dies during registration. Will there be any problems during registration? In fact, it is difficult to say unambiguously how events will develop. But there is a risk that the relatives of the deceased may appeal the deal.

When can a deed of gift for a share in an apartment be revoked?

Donation is an official civil legal procedure, the purpose of which is to officially transfer the right to an item from the donor to the donee (how to donate your share in an apartment?). Allowed solely on the initiative of the donor in accordance with the provisions of Article 572 of the Civil Code of the Russian Federation .

In this procedure, the person accepting the gift plays a passive role, which consists solely in agreeing to accept the transfer of rights to the offered thing. These legislative standards are basic and apply to both sole ownership of an object and shared ownership.

When donating a share of real estate, entry into ownership occurs only after registration of the deed of gift in the cadastral chamber.

However, after the conclusion of a civil contract, obligations arise between the parties, which call on the counterparties to the contract to fulfill the provisions formulated in the deed of gift.

IMPORTANT : If the points established by the contract are not fulfilled, the deed of gift may be revoked within the limits of the provisions of Articles 573, 575, 576 of the Civil Code of the Russian Federation.

The circumstances under which it is permissible to revoke a deed of gift for a share in an apartment on the part of the former owner may be as follows::

1. Unfair attitude towards property on the part of the new owner.
2. Unfair attitude towards the interests of the former owner, and towards the fulfillment of the terms of the concluded agreement.
3. A gross violation of moral standards towards the donor, including when donating with the condition that the former owner live in the living space alienated by the contract.
4. Criminal offenses against the health and personal freedom of the former owner of real estate, committed by the person who received the gift.
5. Any violation of civil law norms for the preparation of documentation by the receiving party (what documents are needed to prepare a deed of gift?). Including the lack of registration of the agreement in Rosreestr.

A citizen entering into ownership rights may revoke his consent to accept real rights to a share in an apartment in the event:

• Unlawful counterclaims on the part of the donor.
• If the transaction turns out to be imaginary, without the actual transfer of ownership, or if other obstacles are caused that interfere with full-fledged living in the apartment.

If the norms for concluding a transaction or the standards of civil law are violated, restitution is allowed - the return of the property rights of the parties to the state that existed before the conclusion of the transaction.

See more about revoking the deed of gift for an apartment in the video below:

Donation of an apartment with a condition

Some owners want to include “their” conditions in the gift agreement. One of these is the condition on the entry into force of the deed of gift after the death of the owner. How legitimate is such a point? Is it possible to stipulate this condition in the agreement?

The gift agreement comes into force after it is signed (Article 425 of the Civil Code of the Russian Federation). This means that by putting their signature on the document, the parties undertake to fulfill the agreed conditions: the owner to transfer the object, and the recipient to accept this gift. Thus, the condition on the entry into force of the contract after the death of the donor will be void. In other words, the document will contradict the current legislation of the Russian Federation. Therefore, to the question of whether it is possible to issue a deed of gift after the death of the donor, the answer is clear: it is impossible.

Important! If the owner insists on transferring ownership of the property to relatives only after death, then it is advisable to draw up a will for the apartment. If there is a will, the property will go to the person whom the owner designates in the will. Within six months after his death it will be necessary to enter into an inheritance.

Grounds for challenging a gift agreement

A gift agreement (hereinafter referred to as DD) is an oral or written transaction that can be challenged if there are grounds:

• failure to comply with legal requirements for registration of deeds of gift;
• donation in violation of prohibition or restriction provisions;
• sham or pretense of the transaction;
• violation of form requirements;
• lack of consent of the spouse to the alienation of common property;
• submission of demands by the creditor to cancel the deed of gift in the process of bankruptcy of the donor;
• donation by an unauthorized person, a minor;
• death of the donee before the donor;
• registration of a deed of gift under the influence of delusion, under pressure;
• commission by the donee of a crime against the life and health of the donor or his close relatives.

The grounds are listed in Art. 578 of the Civil Code of the Russian Federation, as well as Art. 166-179 Civil Code of the Russian Federation. Let's look at everything in detail with clear examples.

Violation of the terms of the gift

According to Art. 572 of the Civil Code of the Russian Federation, a deed of gift is issued without presenting counter conditions to the donee. If the donor indicates in the DD that the gift is transferred to the second party only after his death, or demands money, the agreement can be challenged.

In the first case, the rules of inheritance must be used; in the second, the transaction is recognized as imaginary, and the rules of purchase and sale are applied to it.

Often people draw up a DD instead of a purchase and sale agreement so that the seller does not have to pay taxes on the amount received from the sale of property (donors are exempt from taxation). This is an imaginary transaction that can be invalidated by the interested party.

Prohibition of donation

Violation of the rules prohibiting donation is another basis for cancellation of the deed of gift.

According to Art. 575 of the Civil Code of the Russian Federation, the transfer of a gift is prohibited in several situations:

1. On behalf of a minor (under 14 years old). The transaction is concluded by parents or other legal representatives, but challenge is possible at the initiative of the guardianship authorities.
2. On behalf of an incapacitated person.
3. To employees of medical, educational or social institutions on behalf of citizens who are there for treatment, training or maintenance.
4. To municipal or government officials, bank employees, if the transfer of the gift is related to the performance of their official powers.
5. From one legal entity engaged in commercial activities to another.

The prohibition applies to all gifts, except for items worth up to 3,000 rubles. – you can give them.

Gift Restriction

Limitations mean several things:

1. An enterprise that owns property by right of economic or operational management has the right to donate it to a third party, but with the written consent of the owner. If it is not received, the actual owner has the right to challenge the transaction.
2. Property that is jointly owned is donated with the consent of all owners.
3. The donor has the right to assume the debt obligations of the donee by gift, but with the written consent of the creditor (Article 391 of the Civil Code of the Russian Federation).

It should also be taken into account that the transaction can be made under a power of attorney for a legal representative. It must indicate information about the donee and the subject - the gift. The absence of such information entails the nullity of the transaction.

Failure to comply with the transaction form

The form is established by Art. 574 Civil Code of the Russian Federation. A written deed of gift will be needed when alienating real estate, promising a gift in the future, or transferring a gift worth more than 3,000 rubles. from a legal entity. In other cases, an oral donation is sufficient.

If the form and procedure for concluding a transaction are not followed, it is considered void, but there is no need to challenge it in court: under these circumstances, it will not be possible to re-register ownership of the gift.

A feigned or imaginary transaction

An imaginary transaction is a transaction made without the intention of creating legal consequences - transferring the property being given.

A fictitious agreement is considered to be an agreement drawn up for the purpose of covering up another transaction: purchase and sale, barter, etc. Both types are recognized as void (Article 170 of the Civil Code of the Russian Federation).

Misleading the donor

Most often, donors are misled regarding the nature of the transaction: for example, they say that in return for property they will be given money, or will be supported for life and helped in everyday matters. In the first case, the provisions of purchase and sale apply, in the second - rent.

Having learned about the deception, people turn to the courts to challenge the deed of gift, indicating the influence of the misconception as a basis for declaring the deed of gift invalid.

Example:

The grandfather gave his granddaughter a private house with a plot of land, and in return made her promise to help. The recipient assured that in this case it was the deed of gift that was being drawn up, and the man agreed to sign it.

Subsequently, the donor did not receive any help from his granddaughter, and he was told that according to the deed of gift, the property was alienated free of charge. Realizing that he had been deceived, he went to court.

The judge, taking into account his age and the circumstances of the conclusion of the DD, declared it invalid. The property was returned to the man.

Important! It is extremely problematic to challenge a deed of gift because it was drawn up under the influence of a mistake. The court takes into account all factors: the advanced age of the plaintiff, the intentional deception of the defendant, etc. A lot of evidence will be needed to confirm the validity of the claims. It is recommended to find witnesses and petition to call them.

Registration of a deed of gift under duress

Coercion – any actions of a violent nature: physical or psychological pressure, beatings, threats. If the donor manages to prove such circumstances, the DD will be declared invalid by a court decision.

Example:

An elderly woman lived with her son. He systematically beat and humiliated her. One day he told her to draw up a deed of gift for him and give him an apartment - her only home - otherwise he would beat her.

The woman signed the deed of gift, and the son became the new owner, then kicked her out of the house. She had no other real estate. Based on Art. 179 of the Civil Code of the Russian Federation, she went to court to challenge the gift agreement. The evidence includes recordings from CCTV cameras with sound, which were installed several years ago. Witnesses were also called to the meeting to confirm the man’s mistreatment of the donor, his mother.

Having studied the case, the court made a decision to declare the DD invalid. The woman re-registered the apartment in her name, the defendant lost the right of residence and was left virtually homeless.

Attempt on the health and life of the donor

Based on Art. 578 of the Civil Code of the Russian Federation, the donor has the right to demand cancellation of the transaction if the donee makes an attempt on his life or health, or the health of close relatives: spouse, parents, children, grandparents.

Legal advice: for proof, provide a valid court verdict, medical certificates, and police certificates. Unsubstantiated arguments will not be considered.

Donor's bankruptcy

Guided by paragraph 3 of Art. 578 of the Civil Code of the Russian Federation, an interested party – the donor’s creditor: bank, microfinance organization, private lender – has the right to cancel the DD. Cancellation of a deed of gift is possible if it was drawn up less than six months before the donor applied to the arbitration court to begin bankruptcy proceedings.

This possibility is explained by the fact that many citizens transfer property to relatives or friends in advance so that it is not included in the bankruptcy estate to pay off debts to creditors. Therefore, the latter, if the deadlines are met, can cancel the deed of gift - just file an application with the court.

Donation by an unauthorized person

An unauthorized person is a person or organization to whom the donated property does not belong by right of ownership. The actual owner of the gift can challenge the transaction.

Example:

A man lives with his wife and a 20-year-old guy who rents a room from them. He kept a large amount of money in his apartment - 300,000 rubles. One day the money disappeared. As a result of the investigation, it turned out that the employer gave the money to his girlfriend for a vacation trip. The transaction was made orally.

To get the money back, the man filed a theft report with the police. Based on the results of the consideration of the criminal case, the court found the defendant guilty, imposed a punishment and ordered him to pay the entire amount to the victim within the established time frame.

Note! Challenging a deed of gift in connection with a donation by an unauthorized citizen does not always involve criminal proceedings. For example, the DD can be canceled by the owner of the gift, who transferred it to the enterprise under the right of operational management and did not give consent to the transaction.

Poor treatment of gift

Based on Art. 578 of the Civil Code of the Russian Federation, the donor has the right to recognize the DD as invalid and cancel it if the donee mistreats the gift, which poses a risk of irretrievable loss. It is important that the gift has non-material value for the giver.

Spouse's consent to donate common property was not obtained

Art. 35 of the RF IC indicates: property acquired during marriage is given only with the written and notarized consent of the second spouse, if the transaction requires state registration. For example, you cannot donate real estate without permission.

However, in Rosreestr, when registering a new owner (donee), certified consent is not always required, so a person can receive real estate in violation of the terms of the law.

The responsibility for obtaining consent rests with the donor spouse. A transaction made without permission can be challenged within 1 year from the moment it became known.

The donee died before the donor

The condition for the cancellation of the DD in the event of the death of the donee must be contained in the deed of gift. If it is indicated, in such a situation the donor has the right to challenge the contract and return the property to himself.

Promise of Giving

In legal practice, a distinction is made between contracts of promise of gift. The meaning of such an agreement is that the owner promises to donate the property after the occurrence of a certain event. Moreover, it should not bring benefits to the donor. This could be the recipient’s wedding, graduation from a university, etc.

It is not uncommon for the owner to die after promising a donation. The obligations of donation are transferred to his heirs (Article 581 of the Civil Code of the Russian Federation). The heirs must carry out the will of the deceased. But if the donee dies first, then the donee’s deed of gift does not pass to his heirs. His successors cannot accept a gift in place of the recipient.

Consequences of cancellation of deed of gift

In accordance with paragraph 5 of Art. 578 of the Civil Code of the Russian Federation, after the cancellation of the deed of gift, consequences arise - the beneficiary is obliged to immediately return to the donor that part of the residential premises for which he previously executed the deed of gift, or to pay monetary compensation for this share. Then both parties will have to visit Rosreestr and make changes to the registration of ownership.

It happens that by the time the deed of gift is terminated, the recipient has already managed to sell his share or transfer it to a third party, in which case he will have to pay the donor monetary compensation in order to reimburse the value of his property. If the money for the sold share has already been spent, the plaintiff has the right to ask the court to forcibly recover the necessary funds from the defendant.

What documents are needed for donation?

To draw up a donation agreement for housing, you will need the following documents:

• Title document;
• Technical certificate;
• Home Book;
• Passports of the parties;
• Consent of the owner's spouse to the transaction.

If the owner cannot independently deal with registration issues, he can entrust this function to his representative - a person by proxy.

Important information! If minor children are registered in the residential premises that will be donated, then permission from the guardianship authorities must be obtained to conduct the transaction.

Processing times and costs

Consideration of the application with attachments and preparation of a decision takes approximately 7 working days . In any case, the date for receipt of documents will be announced after all papers are accepted and a receipt is issued for the seizure of the originals.

For state registration of a document, the applicant must pay 2 thousand rubles. upon independent application to Rosreestr. To redo the certificate you need to pay 200 rubles.

Notary services cost from 3 to 7 thousand rubles, plus for technical work you need to pay

Who owns the donated property?

The subject of the donation is personal property. He will not share in case of divorce. This is explained by the fact that no funds are spent on the acquisition of such property. Property is transferred to a specific person, which means his spouse cannot claim it. Only if something happens to the recipient will you have to enter into an inheritance. Then the donated apartment can go to the spouse - as the first-priority heir, as well as to other first-priority heirs.

Can relatives challenge the deed of gift?

It is impossible to challenge a deed of gift, drawn up and executed in accordance with all the rules, DURING THE LIFE OF THE DONOR. That is, if your grandmother, for some merit or out of personal sympathy, gave her apartment to a neighbor, and she continues to live in this apartment, then nothing can be done. The grandmother, provided that she is legally capable, disposes of any of her property herself.

In order to return a donated apartment, valid grounds are required, which the court, when considering the case, considers sufficient to invalidate the deed of gift. During the life of the donor, relatives can challenge the legality of the gift in court in the following cases:

• if the donor was officially deprived of legal capacity at the time of drawing up and signing the document
• if the person was in an inadequate state, for example, under the influence of drugs or alcohol
• if there was pressure on the donor from third parties

A donation can be challenged as violating the requirements of the law (Article 168 of the Civil Code of the Russian Federation)

1. The donor did not have the right to dispose of the disputed object

The position may be based on the absence of registered property rights; there was a judicial act invalidating the basis for the emergence of property rights (for example, the purchase and sale agreement was declared invalid). In this case, you will have to prove that he was the legal owner.

2. The donor did not obtain the consent of the spouse for the gift

If the donor gave a piece of real estate acquired during a legal marriage, without the official consent of the spouse. It is worth proving that either such consent was not required (the property was not jointly acquired), or that in fact the spouse agreed.

3. The recipient knew about the lack of consent of one of the co-owners of the object for the donation

An important question is whether the new owner initially knew that the transaction violated the legal requirement to obtain consent.

• If he knew (or it is clear that he should have known, for example, the impossibility of obtaining consent was discussed in front of him), then he is the same violator of the law as the donor.
• If he didn’t know, then he was a bona fide purchaser and was himself misled.

This means that if they demand to challenge the deed of gift because the recipient of the gift was aware of the violation of the law, in contrast it is necessary to prove that he did not know about the lack of consent to the gift of the other owners.

If the plaintiff does not provide indisputable evidence of the knowledge of the new owner, it is necessary to draw the court’s attention to the fact that there is no evidence and point out that the plaintiff’s position is unfounded and unsubstantiated.

4. If the donation is made by deceiving the donor (fraud)