On what grounds can a gift agreement be challenged?

Elena asked to clarify the following situation:

“Eight years ago my grandmother gave me an apartment. The agreement stated that she had the right to live there for the rest of her life. The agreement was certified by a notary and registered. Now she has filed a claim in court with a request to return her housing and terminate the gift agreement. Tell me whether the court can recognize the gift agreement as void and deprive me of property. Do persons other than the grandmother have the right to challenge the gift transaction?

It is quite difficult to cancel a gift agreement in practice; there must be good reasons for this.

How to donate property

In order to find out on the basis of what circumstances it is possible to terminate a transaction, you need to know how the donation is made.

Donation of property, things and real estate can be expressed in the form of:

gratuitous transfer;
promise to deliver by a certain date;
exemption from the obligation to fulfill any requirement (for example, forgiveness of a debt for an apartment).

Donors can be:

citizens, including close relatives;
organizations.

For real estate donation transactions, compliance with the conditions is required (clause 3 of Article 574 of the Civil Code of the Russian Federation):

written contract;
registration of transfer of rights in Rosreestr.

The main requirement for making a gift is that the donor has ownership of the property.

Features of calculating the statute of limitations

There are features of calculating the statute of limitations that are important to consider. Among them:

The starting point depends on the plaintiff, if the transaction is contested by one of the parties and it begins from the moment when the threat to life, health or violence ceases.
If another interested party disputes the contract, then from the moment he became aware of the violation of rights.
The period can be calculated in years, months, weeks, days, hours. If the expiration date of the limitation period falls on a weekend or holiday, then the working day following it is considered final.

The limitation period may be suspended in the following cases:

If there is an emergency that cannot be overcome.
One of the parties is serving in the Armed Forces when martial law is declared.
Such suspension is enshrined in law.
If the Civil Code is suspended.

The statute of limitations under a gift agreement can be restored even if the limitation period has passed, and there must be documentary evidence of missing a court hearing. Such reasons include:

Being treated in a hospital, the stage of the disease, the disease itself does not matter.
A helpless state, including that caused by the use of drugs, alcohol, psychotropic drugs, or the death of a loved one.
Illiteracy, which implies ignorance of the Russian language and legislation. This measure is often applied to foreigners.
Caring for a sick relative.
Military service.
Serving a sentence in prison.
A profession that involves long business trips.

Time limits for recognizing a donation as void.

For claims to recognize a transaction as void, the statute of limitations is 1 year by virtue of clause 2 of Article 181, 197 of the Civil Code of the Russian Federation.

If a voidable contract is declared invalid, the claims are considered before the expiration of 3 years on the basis of clause 1 of Article 181, 196 of the Civil Code of the Russian Federation.

Claims by other persons not participating in the transaction (i.e., other than the donor and the donee) are subject to a period of 10 years (clause 1 of Article 181 of the Civil Code of the Russian Federation). For example, the applicant may be the guardianship and trusteeship authorities and other government services.

The statute of limitations is prescribed by law, but the court is obliged to accept the claim even after its expiration (Article 199 of the Civil Code of the Russian Federation). The case is terminated only if one of the parties to the process claims that the statute of limitations has passed.

Information that must be included in a lawsuit

If the resolution of the dispute reaches the court, then it is necessary to draw up a competent statement of claim, which can be done in person or with the support of a lawyer. The main requirements that will be presented to the documents are regulated in Article 131 of the Code of Civil Procedure of the Russian Federation, without compliance with which the statement of claim will be rejected by the court.

The following information must be included in the claim:

FULL NAME. parties to the agreement and information about their place of residence (including a representative, if present).
Full information about the subject of the contract, which will be the subject of proceedings in court.
Circumstances on the basis of which the applicant went to court (violation).
Mention of the evidence base in its entirety, including references to legal acts confirming the fact of violation of a particular right.
Compliance by the plaintiff with a claim or other pre-trial procedure established and regulated by law or the conditions provided for in the contract.
Signature of the statement of claim by the plaintiff or his representative indicating the date.

Also attached to the statement of claim is a receipt for payment of the state duty, an appendix with evidence (documents, audio, video, and so on), the main thing when filing is that no grounds are violated and the statute of limitations is observed .

Download: Sample statement of claim to invalidate a gift agreement (60.5 KiB, 382 hits)

Which gift agreement is considered void?

The gift agreement is recognized as void (not concluded) by virtue of clause 1 of Art. 166 of the Civil Code of the Russian Federation in the presence of the following circumstances:

General terms and Conditions:

the transaction violates the law (Article 168 of the Civil Code of the Russian Federation);
the purpose of the transaction violates the principles of morality and ethics (Article 169 of the Civil Code of the Russian Federation);
a transaction that does not imply consequences is imaginary (clause 1 of Article 170 of the Civil Code of the Russian Federation);
covering up another purpose for concluding an agreement - a sham transaction (clause 2 of Article 170 of the Civil Code of the Russian Federation);
execution of a transaction by a minor (under 14 years of age) - Article 172 of the Civil Code of the Russian Federation, by a minor (from 14 to 18 years of age) - Article 175 of the Civil Code of the Russian Federation, paragraph 1 of clause 1 of Article 575 of the Civil Code of the Russian Federation;
signing a gift agreement under the influence of a misconception (for example, a citizen signs an apartment donation agreement, not understanding that he is transferring real estate into the ownership of another person and is deprived of the right of ownership) - Article 178 of the Civil Code of the Russian Federation;
signing an agreement by a citizen with mental disorders in accordance with a medical report - Article 176 of the Civil Code of the Russian Federation, a judicial act - Article 171 of the Civil Code of the Russian Federation;
conclusion of an agreement due to threats, deception, violence against the donor - Article 179 of the Civil Code of the Russian Federation;
the gift agreement was signed by a citizen at a time when he could not control his actions (serious illness, severe emotional shock) - Art. 177 Civil Code of the Russian Federation;
improper execution of an agreement (for example, an oral agreement to donate an apartment) - Article 574 of the Civil Code of the Russian Federation;
transfer of property whose disposal is prohibited - Article 174.1, for example, an apartment under arrest by a court decision.

Special conditions:

The transfer of property as a gift is prohibited by law:

employees of children's, medical and social institutions;
state and municipal employees;
commercial organizations other organizations for the purpose of activity - making a profit.

It is prohibited to donate jointly acquired property without the consent of the spouse. Learn more about what constitutes jointly acquired property.

Donation of property on behalf of the person represented by power of attorney is not permitted. Such transactions are considered void from the moment they are completed.

Unexpected ending. Ruling of the Supreme Court of the Russian Federation No. 5-KG20-44 of 08/11/2020 in the case of a sham transaction

Sadness and melancholy are exactly the impression left after analyzing the case according to the sensational ruling of the RF Armed Forces No. 5-KG20-44 of 08/11/2020 in the case of a sham transaction

https://vsrf.ru/stor_pdf.php?id=1907662

Taking a quick look at the case, the desire of the RF Armed Forces to resolve the dispute “fairly” and protect the pensioner from attackers deserves all sorts of praise.

But when you dive deeper into it, the conclusions reached by the RF Armed Forces are puzzling.

Previously, the Determination of the RF Armed Forces was discussed on Pravo.ru

https://pravo.ru/story/225453/?desc_chrono_30_1=

And last Friday, this case was analyzed in detail by students and an expert (A.A. Pavlov) from the civil law circle of the Law School of St. Petersburg State University

.I recommend everyone who cares to watch it.

For me personally, the most interesting issue in this case was the limitation period.

I was really looking forward to Andrei Anatolyevich Pavlov’s opinion on this matter. And I was glad that my thoughts coincided with his opinion.

The issue of missing the limitation period in this case is more correctly resolved through the defendant’s bad faith. The statute of limitations begins to run from the moment Malysheva learned that her right had been violated. This happened when Guseva filed a conditional claim (the entry into force of a court decision on Guseva’s claim for unjust enrichment). Despite the fact that in this case both parties are dishonest. Since Guseva made her demands after actually waiting for the statute of limitations to expire. Her application for a deadline may be blocked with reference to Art. 10 Civil Code of the Russian Federation. Which in this case does not solve the issue of reinstating the term. Malysheva’s claim must be denied.

Case plot:

The story began in February 2009. The plaintiff, at the request of Guseva L.P. registered her daughter Pustovalova E.D. in the apartment. Due to the need for money, in November 2010 Malysheva N.A. sold to Pustovalova E.D. 1/4 share in the ownership of an apartment for RUB 1,270,000. The funds were transferred by Guseva L.P. Since the funds were transferred by Guseva L.P., in order to avoid possible further claims from Pustovalova’s husband E.D., they decided to formalize the transaction with a gift agreement, which was concluded on November 3, 2010.

On October 27, 2011, the plaintiff’s husband died. After his death, Guseva L.P. began to insist on re-registering the remaining ¾ share in the right to the apartment to her. Having received a refusal from the plaintiff, she began to demand a refund. Since the gift agreement dated November 3, 2010, concluded between N. A. Malysheva and E. D. Pustovalova, was concluded in order to cover up the purchase and sale transaction.

Case No. 2-1210/2014

November 29, 2013 Guseva L.P. sent a demand to Malysheva N.A. about the return of 1,270,000 rubles as paid erroneously. By a court decision of April 16, 2014, the specified amount was recovered as unjust enrichment from N.A. Malysheva. in favor of Guseva L.P. As Guseva L.P. pointed out. A donation agreement for ¼ share of the disputed residential premises was concluded between the parties, the funds were transferred to N.A. Malysheva. on account of the future purchase of property owned by N.A. Malysheva. shares of the disputed residential premises, Malysheva N.A. She refused the sale and did not return the money.

Further Guseva L.P. I applied several times to collect a penalty for the use of funds.

Case No. 2-239/15

10.2014 Malysheva N.A. files a claim against Pustovalova E.D. on invalidating the donation agreement for a ¼ share of an apartment concluded on November 3, 2010. In justification, he indicates that, as the owner of the apartment, in relation to ¾ of the share, on September 13, 2011, a will was drawn up in favor of the defendant E.D. Pustovalova, in relation to whose ¼ share, on November 3, 2010, a gift agreement was drawn up in favor of E.D. Pustovalova, which covered the agreement annuities. According to the agreement, the plaintiff received L.P. from the defendant’s mother and her longtime acquaintance Guseva. rent payments. Since a trusting relationship had developed between the parties, and the defendant needed residential premises in Moscow, on 02/03/2009 between the plaintiff and E.D. Pustovalova. an agreement was concluded for the transfer of use of the disputed apartment, in response to which the defendant promised to provide the plaintiff with all possible assistance and care.

The plaintiff indicated that she was a single person, needed outside care and money, had money and was solvent for the defendant Guseva L.P., who proposed instead of a rent agreement to draw up a donation agreement for a share of the disputed residential premises in order to dissolution of the marriage of her daughter Pustovalova E.D. her husband could not claim the specified residential premises as property acquired jointly during the marriage.

On January 20, 2015, in satisfaction of the claim of Malysheva N.A. the invalidation of the donation agreement for a ¼ share of an apartment dated November 3, 2010 and the application of the consequences of invalidity of the transaction were refused.

Case No. 2-4259/18

07.27.2018 Malysheva N.A. filed a lawsuit against Pustovalova E.D., Guseva L.P. in accordance with paragraph 1 of Art. 572, art. 170 of the Civil Code of the Russian Federation asked to recognize the donation agreement of ¼ share in the right to an apartment, concluded between Malysheva N.A. and Pustovalova E.D., invalid due to pretense; apply the consequences of the invalidity of a void transaction, apply the rules on the purchase and sale agreement to the transaction and transfer it to E.D. Pustovalova. rights and obligations under the purchase and sale agreement of ¼ share in the right to an apartment, with the contract price set at RUB 1,270,000. Courts of three instances rejected the claim

The Supreme Court of the Russian Federation did not agree with the decisions of the lower courts. Position of the RF Armed Forces

In accordance with paragraph 2 of paragraph 1 of Article 572 of the Civil Code of the Russian Federation, if there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. The rules provided for in paragraph 2 of Article 170 of this Code apply to such an agreement.

On the basis of sham, a transaction that is aimed at achieving other legal consequences and covers up the different will of all participants in the transaction may be declared invalid.

In accordance with paragraph 1 of Article 313 of the Civil Code of the Russian Federation (as amended in force at the time of the emergence of disputable legal relations), the fulfillment of an obligation may be assigned by the debtor to a third party, unless it follows from the law, other legal acts, the terms of the obligation or its essence that the debtor is obliged to fulfill personal commitment. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party.

A qualifying feature of a gift is the gratuitous nature of the transfer of property, which consists in the absence of reciprocal provision. Any counter-provision on the part of the donee makes the gift agreement invalid. For a grant to be considered reciprocal, it does not have to be provided for in the same agreement as the original gift; it may be the subject of a separate transaction, including with another person. In this case, there must be a causal condition of the gift by a counter-provision on the part of the donee, in the presence of which the rule on a sham transaction will apply.

The court did not bring up for discussion the question of the reason for the omission of N.A. Malysheva. statute of limitations, she was not asked to provide evidence indicating valid reasons for missing this deadline.

The issue of limitation of actions was resolved by the court of first instance in the most unexpected way.

Decision in case No. 2-4546/20 of October 15, 2020

The court referred to the failure to meet the deadline of Part 1 of Art. 204 Civil Code

Further, with reference to Art. 205 Civil Code of the Russian Federation:

The statement of claim was filed in court by Malysheva N.A. July 27, 2018. To justify the valid reasons for missing the statute of limitations, N.A. Malysheva indicated that she promptly filed a claim with the Babushkinsky District Court of Moscow to declare the gift agreement invalid as committed under the influence of deception regarding the promise of care.

Malysheva N.A. is legally illiterate, and could not foresee the refusal to satisfy her claims on the chosen legal grounds. Initially Malysheva N.A. applied to the court for protection of the violated right in 2013 within the three-year statute of limitations established by law; asks the court to restore this term to her.

Art. 205 of the Civil Code of the Russian Federation, allowing the court, within the discretionary powers necessary for the administration of justice, to determine whether the plaintiff has a valid reason for missing the statute of limitations, is aimed at protecting the rights of citizens (rulings of the Constitutional Court of the Russian Federation dated December 23, 2014 No. 2759-O and from January 26, 2021 No. 122-O).

The court takes into account that Malysheva N.A. is a pensioner, has the right to satisfy her claims to invalidate the gift agreement, based on the factual circumstances of this case.

Choosing the wrong method of protecting a violated right within the statutory limitation period does not indicate the absence of legal grounds for restoring this period. legal illiteracy among the valid circumstances for missing a deadline . The specificity of civil legal relations does not in any case imply unconditional certainty in understanding the legal qualifications of these relations.

Considering the legal complexity of the present case, the court comes to the conclusion that there are exceptional grounds for reinstating Malysheva N.A. the limitation period has been missed, and therefore this period must be restored.

So, 10 years after the transaction was completed, the court restored the statute of limitations, considering that the incorrect method of defense and legal illiteracy are sufficient grounds for this.

At the same time, all judicial acts contain information that the interests of Malysheva N.A. carried out by a representative, and not by her personally..

From the point of view of procedural law, the issue has not been resolved at all.

What about previous judicial acts that have entered into legal force? The principle of legal certainty is violated. The plaintiff exercised her right to judicial protection back in 2014. Overcoming the legal force of this court decision by initiating other legal proceedings is unacceptable.

When a gift transaction is contestable

The gift agreement is considered voidable by a court decision. This is in contrast to void transactions, which are considered invalid regardless of the presence of a judicial act, that is, by force of law.

Claims to declare a transaction voidable are filed by citizens whose rights are violated by the specified agreement. This includes both the donor himself and other citizens. For example, what is often found in practice are heirs (clause 2 of Article 166 of the Civil Code of the Russian Federation).

The legislation establishes the grounds for declaring a gift invalid - cancellation of the gift:

Attempt on life, causing bodily harm to the donor or his relatives (Clause 1 of Article 578 of the Civil Code of the Russian Federation).
Damage to property, threatening its loss. For example, careless handling of a fire - a stove in a private house (clause 2 of Article 2 of the Civil Code of the Russian Federation).
It is possible to cancel a gift transferred by an organization or an individual enterprise until bankruptcy is completed (clause 3 of Article 578 of the Civil Code of the Russian Federation).
If the donor survives the donee and this circumstance is indicated as a condition for the annulment of agreements (Article 578 of the Civil Code of the Russian Federation)

Challenging donations in shared ownership

As is known, the division of specific property and the allocation of shares of each owner presupposes a special regime for the ownership and alienation of such common joint property . So, according to paragraph 2 of Art. 576 of the Civil Code, the donation of jointly owned property should be considered legal only if such alienation is given the consent of all its co-owners and the alienation procedure provided for in Art. 253 Civil Code.

Important

According to civil law, the regime of common joint property can only operate between legal spouses (Article 34 of the Family Code) or between members of a farm (Article 7 of the Federal Law No. 74 of June 23, 2003).

Taking into account the consent of co-owners for one of them to make a donation, except in exceptional cases, should be considered nothing more than a formality. So, according to paragraph 2 of Art. 253 of the Civil Code, such consent is initially presumed (assumed), unless otherwise provided by agreement between such co-owners.

An exception to this rule is transactions for the alienation of real estate jointly owned by spouses. According to paragraph 3 of Art. 35 of the Family Code, the gift of real estate jointly owned by spouses is possible by one of them only with the notarized consent of the other spouse . In the absence of such consent, the transaction may be challenged in court on the initiative of the spouse who did not give notarized consent.

As for challenging the donation of any other joint property, the grounds for this are provided for in paragraph 3 of Art. 253 Civil Code. According to it, all co-owners of property transferred under a donation agreement have this opportunity, if the co-owner acting as a donor was deprived of the right to alienate joint property, and the donee knew about it.

Example

Citizen M., in honor of his daughter’s coming of age, decided to give her a two-room apartment, which was acquired after he entered into a new marriage with citizen S.. M., fearing the discontent of his new wife, decided to draw up a deed of gift, without notifying her. Having drawn up the agreement on their own and signed it, M. and his daughter proceeded to the state registration procedure. However, M. did not take into account that the specified apartment, since it was acquired by him while married to S., according to Art. 34 SK, is in their common joint ownership. In addition, M. did not take into account the requirements of paragraph 3 of Art. 35 of the Family Code, according to which, to alienate such joint property, he required the notarized consent of his new wife. Two days after M. submitted an application for state registration of real estate, citizen S. learned about her husband’s intentions. Being a lawyer, she knew that for such a donation to be valid, M. had to obtain her consent to alienate the apartment. Since such consent was not obtained, the contract should have been considered invalid, for which S. filed a lawsuit with the relevant demands. However, by the time the preliminary hearing was scheduled for the said claim, M. received by mail a resolution from the state registrar of the Rosreestr department, according to which he was denied registration of rights, precisely because of the lack of notarized consent of his wife.

Despite the impossibility of legal consequences arising from such an agreement, the trial still took place. Within the framework of it, S.’s demands were satisfied on the basis of Art. 168 of the Civil Code, the agreement for the donation of an apartment between M. and his daughter was declared invalid.

If the donation is declared invalid.

When a court decision is entered into declaring the gift invalid, the donee is obliged to return everything received under the contract (Article 167 of the Civil Code of the Russian Federation, clause 5 of Article 578 of the Civil Code of the Russian Federation).

Data on registered rights to an apartment, return of ownership to the donor, are entered into the Rosreestr when a judicial act is provided. The keys are returned.

Based on this information, regarding the situation with the donated apartment, we explain the following:

The court can invalidate the gift agreement at the request of the grandmother only if one of the above grounds is present: threat to life, damage to the apartment, etc.
Heirs with a mandatory share in the event of the grandmother’s death can claim rights to the apartment. The statute of limitations for this claim expires after 2 years.
When the contract is certified by a notary, the legal capacity of the citizen who is the donor of the property is checked (the notary must request from the donor certificates from the IPA and ND dispensaries). Cancellation of the transaction on the basis of Articles 176, 178, 179 of the Civil Code of the Russian Federation is excluded. Notarization is an additional guarantee of protecting the contract from being challenged in court.

Documents to challenge

Documents are submitted to the arbitration court for the purpose of initiating legal proceedings. They are submitted to the district court at the place of residence of the defendant or at the location of the disputed apartment (the plaintiff receives the right to choose).

The plaintiff will have to write a statement of claim using the form. A sample can be found on the website or at the courthouse. However, in such a complex issue, it is advisable to contact an experienced and competent specialist who will help place the necessary emphasis.

Which parties must be identified in the statement?

plaintiff(s);
defendant(s).

Next, succinctly state the circumstances under which the apartment was transferred to another person, and explain on what grounds the plaintiff considers the property transaction illegal. He needs to keep in mind that unfounded statements have no legal force.

What is stated in the claim must be supported by evidence. Therefore, the plaintiff needs to synchronize the information in the application with the available evidence of the illegality (insignificance) of the transaction.

Documents and evidence are attached to the application and are given in a list.

Two main groups of documents

1. Evidence of the legality of going to court.

2. Evidence of the illegality of the property transaction.

The first group of documents consists of establishing a family or other connection that allows a person to request annulment of the contract. These may include:

birth and marriage certificates;
evidence of ownership of the apartment;
confirmation of the guardian's representation, etc.

If property is acquired jointly in an unregistered marital relationship, then it will be extremely difficult to challenge the donation procedure. In this case, the plaintiff can be helped not by the status of a cohabitant, but by documents confirming his contribution to the donated apartment.

He must prove that he contributed his financial resources to the receipt, acquisition and maintenance by presenting:

accounts;
receipts;
witness's testimonies.

Evidence of the illegality of a property transaction may include anything that does not correspond to its legal status.

What documents confirm the inadmissibility of the transaction?

1. By a specific person if he does not have the appropriate legal status, which was hidden from the notary. For example, his incapacity, deprivation of his right to dispose of property.

2. In relation to a specific apartment that was not subject to donation. For example, the apartment was under arrest, pledged, etc.

3. The title documents were of improper form or had no legal force.

These provisions are confirmed by certificates from the relevant authorities, appeals to expert and evaluation commissions. In some cases, by requesting an examination of the donor regarding responsibility for the acts committed.

The plaintiff is required to pay the state fee and attach the payment receipt to the documents. In accordance with the new regulations adopted in 2015, the state duty is calculated according to new tariffs.

A claim for the return of an apartment is a property claim; the fee for initiating it will be a considerable amount, calculated as a percentage of the cost of the apartment and usually amounting to a maximum amount of 60 thousand rubles.

In addition to the above, evidence will be required that the plaintiff tried to resolve the issue before going to court. Such documents may include evidence sent by warning letter:

postal receipt;
inventory of attachments;
notification of receipt.

1. A donation can be challenged on the basis of reasons preventing its conclusion. In each particular case these reasons will be different.

2. You need to collect evidence to confirm your own competence to cancel the contract. And also – confirming the illegality and illegality of the transaction.

3. You need to go to court at the address of the defendant’s residence or apartment.

4. It is necessary to pay a fee to the court.

5. Confirmation of the pre-trial resolution of the issue is required.

6. The statement of claim is drawn up in a certain form, and documents are attached to it according to the number of defendants.

7. Representation of a lawyer is carried out on the basis of a power of attorney.

Is it possible to cancel an apartment donation agreement and what is necessary for this, you can find out in the following video instructions: