How to draw up a deed of gift by power of attorney - sample and norms

Giving by proxy through a representative in 2021 is a fairly common phenomenon in legal practice, which makes it possible to significantly simplify the procedure for registering a gratuitous donation if one of the parties to the deed of gift is unable to conclude a transaction for some reason.

Today one of the site’s authors, a practicing lawyer and the author of yesterday’s article on the oral form of a gift agreement, Oleg Ustinov, will talk about all the norms, rules and unobvious nuances of such a gift.

The position of the legislator and the norms of donation by proxy in 2021

Quite often, the owner of the property, acting as the initiator of the donation transaction, for certain reasons, is not able to be present during the conclusion of the deed of gift. Therefore, according to Article 182 of the Civil Code of the Russian Federation, the donor has the legal right to appoint a legal representative in his place, authorizing him to conduct a transaction on the rights received by him by issuing him a special power of attorney (Article 185 of the Civil Code of the Russian Federation).

Based on the information described in paragraph 5 of Article 576 of the Civil Code of the Russian Federation, in order to implement the above, the content of the power of attorney itself must necessarily indicate:

1. An object of donation that acts as a gift;
2. representative details.

If at least one of the points described above is missing, the power of attorney will be considered invalid, which excludes the possibility of the transaction being completed by the person claiming to be the donor.

Regarding the notarization of the document in question, it is worth noting that, according to paragraph 2 of Article 185 of the Civil Code, only those deeds of gift for which the legal representative plans to make transactions requiring mandatory notarial support are subject to mandatory notarization.

And, since in order to draw up a gift agreement, according to the current Russian legislation, certification of the agreement by a notary is not mandatory, then you don’t have to certify the power of attorney for this type of transaction at a notary’s office.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

The object of the transaction, when donated free of charge by proxy through a representative, can be any property benefits and rights not prohibited by the legislator. At the same time, such a donation, as a rule, seems appropriate only in cases where the transfer of a gift requires mandatory written form and subsequent state registration of the transfer of rights from the donor to the donee.

However, despite the possibility of using several types of forms to confirm the authority of the rights of the person acting as a representative, experienced lawyers identify as the best option the so-called one-time power of attorney, used to carry out a specific deed of gift. The contents of such a document must contain a complete list of powers transferred to the person and the subject of the transaction.

When drawing up such a power of attorney, you should remember that, based on the information specified in paragraph 3 of Article 182 of the Civil Code of the Russian Federation, the donating party cannot make the recipient its representative! After all, the same person cannot act as both parties to the donation.

Types of powers of attorney

The law allows the property owner to issue three types of powers of attorney to a third party:

• General. In this case, the owner provides the selected person with virtually unlimited freedom of action regarding his own property. However, making a gift under such a document is possible only if the name of the recipient of the gift and the property transferred to him are indicated there. If at least one of these conditions is not met, it will not be possible to donate an apartment on the basis of a general power of attorney (Clause 5, Article 576 of the Civil Code of the Russian Federation).
• Special. It allows you to perform the same type of actions over a period of time. It makes sense to issue such a power of attorney when the donation procedure involves complications: it is necessary to collect a large package of documents or represent the owner in court.
• One-time. In this case, the owner gives the right to perform a specific action on his behalf. For example, if you only need to sign an agreement, but for some reason the person cannot do it in person.

The concept of a transaction and the deed of gift in 2021

Based on the description presented in paragraph 1 of Article 572, the concept of a gift agreement is understood as an oral or written agreement, according to which one party, called the donor, voluntarily and free of charge transfers in favor of the other party, the donee, certain property benefits, rights, or releases the receiving party from the property obligations imposed on it.

The gratuitous and irrevocable nature of the transaction, at the same time, presupposes the complete absence of any counter-property representations for the received gift on the part of the donee. The presence of such a condition automatically entails the nullity of the contract and the invalidity of the transaction (according to paragraph 2 of Article 170 of the Civil Code of the Russian Federation).

Not all citizens can still participate as parties to a deed of gift in 2021. For example, based on the content of paragraph 2 of paragraph 575 of the article, , as well as legal representatives of these persons, cannot act as a donor in transactions with the value of an object exceeding 3,000 Russian rubles

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At the same time, today it is prohibited to accept expensive gifts:

• workers of social institutions;
• municipal employees;
• employees of social organizations;
• civil servants;
• medical workers.

In addition to these persons, donation is prohibited in cases of an attempt to conclude this transaction between commercial organizations (Clause 4, Article 575 of the Civil Code of the Russian Federation).

It is worth noting that, although the gift agreement is bilateral in nature, it still has unilateral obligations (the obligation of the donor to transfer the gift to the donee). In this case, as an exception, deeds of gift may act, including formal conditions for the donee (for example, while preserving the donor’s right to live in the apartment donated to him until death). However, such special conditions should not create property obligations.

Also, in Article 572 of the Civil Code of the Russian Federation, the legislator allows the conclusion of a gift agreement not only of a real gift agreement, which is executed at the time of conclusion of the transaction, but also of a consensual one, also called a gift promise agreement, according to which the donation occurs within the period specified in the agreement, in the future.

It is also perhaps worth noting the fact that the deed of gift cannot contain continuing or lasting rights and obligations that apply after the actual execution of the contract.

About the form of the gift agreement

According to the generally accepted rule, which is established by Article 574 of the Civil Code of the Russian Federation, most of the donation transactions concluded can be formalized by an oral agreement. At the same time, according to paragraphs 2 and 3 of Article 574 of the Civil Code, there are cases when such transactions must be formalized exclusively in writing. Let's look at them.

1. Donation of real estate . The mandatory written form of such deeds of gift is due to the legal consequences that arise when concluding such transactions, namely, the need to re-register property rights for the new owner (according to paragraph 1 of Article 131 of the Civil Code of the Russian Federation). State registration is carried out after the parties provide the necessary documents to Rosreestr employees.
2. In a donation transaction, a legal entity acts as a donor , and the total market value of the object of donation is more than 3,000 Russian rubles (according to paragraph 2 of Article 574). The described rule, by the way, acts as an exception to another article (Article 161 of the Civil Code of the Russian Federation), according to which every transaction concluded by a legal entity must be formalized in writing!
3. The parties draw up a consensual gift agreement . In addition to the written form, the promise of donation, according to paragraph 2 of Article 574 of the Civil Code, requires a description of the object of the gift, as well as an expression of the will of the donor to freely, irrevocably and voluntarily transfer this object within a specified period or to fulfill another obligation established in the contents of the contract (2 paragraph 572 of Article Civil Code of the Russian Federation).

Cases for refusal of registration

It happens that a trustee is refused to carry out a transaction to donate an apartment. This is possible if one of the following situations occurs:

1. The real estate donation agreement was drawn up incorrectly. If a notary was involved in drawing up the document, then this situation is excluded. However, when preparing the paper yourself, it is possible to make serious mistakes.
2. Providing an incomplete set of required documents.
3. Expiration of the trust agreement.
4. The trust agreement does not specify the powers of the trustee to conduct a transaction of donation of real estate.
5. The agreement to represent the rights of the donor was issued to the donee, which contradicts the current legislation of the Russian Federation.

When donation by power of attorney is a mandatory procedure

Donation by power of attorney through a representative in 2021, as a rule, is required in situations where the initiator of the transaction, that is, the donor, is outside the Russian Federation or cannot be present during the conclusion of this transaction for other valid reasons (for example, being in places imprisonment).

It is also natural that such a need to “substitute” persons can arise only when donating in writing with the need for further mandatory registration of the transfer of ownership from the donor to the donee. We remind you that if a deed of gift is concluded orally, these formalities do not need to be recorded.

Based on the rich experience of the lawyers of the Legal Ambulance website, we can claim that today 85% of our compatriots resort to donation by power of attorney when transferring real estate as a gift, which provides for the mandatory re-registration of ownership of the property, which is not possible if the donor is unable to be present , without his representative.

Lawyer's Note

Thus, if it is impossible for the owner to carry out the transaction of gift of property benefits, the gift can be transferred through his representative. Moreover, despite the fact that the existing legislative framework does not directly indicate the need to use a written form of agreement in such transactions, it, according to Articles 388 and 389 of the Civil Code of the Russian Federation, stems from the very legal nature of the assignment.

In addition, the transfer of rights and benefits by proxy is necessary when the donor is an organization, and its legal representatives in the person of the executive body, manager or other persons authorized by the constituent documents (Article 53 of the Civil Code of the Russian Federation, as well as paragraph 2 of Article 25.4 of the Code of Administrative Offenses of the Russian Federation ) – do not have the opportunity to make a donation, representing the interests of this company.

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Advantages and disadvantages

Drawing up an agreement to donate an apartment under a trust agreement has both positive and negative aspects.

• The advantages of such a transaction include the release of the donor from collecting the necessary papers, drawing up a deed of gift, as well as from personal presence at the transaction.
• The main disadvantages are the lack of awareness of the owner of the alienated property about the progress of the transaction, as well as the possible fraudulent behavior of the trustee to obtain his own benefit.

A power of attorney for an apartment donation agreement is the best option for the alienation of real estate in the absence of personal ability to carry out the transaction. A decent representative and a properly executed trust agreement will allow the property owner to donate an apartment with minimal hassle.

Form of power of attorney and its concept

Based on the rules and regulations described in paragraph 1 of Article 185 of the Civil Code, a power of attorney is a document according to which one party transfers authority to the other party to represent its interests, that is, to participate in transactions, as well as carry out other legally significant actions. Thus, a power of attorney must always be executed in writing, and in some special cases it must also be notarized (2 paragraph 185 of Article 185 of the Civil Code of the Russian Federation).

The document in question must be issued to the representative solely on the basis of his internal agreements with the represented person, depending on which it may be an agreement of agency, representation, employment contract, etc.

Let us immediately note that the issuance of a power of attorney refers to unilateral transactions, since it actually provides for the expression of the will of the represented person, without requiring consent from his representative. Moreover, in order to issue a power of attorney in 2021, the representative does not even have to be present.

According to the norms of the current legislation of the Russian Federation, any capable citizen has the right to issue a power of attorney, while persons with limited legal capacity (for example, children who have already turned 14, but have not yet turned 18 years old) have the right to issue a power of attorney exclusively within the framework of that legal capacity , which the legislator endowed them with (Article 26 of the Civil Code of the Russian Federation).

In addition, a power of attorney can be issued by several persons at once (for example, when concluding a transaction for the purchase and sale of real estate that is jointly owned), and the document can also be issued in relation to a group of persons.

Power of attorney is issued to both individuals and legal entities. If a document is issued by an organization, then it must be signed by its head or another competent person (5 paragraph 185 of Article 185 of the Civil Code of the Russian Federation). At the same time, this power of attorney may not be notarized.

Power of attorney requirements for gift transactions in 2021

The current legislation does not contain specific requirements set by the legislator for a power of attorney, and therefore it is customary to use the norms from Chapter 10 of the Civil Code as such, taking into account the specifics of each specific case.

• For example, based on the information specified in paragraph 1 of Article 185 of the Civil Code of the Russian Federation, a power of attorney issued by the donor to conduct a transaction for him is drawn up in writing.
• In addition, since a power of attorney is a strictly personal document, it must contain the names and names of the parties (the parties of the represented and the parties of the representative).

At the same time, the content of the power of attorney must define the nature, scope, and scope of the powers transferred to the person. Based on the fact that after the transaction has been completed there will be no point in the declared powers, it is recommended to issue a one-time power of attorney!

• Since the power of attorney is a fixed-term transaction, it would be logical to indicate in its content not only the period of its issuance, but also the validity period. However, if this clause is missing from the document, then, according to current legislation, the generally accepted validity period of 1 calendar year from the date of its issuance will be applied to it. At the same time, according to paragraph 1 of Article 186, after the expiration of the term, the power of attorney is void.
• Moreover, for powers of attorney to make a gratuitous gift, based on paragraph 5 of Article 576 of the Civil Code of the Russian Federation, it is mandatory to include in its content the subject of the gift and the name of the donee. In the absence of this data, the power of attorney will also be considered void.
• The last mandatory detail of the power of attorney in question is the signature of the donor himself. Thus, in transactions in which the donor is a legal entity, according to paragraph 5, paragraph 185 of Article of the Civil Code, such a signature must be sealed by the relevant organization.

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An example from the practice of lawyers of the website “Legal Ambulance”

Mostrest OJSC decided to donate, free of charge, the warehouse-type technical premises it had on its balance sheet in favor of Kryshstroy LLC, which assumed the responsibility to use this property to develop a help center for refugees.

To draw up the relevant documentation, the management of Mostrest sent its legal representative in the person of legal adviser Ivanov, empowering him with a power of attorney, which was personally certified by the head of the OJSC.

After signing the agreement for the donation of technical premises, the parties, in accordance with the norms of the current legislation of the Russian Federation, were obliged to proceed to the re-registration of ownership rights to the transferred/received object. To do this, the parties sent applications and documents established by the legislator for these purposes to the Rosreestr office:

• Extracts;
• title documents;
• deed of gift;
• power of attorney, etc.

Some time later, the parties received a notification from the registration authority employees refusing to register the transfer of ownership. The reason for refusal was the invalidity of the deed of gift.

At the same time, Rosreestr employees motivated their decision by the fact that the gift agreement concluded between the parties was signed by an unauthorized person on the part of the donor. These conclusions were based on non-compliance with the norms and rules for drawing up a power of attorney for making a gift - the agreement did not indicate the object of the gift and the data of the donee were not indicated.

Thus, according to paragraph 5 of Article 576 of the Civil Code of the Russian Federation, the power of attorney that was issued to Ivanov was invalid, which led to the invalidity of the entire transaction.

✅ Who can you trust with the deal?

The choice in favor of a trusted person is entirely at the discretion of the owner. He may give preference to his relative, close friend, or even a lawyer . The main requirement from the point of view of the law is adulthood and legal capacity.

A proxy cannot be:

• minors under 14 years of age and minors under 18 years of age;
• an incapacitated citizen (for example, by a court decision);
• donee (recipient of a share in the apartment).

Try to entrust the transaction to a trusted person who has a good reputation and will not use the power of attorney for personal gain. It is important to remember that housing transactions attract scammers. Approach your choice responsibly!

What is the validity period of the power of attorney for donation in 2021?

Based on the information specified in Article 186 of the Civil Code of the Russian Federation, a power of attorney is included in the category of fixed-term transactions, for which the legislator has determined a maximum validity period of 3 years. However, at the same time, the latter does not oblige the donor (that is, the one who issues the power of attorney) to comply with this period in full.

In addition, despite what is described above, in accordance with the norms of the same Article 186 of the Civil Code, the donor is required to record in the power of attorney the date of its issuance, without which the validity period of this document is reduced to 1 calendar year.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

It is worth noting that the above rule applies exclusively to special powers of attorney. Thus, if the document contains an instruction from the donor to carry out one transaction (the so-called one-time power of attorney), then its term expires immediately after all the representative powers specified in the gift have been completed, regardless of whether 1 year has passed or not.

At the same time, according to paragraph 2 of Article 186, the legislator has defined an exception, according to which a power of attorney issued to perform actions outside the Russian Federation does not have a specific period, and its validity terminates only after its cancellation.

Actions of the authorized person after receiving the power of attorney

After the trustee transfers a document giving the right to carry out transactions with property, the trustee performs the following procedure:

1. Agrees with the donee on the place and date of execution of the deed of gift.
2. When visiting a notary, a gift agreement is drawn up. It is not subject to state registration.
3. The notary issues the deed of gift.
4. The recipient goes to the MFC or Rosreestr, provides an application, deed of gift and other documents.
5. After reviewing the materials, the gifted person is given an extract from the Unified State Register or a certificate of ownership.

The cost of certifying gift agreements depends on the price of housing: up to 10,000,000 rubles. – 3,000 rub. plus 0.2%, over RUB 10,000,000. – 23,000 rub. and 0.1% of the amount exceeding RUB 10,000,000. The maximum amount of state duty, regardless of the value of the property, is RUB 50,000.

Termination of power of attorney for donation

The list of conditions under which the power of attorney we are considering today loses its force is established by paragraph 1 of Article 188 of the Civil Code of the Russian Federation. For more convenient use, they can all be divided into 3 separate groups.

1. Mutual Right to Terminate . Based on the information described in paragraphs 2 and 3 of Article 188 of the Civil Code of the Russian Federation, the represented person and his representative have the right to terminate the power of attorney unilaterally by declaring a desire to cancel the transfer/acceptance of powers.
2. According to paragraph 1 of the same article, a power of attorney may be terminated upon expiration of the period for which it was issued by the donor. This category of reasons for termination, perhaps, includes the termination of a power of attorney after the execution of a one-time power.
3. Retirement of a party . This category of grounds should include the reasons that are defined by paragraphs 4-7 of the same article (188 of the Civil Code of the Russian Federation), according to which the document in question and powers are terminated in the event of termination of the legal entity to which or by whom the power of attorney was issued. The same rule applies to individuals (for example, recognition of incapacity, death/disappearance of a representative or represented person).