Registration of a deed of gift is a civil transaction, as a result of which another person becomes the owner of the property free of charge. When concluding a contract, it is necessary to take into account the norms of current legislation. In some situations, you can donate a share in an apartment without the consent of other owners, in others it is not allowed. If a transaction does not comply with civil law, it may subsequently be declared invalid in court.
Owner's rights
The mode of ownership of property in shared ownership is regulated by Art.
246 of the Civil Code of the Russian Federation. In accordance with the law, the owner has the right to dispose of his part at his own discretion, including:
- sell;
- bequeath;
- pledge;
- give;
- exchange.
The consent of other owners is necessary for paid alienation. This requirement is due to the pre-emptive right to purchase a share from co-owners (Article 250 of the Civil Code of the Russian Federation).
Before concluding a purchase and sale transaction, the owner must obtain the consent of everyone who has rights to the property. The gift agreement is concluded free of charge, so there is no need to notify other owners about it.
How can I cancel a registered gift?
Options for eliminating the transfer of rights through donation:
- significant harm to the health of the donor, as well as his life, due to the fault of the purchaser of real estate;
- the established fact of passion at the time of the transaction.
The last point is almost impossible to prove, especially in cases with shares. After all, any actions with them from June 2, 2021 are recorded with a notary’s seal. And he, as you know, checks the capacity of clients.
REFERENCE: Changes in the legislation regarding shares affected buildings this time, but on the contrary, such an obligation for land was cancelled. A deed of gift can only be contested through court.
An example of a statement of claim to invalidate an apartment donation agreement.
Find out about possible ways to cancel and terminate a gift agreement here.
When is the consent of other owners required?
There are situations when, without the consent of the second owner, a transaction to transfer property as a gift may be declared invalid.
Written permission is required if the real estate is joint property of the spouses (Article 35 of the RF IC). Reference! Permission from the spouse is not required if the share in the apartment or house was received by will or gift, since in this situation it will not be considered common property. Consent to the execution of a deed of gift may not be issued for property obtained as a result of a voluntary or forced division of property.
Permission from the spouse will not be required for a share in an apartment that was purchased before the official registration of the relationship.
The interests of a child under 14 years of age can be represented by one of his parents. A teenager over 14 years of age has the right to independently participate in the transaction, but with the consent of their legal representatives.
Responsibility
In the case where a transaction to donate a part (share) of an apartment involves obtaining consent from other owners of this object, but such consent was not obtained, it can be either legally challenged or subject to termination in the manner established by the court.
Donating a share of an apartment is one of the most common transactions in the real estate market. The process has many nuances. A donation agreement for a share of an apartment is considered irrevocable, that is, it forever transfers ownership of the property to the donee. But any rule has a number of exceptions that must be taken into account in such cases.
Transaction procedure
The deed of gift is drawn up in a notary office (Article 574 of the Civil Code of the Russian Federation).
The document must be certified if the apartment is in common shared ownership, and one of the owners alienates his part. If, as a result of the transaction, the donee becomes the sole owner of the property (all shares are assigned to him), it is not necessary to visit a notary.
The contract does not need to be registered if it was concluded after 03/01/2013, but you will need to certify the transfer of ownership of the housing.
The step by step procedure is as follows:
- Obtaining consent to enter into a transaction from the donee.
- Preparation of documents and donation agreements.
- Obtaining the consent of other owners (if necessary).
- Certification of the agreement in a notary office (if required).
- Transfer of documents to Rosreestr.
You can prepare a deed of gift agreement yourself or use a template from a notary office.
Download a sample consent to enter into a transaction with jointly owned property
The following documents must be prepared for the notary:
- original passports of both parties to the transaction;
- gift agreement (you can draw it up yourself or order it from a notary for an additional fee;
- consent of the spouse if the applicant is married (if necessary);
- extract from the house register;
- title documents for real estate ownership;
- extract from the Unified State Register of Real Estate;
- certificate of absence of debt for utility services;
- notarized power of attorney if documents are transferred by a third party.
To register the transfer of ownership, you must contact Rosreestr or the MFC.
For the procedure you will need to prepare:
- original passports;
- receipt of payment of state duty;
- original deed of gift.
Participants in the transaction can submit documents for registration of rights through the Rosreestr website. The application must be certified by an electronic digital signature. Documents can be sent directly by a notary and signed with his digital signature.
Employees of Rosreestr or MFC will check the presence of encumbrances on the property by requesting an extract from the Unified State Register of Real Estate. Therefore, it is not necessary to provide this document in paper form.
What rights do property owners have?
Citizens have the right to buy, exchange or inherit property after the death of relatives or third parties. Confirmation of ownership is a certificate or extract from the Unified State Register. Property may be jointly or sharedly owned by several persons.
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
In the first case, the parts of the co-owners are, as it were, conditional. That is, they do not stand out in nature. The size of the share depends on the number of owners. For example, if there are four of them, then each person’s share is ¼. The joint ownership regime is usually found in families. Any property that spouses acquired during marriage becomes their joint property. And it doesn’t matter which of them the papers will be issued for. Alienation of joint property occurs only with the consent of the co-owner.
In the second case, the shares of co-owners are allocated. The owner can donate his part of the property without first obtaining the consent of the other owners.
Deadlines
The gift agreement is drawn up and certified by an official on the day of application to the notary’s office.
You can contact Rosreestr immediately or after some time, but no later than 12 months after visiting the notary. The deadlines for registering the transfer of ownership are regulated by Law No. 218-FZ of July 13, 2015.
In Rosreestr, the procedure takes 3 business days after the application is received by the department. When contacting the MFC, registration of ownership takes 5 working days.
If the owner dies before the donation process is completed, the transaction will be canceled and the share will become part of the inheritance.
Features and nuances
The agreement to donate a share of an apartment belongs to the category of gratuitous transactions. It is prohibited to include any counter-obligations.
The agreement must contain a clear and comprehensive description of the alienated property. For example, the size of part of the apartment, its area, the number of rooms in the apartment, the address of the property. Separately, you need to indicate the cadastral number and refer to the title documents.
If the transaction is concluded between third parties, then it is necessary to determine who exactly will pay the costs.
Additionally, you can provide in the contract the possibility and grounds for its termination. For example, if the donor’s financial situation worsens significantly after the alienation of the home.
The agreement must also reflect the donor’s guarantees regarding the alienated part of the apartment. There should be no liens or other encumbrances on the apartment. If there are claims from third parties, the recipient must be notified of them.
The beneficiary acquires ownership rights only after the relevant information is entered into the unified state register of rights. Confirmation of rights is an extract from the Unified State Register.
If the above points are observed, it will be extremely difficult to challenge the donation agreement for part of the apartment.
Price
The expenses (cost) of registering a transaction consist of payment for notary services and state fees for registration actions in Rosreestr.
For certification of the contract, the official must pay 0.5% of the current value of the real estate share indicated in the extract from the Unified State Register of Real Estate. The minimum cost is 300 rubles, the maximum is 20,000 rubles. Notaries may charge a fee for additional services, such as drawing up an agreement. The cost depends on the region of residence.
The state fee for registering the right to real estate is 2,000 rubles. (Article 333.33 of the Tax Code of the Russian Federation). The duty can be paid by any of the parties to the transaction. Expenses for a minor are borne by his parents.
Donation procedure
A privatized apartment is the full property of a citizen, which he has the right to dispose of in any legally accessible way.
It is quite popular among relatives and members of the same family to give a newly privatized apartment as a gift, as a result of which the property of one owner
free of charge .
To successfully carry out such a transaction, the following sequence of actions must be followed:
- Collect a package of documents that are necessary to prepare a deed of gift.
- Draw up the gift agreement itself.
The owner can prepare this document in two ways:
- on one's own;
- with the help of a notary.
The latter option is more expensive, since you will need to pay for notary services .
However, drawing up a document by a qualified lawyer is a more reliable way , because this document is subject to increased requirements.
Even if there is a small spelling error, the owner may be denied registration of the deed of gift.
An essential condition of the gift agreement is the presence in it of the designated subject of the agreement , that is, the apartment that is being donated.
This condition implies the indication of such specific characteristics of housing as:
- address;
- floor;
- square;
- cadastral number;
- number of rooms, etc.
The more complete the information regarding the apartment is, the fewer problems will arise in the future with property rights.
The collected package of documents and the contract must
be submitted for registration . To do this, you need to contact one of the following authorities:
- MFC;
- registration Chamber;
- Cadastral Chamber.
There is no significant difference between registering a deed of gift in each of these bodies - the procedure can easily be carried out in any of them.
The only requirement is that the chosen body must be located on the territory in which the donated property is located.
The drawn up contract must be certified.
You can also do this either yourself, by signing the document in person in the presence of employees of the registration authority, or by a notary.
With the help of a notary, you can not only draw up and certify an agreement, but also register it. In this case, you need to give him a package of necessary documents and pay for his services. The total cost of registering a deed of gift depends on the cost of the apartment and the fees of a particular notary.
After waiting for the transaction to be completed, it is necessary to pick up from the registration authority a certificate of ownership of the recipient of the apartment transferred to him.
The legally established period for reviewing submitted documents is 10 days.
By the appointed date, both parties to the transaction must present their passports to the registration authority, receive completed donation agreements and a new certificate of ownership.
Is it possible to cancel a deed of gift?
A deed of gift (donation agreement) can be considered illegal and invalid in accordance with Article 578 of the Civil Code of the Russian Federation, but only under certain conditions:
- The deal was concluded under pressure/threats.
- The donor was injured or even lost his life due to the deliberate actions of the recipient.
- As a result of the transaction, a certain non-property value, important for the donor, was transferred to the recipient and there is a threat of its destruction.
- The transaction is fictitious and fraudulent.
Among other things, the gift agreement may provide for a clause on the return of the object of donation to the donor in the event that he survives the recipient.
Despite the fact that the donation procedure is not particularly complicated, problems often arise related to intentional or unintentional violations of the law. In theory, they can lead to the transaction being declared invalid. This problem can be eliminated with the help of our experienced lawyers. At a free consultation, specialists will clarify the main controversial issues and can act as representatives of one side or another.
FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then
:
- describe your situation to a lawyer in an online chat;
- write a question in the form below;
- call Moscow and Moscow region
- call St. Petersburg and region
Save or share the link on social networks
(
1 ratings, average: 5.00 out of 5)
Author of the article
Natalya Fomicheva
Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.
Ask a question Author's rating
Articles written
513
- FREE for a lawyer!
Write your question, our lawyer will prepare an answer for FREE and call you back in 5 minutes.
By submitting data you agree to the Consent to PD processing, PD Processing Policy and User Agreement
Useful information on the topic
4
Eviction from official residential premises
A certain (considerable) category of citizens of the Russian Federation lives in official housing. At…
4
Can they be evicted from an apartment if there is no other housing?
Forced eviction from a residential premises is an unpleasant phenomenon, one might say...
1
Privatization of land
What is land privatization? This is the actual purchase or receipt of land...
Privatization of land in SNT using a membership book
SNT is a gardening non-profit partnership, within which the main…
Privatization of land under a private house
Despite the fact that the right to privatize land already exists...
How many times can you participate in privatization?
Privatization is a free procedure for obtaining home ownership. How many…
How to donate a share?
Often, in the privatization of an apartment, not one, but several different persons are indicated as the owner.
This means that each of them owns a share of the apartment - property that can be disposed of in the same way as other real estate.
The owner of the entire home can also donate a share in a privatized apartment to a relative, if he wants to divide his property between several people or keep a part for himself. In any of these cases, it is necessary to draw up a deed of gift.
A deed of gift for a share in a privatized apartment is drawn up according to the general rules - that is, the same as for the entire housing.
However, there should still be
some differences . In addition to standard information, this document must indicate:
- What share exactly? the apartment (or part of the share, if the owner owns only it) is transferred as a gift. The owner can donate part of his share or all of it. In this case, it is advisable to indicate the size of the gift not only as a percentage, but also in kind.
If the share of the apartment being donated is indicated only as a percentage, without being converted into a physical indicator, the recipient will be limited in the rights to it.He will only be able to use such property or also donate it, but transactions for the sale of shares in this case will not be available.
- The number of square meters of the apartment that are donated.
They are calculated from the total area of the apartment (which is indicated in the documents for it) based on two indicators: the size of the share owned by the owner; part of the share that is donated. As for the cost of such property, it is not necessary to indicate . - The number of people who are registered in the apartment or have the right to live in it, information about them.
Transactions on the disposal of shares of an apartment (not only donation, but also others) are considered quite complex among lawyers.
This is due to the fact that it is difficult to determine exactly what share of the apartment can be donated (that is, which room).
Therefore, ideally, it is better to register ownership of a share and a deed of gift for it indicating a specific room. At the same time, common areas (kitchen, bathroom, toilet) will also be available to the owner.
Read about how to donate your share in an apartment to the second owner here, and this article tells you how to donate a share to a minor.
Is it necessary to notarize the donation transaction?
No, this is not necessary. Since 1995, any owner of a share who has the consent of the other residents of the apartment has the full right to transfer his share to any other person (except for those who cannot be given a share in the apartment) without contacting a notary. At the same time, this procedure has not been cancelled. That is, it is not necessary, but it is desirable. And that's why:
- The notary will check the legal capacity of all parties, the gift agreement itself and any other features of the transaction for errors or other factors due to which the agreement could subsequently be invalidated.
- A notary can draw up an agreement himself or provide assistance in its preparation. This greatly simplifies and speeds up the procedure.
- The notary certifies the contract and, as a result, thereby confirms the fact that there is no fraud here.
Yes, the services of a notary office can cost a pretty penny, but they will help eliminate possible problems in the future. Nevertheless, the person himself can decide whether this is necessary or not. Payment for notary services can be made by both the donor and the donee, or even divided between them in any ratio.
