As a rule, the donor transfers some property to the donee, being on good terms with him. In this case, it does not matter at all whether the parties to the transaction are relatives. However, after a while, the relationship between these citizens may be shaken. As a result, the question of canceling the donation arises. But this can only be done in a limited number of cases and, most often, through the courts. Recognizing a deed of gift as invalid is also impossible without relying on the rules established by law.
Canceling a deal
Let us consider in detail the situations in which it is possible to cancel the transaction of donating an apartment (or other real estate) by expressing the will of the donor or through litigation.
When possible
It should be noted that there is a limitation period of three years for canceling a deed of gift. The countdown begins from the moment when the donor or his relatives learn about the occurrence of one of the following circumstances:
- The donee made an attempt on the life of the donor or his relatives, attempted or caused (intentional) bodily harm to them. In the event that the crime has not been completed, the donor may, without going to court, terminate the transaction. For this purpose, his expression of will and the presentation of evidence of criminal acts or inaction are sufficient. If the donee killed the donor, the latter’s relatives are forced to file a lawsuit to cancel the donation in court.
You cannot avoid going to court in other cases:
- The donor may revoke his decision if the recipient mishandles the gift (a collection of books or jewelry, a family heirloom, etc.). However, here it will be important to prove to the court that such actions offend the feelings of the donor and are not based on the financial side of the issue;
- A third party has the right to demand that the court cancel the deed of gift in one case, when we are talking about a transaction made by a legal entity or entrepreneur no earlier than six months before he was declared bankrupt. It is understood that this person resorted to donation in order to conceal his property and make it impossible to transfer it to creditors. Such cases are heard in arbitration court if they fall under three criteria: The transaction violates the law “On Insolvency (Bankruptcy);
- The gift was allocated from funds related to the business activities of the accused person;
- The deed of gift was concluded in the six months preceding the bankruptcy;
The following video will tell you in more detail about the possibility of canceling a deed of gift for real estate:
Statement of claim
If the donor plans to cancel the transaction, he is obliged to send a claim to the donee. This paper will justify the reason for his decision, as well as put forward a proposal to terminate the contract by mutual consent.
In order for the deed of gift to be terminated unilaterally, it is necessary to apply to a court of general jurisdiction (if we are talking about a transaction made by a legal entity, then to an arbitration court) with a corresponding claim. Without a trial, the donor can terminate the transaction only if the recipient makes an attempt on his life.
Claims vary somewhat depending on the type of condition under which the gift is canceled. You can verify this by looking at the samples attached to the article.
In general, the claim consists of several parts:
- The so-called hat. Indication of the name of the court, information about the plaintiff and defendant, as well as third parties;
- The main part, which describes the circumstances that led to the decision to cancel the transaction;
- Actually the plaintiff's request;
- List of attached documents;
- Date and signature.
You can view the statement of claim for the cancellation of the gift agreement in the case where the donee intentionally deprived the donor of his life below and can also download it here.
Sample statement of claim for cancellation of a gift agreement (intentional deprivation of life)
Sample statement of claim for cancellation of a gift agreement - 1
Sample statement of claim for cancellation of a gift agreement - 2
Sample statement of claim for cancellation of a gift agreement - 3
You can view the statement of claim for cancellation of the gift agreement in other cases below and also download it here.
Sample statement of claim for cancellation of a gift agreement
Sample statement of claim for cancellation of a gift agreement - 1
Sample statement of claim for cancellation of a gift agreement - 2
Sample statement of claim for cancellation of a gift agreement - 3
Sample statement of claim for cancellation of a gift agreement - 4
Sample statement of claim for cancellation of a gift agreement - 5
Next, we will talk about how to cancel a donation agreement for a share in an apartment.
Real estate share
The procedure for canceling a donation agreement for a share of an apartment is no different from canceling the donation of other property.
If, at the time of the decision to cancel the donation, the share of the apartment belongs to the donee, he is obliged to return it to the donor. If it was sold or otherwise transferred to a third party, the recipient will be forced to pay the donor material compensation in the amount of the value of the gift.
The following video contains advice from a well-known lawyer on the issue of canceling an apartment donation transaction:
Entry of a court decision into legal force
The entry into force of a court decision is regulated by the provisions of Art. 209 of the Civil Procedure Code (Civil Procedure Code) of the Russian Federation. In accordance with paragraph 1 of this article, a court decision comes into force after the end of the period established for its appeal or cassation appeal, if it has not been appealed by the parties to the case or its participants.
Additionally
If, for example, an appeal is filed against a decision of a district court within the time limits established by the Code of Civil Procedure, and the appealed decision is not overturned by a higher court, then it comes into force after consideration of the appeal . If the decision of the district court is canceled (changed) and a new one is adopted, then it comes into force immediately.
After the decision comes into force, none of the parties and participants in the process can present similar demands in court on the same grounds or challenge the facts or legal relations established by the court in other civil proceedings. It cannot be reviewed either on appeal or in cassation. The exception is cases when missed deadlines for appealing for valid reasons are restored.
Similarly, decisions of the arbitration court enter into legal force after one month from the date of their adoption, unless the parties and participants in the process have filed an appeal . In the case of filing a complaint with the appellate instance, if after its consideration the decision was not canceled (changed), then it comes into force from the date of adoption of the relevant decision by the arbitration court of the appellate instance. A decision of the arbitration court that has entered into legal force can be appealed to the arbitration court of the cassation instance.
Invalidity of the transaction
Another option for terminating a gift agreement is to declare it invalid.
Conditions
The same requirements apply to a deed of gift as to any other type of transaction. So, it can be considered void in a number of cases:
- The subject of the donation is not specified;
- The donor is an incapacitated or minor citizen;
- If the agreement has not been registered with the Federal Registration Service. Transfer of ownership without state registration of the transaction is impossible;
- If the donee is a civil servant, and the donor is his client.
In addition, the donation can be canceled in some specific situations:
- Behind the gift there is a purchase and sale transaction. To save money and avoid paying taxes, the seller, being a relative of the buyer, transfers ownership of the home to him through a deed of gift, simultaneously issuing a receipt for the money. Such actions are a clear violation of the main principle of donation - gratuitousness.
Having in hand evidence of a violation of the essence of the contract (receipt, eyewitness accounts, etc.), you can easily prove the invalidity of the transaction;
- Behind the gift lies the rent. This case is no less common. Parents (grandparents) transfer housing to their children (grandchildren), but stipulate in the contract an additional condition according to which they have the right to live in the transferred apartment or house while being their dependent. This move also violates the concept of gratuitousness;
- The gift can only be transferred after the death of the donor. In this case, there is a confusion of concepts, because an indication of the transfer of property after death is the destiny of a will. The deed of gift may indicate the period for the transfer of ownership rights, but during the life of the donor;
- The right of third parties to donated property. This happens when, after the death of a spouse, the donor assigns their common property to someone, forgetting that the heirs can claim the share of the deceased.
Procedure
To invalidate a gift transaction, you must go to court.
The claim indicates the names of the plaintiff and defendant, the date of the deed of gift, as well as the reasons why the transaction is void.
Several documents are attached to the application:
- A copy of the claim;
- Receipt of payment of the established fee;
- Deed of gift;
- Evidence of violation of the rules for concluding a transaction.
You can see the claim form in the attached file. In this version of the claim, we are talking about recognizing the donation as invalid, since there is another transaction behind it. Depending on the reason for the nullity of the contract, the text of the statement will vary slightly.
Sample statement of claim regarding the invalidity of a gift agreement
Sample statement of claim regarding the invalidity of a gift agreement - 1
Sample statement of claim regarding the invalidity of a gift agreement - 2
A well-known lawyer will tell you about the statute of limitations for invalidating a transaction (for example, a gift) in the following video:
Next, we will talk about whether the agreement for donating a share in an apartment is possible to be invalid.
Real estate share
One of the most common procedures is the recognition of the invalidity of a donation of a share of an apartment. The reason for this lies in the following. To complete a transaction for the purchase and sale of a share of housing, the owner needs to obtain the consent of the neighbors, who in this case have the preemptive right to purchase this part.
It happens that the seller wants to sell a share to friends or does not want to wait until the owners of a neighboring share raise the necessary funds. As a result, he resorts to fraud, transferring his share to the buyer under the guise of a gift, and secretly issuing a receipt for receipt of money. The neighbors, realizing that the deal was a sham, file a lawsuit (see example below) in court, where, if there is evidence, they win the case.
However, there is one caveat here. If the plaintiff (neighbor) wins the case, he must buy out the share of the enterprising seller after the sham transaction is terminated.
Is it possible to cancel a deed of gift with the condition of donation in the future?
A deed of gift, which contained a condition about the promise of a gift in the future, can be canceled on the same grounds provided for in Art. 578 Civil Code of the Russian Federation.
With the exception of the condition regarding the recipient’s mistreatment of the donated item, which creates the threat of its loss. Since the recipient had not yet received the object of the gift, he could not treat it improperly.
If the donee dies before the donor, then the rights of the former to receive the object of the gift under such a transaction do not pass to his heirs - Art. 581 Civil Code of the Russian Federation. Accordingly, the donor is released from the obligation to fulfill the contract. An exception will be cases when, under the terms of the transaction, the successor of the donee has the right to act as a recipient of the gift.
After the death of the donor, his successors will be able to cancel the transaction with the condition of donation in the future if the death occurred through the fault of the donee and there is a court conviction that has entered into force.
If the agreement provides for a provision that the heirs of the deceased are not obliged to fulfill such a transaction, then the donor’s successors will not have to cancel it. In this case, the object of the gift will be included in the inheritance mass and will be distributed along with the rest of the property among the heirs of the line that is called for the inheritance.
See also:
How the inheritance is divided between heirs according to the law in 2021
What is the order of succession in 2021?
Judicial practice on the cancellation and invalidity of an apartment donation agreement
Case 1. The invalidity of a donation, like other transactions, can be proven in court by confirming the fact that the plaintiff was mistaken about the nature of the transaction.
For example, one of the city courts of the Moscow region invalidated the deed of gift issued by the plaintiff Shaposhnikova T.M. in the name of the granddaughter of Dolgova’s sister Yu.A. During the consideration of the case, it turned out that the plaintiff had no intention of donating the plot with the house in which she lived for a long time. She assumed that she was signing a power of attorney, which was necessary for the correct registration of property in her name.
The power of attorney was signed by a third party - a colleague of Yulia’s husband, who was the notary’s nephew. No one explained the meaning of the power of attorney, which indicated permission to draw up a deed of gift in favor of Dolgova, to Shaposhnikova. It is worth noting that the plaintiff is illiterate (second grade school) and elderly (at the time of signing the power of attorney, she was 86 years old), so she could not read and correctly understand the document herself.
The court invalidated the power of attorney and the gift agreement concluded under it. The property was returned to the plaintiff.
Case 2. Consider the case of cancellation of the deed of gift. CM. went to court. He said that he betrayed the defendant S.M. plot and part of the house, after which she began to treat the plaintiff’s father poorly and even beat him. S.A. tried to protect his father, but the defendant also inflicted bodily harm on him. A criminal case was opened regarding this and S.M. was recognized. guilty. The court agreed with the plaintiff and decided to cancel the deal and return the plot with the house to S.A.
