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.

When may you need a power of attorney for donation?

A power of attorney is a document according to which one citizen (principal) authorizes a second citizen (attorney) to represent interests before a third party.

It may also be needed when donating in several situations:

• The donor cannot be present at the transaction in person: he is sick, is abroad, etc.;
• The donor is a legal entity, and the founder or director cannot formalize the deed of gift personally. The document appoints a legal representative.

The form of the power of attorney depends on the type of transaction. According to Art. 574 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is drawn up in writing if real estate is being donated, the donor is an organization and the value of the gift exceeds 3,000 rubles, or the citizen promises to give a gift in the future. In other cases, an oral transfer of the gift is sufficient.

Important

If the DD requires notarization, then the power of attorney must also be certified by a notary. A power of attorney agreement without a certificate is signed only in a notary office.

In what cases can this procedure be refused?

You may be denied registration of such an agreement for a number of reasons. Typically, you need to plan for such situations in advance so that you do not have problems in the future.

First of all, you need to make sure that the deed of gift is drawn up correctly. If you compiled it with a notary, then you will not have any problems. However, if you compiled it yourself, you may have made a mistake somewhere or some inconsistency with the points. Refusal may result from incorrect execution of the package of documents or lack of essential papers.

The next reason for refusal is the expiration of your powers under the power of attorney agreement. This means that if the deadline has already passed, you cannot participate in the transaction as a trustee.

The same applies to the situation when the power of attorney does not provide for the possibility of carrying out a gift transaction. Consider all these nuances in advance so as not to encounter dire consequences that will force you to start the procedure from the very beginning.

Representative rights

The transfer of a gift through a trustee results in the assignment of rights and obligations. The donor will be able to transfer them to the representative within the chosen type of power of attorney.

Donor

The donor is not too limited in his options. He is guaranteed the right to make a decision:

• donate part or all of the property;
• refuse donation after deterioration of health and financial situation, attack or injury;
• live in the donated property;
• revoke a gift after neglect and damage;
• compensate for the damage caused;
• cancel the transfer due to the death of the donee.

Heirs and relatives will go to court after actions committed by the donee that led to the death of the person who executed the deed of gift.

donee

The donees have the right to receive and dispose of real estate and property at their own discretion, subject to certain conditions. Refusal is not prohibited prior to the transfer of rights.

Registration takes place in writing from a notary. When the agreement has been registered, the refusal will also be registered (Article 574).

When does the gift restriction apply?

The limitation is established by Art. 576 of the Civil Code of the Russian Federation and means that an individual or legal entity can make a gift, but subject to certain features:

• an organization has the right to give a gift worth more than 3,000 rubles, which is in its possession by right of operational or economic management, but with the written consent of the owner;
• the transfer of property in common ownership as a gift is invalid if there is no permission for the alienation of the remaining owners;
• the right to claim a debt against a third party is granted, but in compliance with the norms established by individual articles of Chapter. 24 Civil Code of the Russian Federation;
• the donee can transfer the debt to the second party under the deed of gift, observing the norms of Art. 313 Civil Code of the Russian Federation.

Some gifts are completely prohibited. You cannot donate things that require a license or permit for storage and use: weapons, medicines, state and municipal lands, etc.

Restrictions on donating property

Property includes movable and immovable objects: car, apartment, house, land, money. If they are the sole property of the donor, he will be able to make a gift to the recipient without any problems.

Everything changes if the property is registered as joint ownership - the written consent of the second owner will be required. Based on Art. 253 of the Civil Code of the Russian Federation, he will be able to challenge the transaction if the court finds that the donor knew about the need to obtain permission from the other owner.

A similar rule is established for spouses who own property in common ownership: according to Art. 35 of the RF IC, the owner must obtain the written, notarized consent of the second spouse if he intends to donate common real estate to another person.

Legal advice: the restriction can be circumvented by first allocating shares in real estate by agreement or by drawing up a prenuptial agreement. You can donate your share without the permission of the second owner.

When transferring the right of claim

Under a deed of gift, you can give the right to claim a debt to the donee without the prior permission of the debtor.

The procedure is regulated by Art. 382 of the Civil Code of the Russian Federation and other articles:

• the debtor’s consent will be required if this is provided for in the executed agreement between him and the creditor;
• the debtor must be notified in writing about the transaction, otherwise he has the right not to fulfill his obligations to the new creditor-done;
• it is impossible to grant the right to claim alimony, compensation for harm to life and health, and other payments related directly to the personality of the creditor (Article 383 of the Civil Code of the Russian Federation);
• the right to claim the debt is transferred to the donee on the same terms and to a similar extent for the debtor that were previously in effect with the previous creditor;
• it is impossible to transfer the right of claim to another person without the consent of a third party if the identity of the creditor is of direct importance to the debtor (Article 388 of the Civil Code of the Russian Federation).

Case study:

The man signed an agreement for the woman to assign the right to demand payment for rent from tenants. They must pay RUB 10,000 monthly. for the use of the donor's apartment. The deed of gift is drawn up in writing and duly registered. The consent of the employers was not required, because the transaction was re-concluded in compliance with previously established rules.

When transferring the donee's debt

According to Art. 391 of the Civil Code of the Russian Federation, the debt under the DD is transferred by mutual agreement between the donee and the donor. The first acts as a debtor, and the second receives debt obligations under a deed of gift.

Transfer of debt under DD is carried out in compliance with several rules:

• Art. 391 of the Civil Code of the Russian Federation indicates: replacement of the debtor is possible with the consent of the creditor. In the absence of permission, the transaction is considered void;
• it is impossible to transfer debt obligations that the donee (debtor) needs to fulfill personally: payment of alimony, compensation for harm, etc.;
• according to Art. 403 of the Civil Code of the Russian Federation, the original debtor, after transferring the debt to the donor, is responsible for non-fulfillment or improper fulfillment of obligations by him (Article 403 of the Civil Code of the Russian Federation);
• if the creditor agrees to transfer the debt, this transfer is considered made from the moment he receives the notification;
• if the creditor changes the conditions for the new debtor (donor), he has the right to file objections.

Important! When transferring a debt related to business activity to the donor, both parties bear joint liability.

Case study:

A woman took out a consumer loan - 500,000 rubles. After a few months, she realized that she could not cope with her obligations, and her friend decided to help her. The parties secured the bank's permission and executed a deed of gift, according to which the debtor changed: he became the donor. The original borrower is released from obligations to the lender.

Other restrictions

There are other restrictions directly related to the identity of the donors:

• You cannot give property to minors under 14 years of age - this is prohibited;
• Valuable items belonging to a child over 14 years old can be given as a gift, but with the consent of the guardianship authorities.

Legal advice: it is better to wait until the child comes of age - then he will be able to manage his property independently. The chance of obtaining consent to the transaction is negligible, because it worsens the property situation of the minor.

How to properly draw up a real estate donation agreement and what is needed for this?

How to formalize a gift transaction between an individual and a legal entity?

What can you give by proxy?

Citizens and legal entities can draw up deeds of gift for different types of gifts that belong to them as property:

This is also important to know:
Is it possible to issue a deed of gift for a minor child?

What are the differences between donating an apartment with and without a power of attorney?

The main difference is that a transaction under a power of attorney is carried out not by the owner, but by the person to whom the owner has entrusted these powers. When making a gift transaction through a power of attorney, the documents are signed by an attorney. He also orders the necessary certificates, extracts, and collects the necessary documentation. He fully represents the interests of the owner within the framework of the transaction.

Often, a trust document for a gift transaction is drawn up in the name of a realtor, so that the owner himself does not have to deal with “paperwork.” The realtor draws up the documents, signs them, and concludes the deal. The main condition is that the authority to take actions in the interests of the owner must be clearly stated in the “body” of the trust document.

Features of donation by power of attorney

The main rule regarding the power of attorney is established in paragraph 5 of Art. 576 of the Civil Code of the Russian Federation. According to it, the document must contain information about the donee and the subject of the donation (gift). Without such information, the power of attorney is void, and it is impossible to draw up a DD using it. For example, it will not be accepted when registering a transfer of ownership in Rosreestr, and in general the transaction will be easier to challenge.

There are other rules:

• The donor's representative does not have the right to make transactions in relation to himself and act as the donee (clause 3 of Article 182 of the Civil Code of the Russian Federation);
• Powers of attorney on behalf of citizens in prison, in military service, in stationary social organizations, with the signature of an authorized leader, are equivalent to notarial ones. He certifies the document, because a person does not have the opportunity to come to a notary’s office;
• To transfer a gift from a legal entity, a power of attorney is issued by the head or other authorized citizen in accordance with the constituent documents and legislation (Article 185.1 of the Civil Code of the Russian Federation).

Important

If an attorney acts on behalf of the company when donating by proxy, you will need not only the signature of the manager, but also a seal.

Is it possible to appeal a deed of gift for housing?

In practice, there are situations that make it possible to challenge a gift agreement by proxy. This can happen for a number of reasons.

If such an agreement violated the rights of third parties, they can file a claim and also cancel the transaction.

If the trustee carried out a gift transaction, but did not fulfill any instructions from his principal, thereby letting him down, then the principal can also challenge the transaction, citing the fact that the trustee carried out unlawful actions on his behalf.

In any case, the appeal procedure must also go through the court, by filing a statement of claim. However, we hope that you will not end up with such serious proceedings.

Is it possible to challenge a deed of gift for an apartment - Advice from a lawyer

Subtleties of the transaction

Detailed information about the object and the recipient, including entering passport data, will help prevent complications and confusion. Relatives do not have the right to dispose of property and expect automatic transfer after a sudden death.

There is a prohibition when drawing up a contract. The transfer is not possible if one of the parties is a company, an official in the public service, or an employee of the social and medical industry. Minors and dependent citizens are required to obtain permission from their guardian.

On behalf of a minor

Minor children will not be able to participate as a party until they reach 14 years of age. The status will allow you to receive a gift. Natural parents, adoptive parents and guardians will manage the property until adulthood.

Donor and recipient in different cities

When living in another city or region, you need to prepare a document for a specific person. It will be sent to the absent party by courier, registered mail with a register and return receipt.

Staying abroad will make adjustments. The paper will need to be translated and certified through a notary office or consular service.

Several representatives

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The interests of the parties may well be represented by proxies. They will participate in the preparation of papers, sign for their protégés, and handle the registration and transfer of property.

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The donee as a representative of the donor

An attempt to present the donee as a representative of the donor will turn out to be a pure scam and an illegal transaction. The article of the code indicated the impossibility of simultaneously signing a power of attorney for one person, acting as a representative of two parties (Article 182).

Restrictions on donating property

An analysis of domestic legislation allows us to identify several restrictions when donating property , relating both to the form of its ownership, the permissible subject composition (Article 575 of the Civil Code) of the donation procedure, and to the type of property itself. The most obvious restrictions are defined in paragraphs 1 and 2 of Art. 576 of the Civil Code - they relate to the form of ownership subject to donation of property.

Clause 1 of this article establishes the possibility of a legal entity to donate property worth over 3,000 rubles , which is under its operational management or economic control, only with the direct permission of the owner of such property.

Clause 2 Art. 576 of the Civil Code determines restrictions regarding property jointly owned by several persons. An indispensable condition for the possibility of donating such property is the consent of the co-owners, as well as taking into account the features established by Art. 253 Civil Code.

For your information

In addition, each of the co-owners of joint property is given the right to donate it. If there are restrictions on this right for specific co-owners, it is formalized by the terms of the agreement between them. To challenge such a donation, certain conditions established by paragraph 3 of Art. 253 Civil Code of the Russian Federation.

In addition, restrictions may apply to certain types of property. Thus, the legal regime for the circulation of certain things limits or completely prohibits their free donation - weapons, some types of medicines, chemical elements, land, government resources, pornographic materials, etc.

Example

Citizen S. decided to give his daughter a Toyota car he had previously purchased for her birthday. At the same time, he did not take into account that the car was bought by him in marriage with citizen K. This fact, despite the fact that the car was purchased with S.’s personal funds, gives rise to a joint form of ownership of the specified car for both spouses - S. and K. Moreover, when the marriage was officially registered, a marriage contract was concluded between K. and S., one of the clauses of which provided for “the impossibility of any form of alienation by one of the spouses of any jointly acquired property without the written consent of the other spouse.” Without taking into account the provisions of the specified contract, S. executed a contract of donation of a Toyota car for his daughter. Having learned about this fact, K. reminded her husband about the specified contract, threatened to invalidate the donation and return the car to the family through the court.

At the court hearing, it was established that, indeed, the property was jointly owned by the spouses; an agreement between the spouses (co-owners of the car) established the impossibility of its alienation (donation) without the written consent of the other spouse. But, despite this, the court found no reason to recognize the donation as invalid, citing insufficient grounds. To recognize the invalidity of this transaction of donating a car, in accordance with clause 3 of Art. 253 of the Civil Code, it is necessary to determine the presence of two circumstances - the donor does not have the right to make a gift without the written consent of the co-owner and the knowledge of the donee about it. Since the daughter of citizen S. could not know that her father did not have the right to make a gift, the demands of citizen K. regarding the recognition of the gift agreement as invalid were rejected.

Cost and content of a power of attorney for donating an apartment

A power of attorney to donate an apartment must be drawn up in writing. But unlike the deed of gift itself, the law requires official certification by a notary. The total cost of document preparation is 1,200 rubles: 1,000 for the gift deed and 200 for the notary fee.

The power of attorney contains the following information:

• delivery address;
• date of issue;
• passport details;
• information about the apartment that is being donated;
• data from documents that confirm ownership of real estate;
• powers of the trustee;
• information about the donee;
• validity period (no more than three years);
• information about the possibility or absence of re-issuing a power of attorney to another person;
• signatures.

According to Art. 186 of the Civil Code of the Russian Federation, if the validity period of the power of attorney is not specified, it is valid for no more than 1 year.

In addition to the signatures of both parties to the agreement, it must also be signed by a notary. It is also worth recording on paper the amount paid for obtaining the power of attorney and the number in the register.

Terms and dates in the power of attorney must be indicated not only in numbers, but also written in words.

When a power of attorney expires

The trust document for the transfer of powers to formalize the deed of gift loses legal force when the term expires. It is recommended to indicate the eligibility period in the “body” of the document. If not specified, it will be considered valid for a calendar year after the date of registration. The last indicator must be indicated. Without it, the power of attorney will be considered invalid.

Also, the trust document will lose its validity when the transaction is registered with Rosreestr. That is, the trustee will fulfill the delegated powers.

Is it possible to draw up a gift deed by power of attorney?

The holder of a power of attorney from the principal has the right:

• Contact government authorities;
• Submit applications, applications and requests;
• Make decisions, receive documents and sign them on behalf and in favor of the donor.

The agreement for the donation of an apartment by power of attorney is concluded in the presence of a notary, who will act as a witness in the event of legal proceedings.

Representative rights

The representative has a number of rights and obligations that correspond to the interests of the principal.

Donor's rights

The donor has a wide range of rights. He can:

• Give someone your property or part of this property;
• He may refuse a gift if the loss of this property will negatively affect his health or the life of his family. Also, the reason for refusal may be an attack by the recipient on the donor, causing him harm;
• Revoke a gift due to the recipient's neglect of the gift. The relationship is determined by the deterioration of the condition of the gift, threatening its complete destruction;
• Live in the apartment that was donated;
• Demand compensation if the gift recipient causes damage to the property or the donor;
• Can cancel a gift transaction if the gift recipient dies.

If the recipient has made an attempt on the life of the donor or even killed him, then the relatives of the donor have the right to challenge the deed of gift through the court.

Rights of the donee

The recipient of the gift has three rights:

• Accept a gift;
• Don't take it;
• Conduct any transactions with the donated property.

If the recipient decides to refuse to accept the gift after the conclusion of the contract, but before the transfer of property into his actual possession, then he must register the refusal in the state register.

In what cases is a deed of gift considered invalid?

The trust document for the execution of a deed of gift will be invalidated in the following cases:

• The owner, who is also the donor, canceled the deal and secured the condition with documents.
• The authorized representative independently renounced the delegated powers. The action is secured by a notary.
• The validity period of the document specified in the “body” has expired, the transaction was not completed.
• The “body” of the power of attorney does not indicate the date of preparation.
• The transaction is registered in Rosreestr, that is, the transferred powers have been fulfilled, even if the legitimacy period has not expired.
• The donor died before the transaction was completed, was declared missing by the court, was declared by the court to be completely incompetent or partially incompetent.
• The attorney died before registering the transaction, was declared missing by the court, had his legal capacity limited by the court, or was declared completely incompetent.
• Minor children or children officially adopted or under guardianship are permanently registered in the real estate that is the object of the gift.

How to donate real estate by power of attorney: step-by-step instructions

The procedure is similar to an independent donation by the parties, but there is one step in it - the execution of a power of attorney for the representative. Both the donor and the donee have the right to do this if they cannot be present at the transaction in person.

Important! The agreement can be signed in person, and a power of attorney can be issued to an attorney to register the transfer of ownership, because the presence of all participants in the transaction is required. If it is not possible to sign the DD, a representative has the right to do so.

Agreement with the donee

First, you need to agree on the deal with the recipient of the gift: tell him what property is being transferred to him, when and where to sign the deed of gift. This step is important because... he can refuse the deal (Article 573 of the Civil Code of the Russian Federation).

Registration of a power of attorney

It is necessary to find a person to represent your interests. It can be a relative, acquaintance, friend - the choice is left to the principal. If the attorney agrees, you need to issue a power of attorney with a notary.

Validity

According to Art. 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate its validity period remains valid for 12 months from the date of signing. If the date is not specified, the document is considered void. The maximum period is 3 years.

If a notarized power of attorney is intended for transactions abroad and does not contain information about the validity period, it is valid until canceled by the principal.

Documentation

To issue a power of attorney you will need:

• Passports of the principal and attorney;
• Certificate of ownership or extract from the Unified State Register for housing;
• The principal's title documents for real estate: purchase and sale agreement, exchange, etc.

State duty

According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 200 rubles. If a notary's assistance is required in preparing a document, this is paid separately. On average, prices for additional services start from 2,000 rubles. and depend on the region.

Registration of deed of gift

When the power of attorney is issued, you need to sign the DD. An attorney does this on behalf of the principal (donor), and the donee signs independently.

Important

If the DD requires certification, it must be signed directly by a notary.

Documentation

The list of documents is almost the same as when drawing up a power of attorney:

• Passports of the parties;
• Power of attorney;
• Deed of gift (if drawn up independently and not from a notary);
• Real estate documents.

Registration of the transaction in Rosreestr

After signing the DD, the representative and the donee need to come to the MFC or Rosreestr to submit documents for re-registration of ownership. If a contract of promise of gift has been drawn up, the application is submitted only from the moment its execution begins - the date is indicated in the document.

For registration, the list presented above is provided, but in addition to it you will need a deed of gift.

If the gift is not real estate, but, for example, a car, registration is not required. All you need to do is make changes to the title and register the vehicle with the new owner.

State duty

Individuals pay 2,000 rubles for re-registration of real estate, organizations – 22,000 rubles.

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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Giving money in 2021

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.

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.

Requirements for real estate donated

Questions often arise whether it is possible to give a share in an apartment or make a gift to a minor.

When the apartment is joint property, the consent of the second spouse is required to complete the transaction. If the apartment is the sole property of the married owner, this fact needs documentary confirmation.

You can also donate a share of housing. Then, when drawing up a power of attorney, you must indicate that not the entire apartment, but only part of it, is subject to donation. The contract specifies the total area of ​​the housing and the size of the part to be donated. If, in addition to the donor, there are other owners in the apartment, the written consent of each to carry out the transaction will be required.

When the apartment is a gift to a minor, the consent of his parents or guardians is required. There are often situations when parents want to give an apartment to a child. In this case, only one of them can act as a donor, because the second will have to act as a legal representative who will accept the gift on behalf of the child. If the object of the donation is an apartment where a minor is registered, the consent of the guardianship authorities will be required to confirm compliance with his rights.

Positive and negative aspects of a gift transaction by power of attorney

• a one-time document transferring authority to a representative to perform one action;
• a special document allows the representative to carry out a number of similar legal actions;
• a general power of attorney transfers to the representative a full list of rights to dispose of the apartment, including alienation in favor of third parties, receiving profit from the apartment, and so on.

Thus, in order for the owner to be confident that the representative will not deceive him for his own personal purposes, it is necessary to limit his powers to a certain extent, which is indicated directly in the power of attorney.

• drawing up a deed of gift as a document;
• registration of this transaction in Rosreestr.

According to the rules for concluding a deed of gift, it is drawn up in writing, preferably certified by a notary. The donation agreement is signed by the donor himself or his authorized representative. At this stage, the participation of the representative occurs in the same way as the participation of the donor himself. The presence of the donee is not necessary.

In cases where the deed of gift by power of attorney is signed by the owner himself, his participation in registration is not required. It is enough for the donee to personally submit an application to Rosreestr with a package of documents and a deed of gift.

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However, when a deed of gift is concluded with the participation of a representative on the part of the donor, his presence when submitting an application for registration of the transaction is necessary. After all, he needs to confirm the legitimacy of his authority to conclude a deed of gift on behalf of the owner.

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• a power of attorney that gives him the authority to donate an apartment;
• your passport.

You need to know that a power of attorney is a personal document and cannot be transferred anywhere in the original. It is only submitted in the original to the required places, and a copy is left if necessary.

The law establishes restrictions when a gift is impossible in principle or is possible with the consent of third parties.

1. If the donor is not the full owner of the property, then he does not have the right to give it as a gift.
2. If the donor has ownership rights to only part of the apartment, then the deed of gift must indicate exactly the part that belongs to him, otherwise the transaction will not be legitimate.
3. If other persons own the apartment together with the donor, that is, without determining the shares, then it is necessary to obtain the consent of all other co-owners.

In addition, if the donor has not reached the age of majority, then, by decision of guardians and other representatives, it is impossible to make a donation in favor of these persons. When alienating the property of minors, the consent of the guardianship authority is required, which does not allow this if the transaction is free of charge. That is, minor children can donate an apartment in exceptional cases at the discretion of the guardianship authority.

• The donor pays a state fee, the amount of which is two thousand rubles;
• A prerequisite for registering a transaction is the requirement that both parties appear at the registration office and sign the agreement. Both the owner of the property and his representative can come, depending on the circumstances and what specific powers were transferred to the trustee;
• Both parties to the contract must bring a package of required documents. Their collection on the part of the donor is often carried out by a trusted person - a person who has the rights to carry out such procedures, and to whom the rights to representation in government bodies, housing and communal services, etc. are transferred. In addition to the documents, there must be a receipt confirming payment of the state duty;
• After the documents have been checked and everything is in order, a special application for registration of the transaction is drawn up, examples of which can be found on the endless expanses of the Internet. But this is just extra work, since the parties will be provided with a form for its preparation and will be helped to fill it out correctly. Then the parties to the transaction only have to put their signatures on paper;
• Next, the registrar issues a special receipt indicating when it will be possible to pick up the certificate of change of owner and transfer of property according to the deed of gift. In addition, this receipt indicates that the documents provided for registration have been accepted and will be used as confirmation of the legality of the transaction. Therefore, among the package of documents there must be a power of attorney from the owner of the property to his authorized representative;
• The next step is important for the donee, because he is the one who should come to the MFC to receive a certificate of ownership of property. This written piece of paper transfers the recipient to the caste of happy owners of their own square meters.

But there are some nuances of the deal that can negate all the efforts of the parties. For example:

• The transaction will be canceled if the owner does not have a title certificate for ownership of the property;
• The donor must be legally capable at the time of concluding the transaction;
• It is impossible to issue a deed of gift if minor children live with the donor in the apartment he wants to donate.

Let's consider the advantages:

1. The donor entrusts the trustee with the task of collecting all the documents necessary for the transaction, drawing up an agreement and registering it with government agencies.
2. The donor is given the opportunity to carry out the contract through a proxy, even if he is not located in the city where the donated property is located.

Let's look at the disadvantages:

1. The donor may not have sufficient information about how the transaction process is progressing.
2. By entrusting the transaction procedure to a stranger, the donor runs the risk of encountering scammers.

Donation is one of the types of transactions that are the subject of civil regulation. Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or a third party, or releases or undertakes to release it from a property obligation to himself or to a third party.

All subjects of civil law can act as parties to a gift agreement: citizens (including citizens of the Russian Federation, foreign citizens, stateless persons), legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities. The subject of a gift can be, for example, real estate, a car, money, securities and other property of value. However, in Russian civil law there is a list of rules prohibiting and limiting donations. What prohibitions on making gift transactions are provided for in the legislation? It is not permitted to conclude a gift agreement that provides for the transfer of the gift after the death of the donor. The transfer of ownership will not be registered if the donor is not alive at the time of registration, even if there is a notarized agreement. If the transfer of ownership was not registered during the life of the donor, then the property will be included in the estate of the deceased donor. The prohibition of donation is devoted to Art. 575 of the Civil Code of the Russian Federation. It lists cases when a ban is imposed on the execution of a gift agreement. The rules contained in this article apply to all cases of donation, with the exception of the transfer of ordinary gifts, the value of which does not exceed three thousand rubles. The law prohibits donations on behalf of minors (children under 14 years of age) and citizens declared incompetent by a court. The existence of this norm is explained by the need to ensure and protect the property interests of minors and incompetents, protecting them from possible abuses by their legal representatives. Donations to civil servants and employees of municipal bodies are not permitted in connection with their official position or in connection with the performance of their official duties. Gifts to employees of medical, educational institutions, social security institutions and other similar institutions by citizens undergoing treatment, maintenance or education there, spouses and relatives of these citizens are not permitted. And another case of prohibition of donation is established for commercial organizations in relations between them. The prohibition of donations between commercial organizations does not prevent the implementation of legitimate business activities. This ban does not apply to all organizations, but only to commercial ones. Along with the prohibition of donations in Russian civil legislation, there are a number of restrictions on similar transactions that relate to various circumstances involving legal entities and citizens. Thus, a legal entity to which a thing belongs under the right of economic management or operational management has the right to donate it with the consent of the owner, unless otherwise provided by law. Donation of property that is in common joint ownership is permitted by agreement of all participants in joint ownership in compliance with all the rules governing the procedure for disposing of property that is in joint ownership. This norm is necessary to ensure the interests of all its participants. Such consent must be in writing. The spouse (title owner) has the right to dispose of real estate that is the common joint property of spouses only with the prior notarized consent of the other spouse (Clause 3 of Article 35 of the RF IC). Compliance with some additional conditions, which can also be considered as a restriction on a gift, is required when making a gift not by the donor himself, but by his representative by proxy. In this case, the authority of the representative to make a donation, indicated in the power of attorney, should not be of a general, but of a specific nature: the power of attorney must indicate the specific subject of the donation and the specific donee. Failure to comply with this requirement entails the nullity of both the power of attorney itself and the gift agreement. The donation may not take place even in cases where the contract is declared invalid (voidable or void) on the general grounds provided for by the Civil Code of the Russian Federation. A gift agreement may be declared invalid and is considered as such if it is concluded for a purpose that is obviously contrary to the fundamentals of law and order or morality, if it does not comply with the requirements of the law or other legal acts (for example, the requirements of the Civil Code of the Russian Federation for the form of the transaction are not met). If a gift agreement is concluded only for show, without the intention of creating corresponding legal consequences (the so-called imaginary agreement), for example, a person, wanting to avoid foreclosure on his property for any obligations, transfers it under an imaginary gift agreement to another person, then he also may be declared invalid. There are often cases when a gift agreement is concluded in order to cover up another transaction (a sham agreement), for example, part of the property that is in the common shared ownership of several persons is transferred by one of the co-owners under a gift agreement to another person who is not a participant in the common property, in order to avoid this possibility that any of the other participants in shared ownership will exercise their right of first refusal. Thus, the gift agreement actually covers the purchase and sale transaction. If a gift agreement is concluded by the donor under the influence of a misconception regarding the nature of the transaction (for example, the donor believes that he is transferring an item under a compensation agreement) or if the gift agreement is concluded under the influence of deception, violence, threat, malicious agreement of a representative of one party with the other party, then such the contract may also be declared invalid. If the gift agreement is concluded without the consent of the trustee by a citizen whose legal capacity is limited by the court due to the abuse of alcoholic beverages or drugs; if it was concluded by a citizen recognized as incompetent due to a mental disorder or if it was concluded by a citizen, although capable, but at the time of its conclusion in such a state where he was not able to understand the meaning of his actions or manage them, then the gift agreement will also be considered or invalid by its nature, or can be recognized as such at the request of interested parties. An important point for the donor is that Article 578 of the Civil Code of the Russian Federation gives him the opportunity to cancel the donation if the donee makes an attempt on his life, the life of one of his family members or close relatives, or intentionally causes bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand cancellation of the donation belongs to the heirs of the donor. The donor may apply to the court to demand the cancellation of the donation even if the recipient’s handling of the donated item, which is of great non-property value to the donor, creates a threat of its irretrievable loss. The donation can be canceled by the court and at the request of the interested person within six months preceding the declaration of an individual entrepreneur or legal entity as insolvent (bankrupt) and if the donation was made at the expense of funds related to entrepreneurial activities. In addition, the donor and the donee may provide in the gift agreement the right of the donor to cancel the gift if he survives the donee. In all of the above cases, the donee (or his heirs) must return the gift that has been preserved in kind. If this becomes impossible both in the event of destruction of property and in the event of its alienation, the donor has the right to file a claim for compensation for damage. When concluding a gift agreement, you must remember that an invalid transaction does not entail legal consequences. If the transaction is invalid, the donee is obliged to return to the donor everything received under the transaction, and if it is impossible to return what was received in kind, to reimburse its value in money.

Termination of power of attorney

According to Art. 188 of the Civil Code of the Russian Federation, a power of attorney is revoked for one of several reasons:

• The expiration date specified in the document occurs;
• Cancellation of a power of attorney by the principal;
• Refusal of the attorney's authority;
• Death of the principal or representative;
• Bankruptcy of an attorney or representative in an arbitration court if he loses the right to issue powers of attorney.

To terminate powers, a consent to refuse is drawn up. The parties have the right to draw it up at any time and contact a notary.

Concept of donation

Based on the provisions of paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, a gift should be understood as a mutual agreement of two subjects of civil law for a free transfer or a promise of such transfer to one of them:

• things allowed for free circulation;
• property rights of claim;
• fulfilling its duties for the party, incl. payment of debt. The party transferring the benefit is called the donor, and the party receiving the gift is the donee.

Important

The most important condition for the validity of a gift is the gratuitousness of the transaction concluded between the parties. According to para. 2 p. 1 art. 572 of the Civil Code of the Russian Federation, the presence of a counter-representation on the part of the donee is unacceptable - such a transaction will be considered a sham (covering up another transaction), which, according to clause 2 of Art. 170 of the Civil Code entails its insignificance (invalidity).

However, the above counter-representation cannot be understood as a symbolic payment for a gift or the fulfillment of any non-property conditions determined by local traditions and customs.

In addition to the generally accepted real donation (made at the time of conclusion of the transaction), clause 2 of Art. 572 of the Civil Code of the Russian Federation provides for the possibility of its consensual form (promises of donation in the future). For the validity of such a donation, the legislator obliges the parties to document in writing the intentions of the donee (clause 2 of Article 574 of the Civil Code), which provide for clear deadlines and specification of the subject of the donation - violation of this rule entails the invalidity of the donation .

Risks when making a gift by proxy

Considering that through this gift document a person transfers his authority to dispose of his property within certain limits. Therefore, he must have a trusted person in whom the owner of the object is one hundred percent confident. By transferring certain rights and powers, the donor consciously takes a risk.

From a security point of view, the donor should give preference and issue a one-time power of attorney, since this document:

• has a limited validity period;
• clearly defines the boundaries of the representative’s powers;
• contains all the information about the recipient.

This means that the trustee will not be able to take advantage of the situation in his own favor, or fraudulently dispose of the property entrusted to him at his own discretion. If there is a need for a general power of attorney, then the represented person must clearly understand the full extent of responsibility and possible risks, since this document gives the representative all the powers and rights that the represented person has. Having a power of attorney in hand, a person can:

• dispose of property at your own discretion (sell, exchange, donate, pledge, etc.);
• make cash payments on behalf of the represented and accept incoming payments;
• sell securities (shares, bonds, certificates, etc.) and buy them;
• make official requests to various authorities;
• receive various documents;
• put signatures, etc.

In other words, the representative can do everything that does not contradict the law, therefore, when drawing up a general power of attorney, the represented person is at great risk. Often, in order to save on issuing a power of attorney, the donor, instead of several one-time ones, decides to issue one general power of attorney, thereby risking losing all his property and funds in bank accounts due to insignificant savings.

Is it possible to donate an apartment purchased with a mortgage?

This is the most common question among borrowers, because...
For the transaction, the mortgage agreement and legislation establish restrictions - you will need consent to transfer the debt from the lender. Until the debt is fully repaid, the apartment is pledged to the bank, so all transactions must be agreed upon. It is important that the new borrower (donor) meets the requirements established by the bank: has an official job and a sufficient level of income, as well as a good credit history. But the bank has the right to refuse without explanation.

The transfer of mortgaged real estate as a gift is carried out in several ways:

• the housing remains with the original borrower, but the debt is transferred to the donor with the consent of the bank;
• the property is re-registered to a new debtor, who is assigned debt obligations (he pays the mortgage in full).

If the mortgage agreement states that any transactions with collateral are prohibited, the bank will not give consent.

Arbitrage practice

Often, interested parties turn to the courts to invalidate DDs and powers of attorney, justifying this with the above reasons or a violation of their interests.

Here are some examples of decisions where claims were satisfied:

• Decision No. 2-3/2019 2-3/2019(2-517/2018;)~M-466/2018 2-517/2018 M-466/2018 dated January 22, 2021 in case No. 2-3/2019 ;
• Decision No. 2-17/2019 2-17/2019(2-2093/2018;)~M-1268/2018 2-2093/2018 M-1268/2018 dated January 15, 2021 in case No. 2-17/2019 ;
• Decision No. 2-335/2018 2-335/2018(2-5440/2017;)~M-3301/2017 2-5440/2017 M-3301/2017 dated September 28, 2021 in case No. 2-335/2018 .

Donation

Legal nature of the donation . A donation is understood as a donation of a thing or a right associated with encumbering the donee with the obligation to use the donated property for a certain generally beneficial purpose. The agreement between the donor and the donee regarding such an encumbrance must take place no later than their agreement on causa donandi. This obligation of the donee arises not with the achievement of an appropriate agreement, but only with the transfer of a thing or right to him. Therefore, the donee does not need to object to the unfulfilled contract.

A promise of gift, which substantiates the obligation of the donee to use the donated property in accordance with the instructions of the principal, is a bilateral, but not a mutual, agreement. It cannot be considered as a mutual contract, since the action owed by the donee (for example, support of a charitable institution) according to the parties is not equivalent to the provision made by the donor.

By virtue of paragraph 1 of Art. 582 of the Civil Code, donations can be made to citizens, medical and educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational institutions, foundations, museums and other cultural institutions, public and religious organizations, other non-profit organizations, as well as the state, constituent entities of the Federation and municipalities. In this case, the subject of donation can only be a thing or a right.

Fulfillment by the donee of his obligation to use the donated property in accordance with the instructions of the principal sometimes turns out to be impracticable due to changed circumstances (for example, due to the cessation of the existence of a charitable institution to which the donee has pledged to support). If this is the case, then the donated property can be used for another purpose only with the consent of the donor, and in the event of his death or liquidation - by court decision (clause 4 of Article 582 of the Civil Code).

Cancel donation . Using donated property not in accordance with the purpose specified by the donor or changing this purpose in violation of the requirements of paragraph 4 of Art. 582 of the Civil Code gives the donor or his legal successor the right to demand the cancellation of the donation (clause 5 of Article 582 of the Civil Code). Being by its legal nature a transformative claim, this right is addressed not to the donee, but to the court and is subject to a three-year statute of limitations. The implementation of this right leads to the disappearance of the legal basis for the donation, as a result of which the donor or his legal successor, depending on the type of property donated, has either a claim against the donee for the delivery of the thing transferred to him (clause 1 of Article 1104 of the Civil Code), or the right to demand from the court a transfer to self-transferred demand to the donee.

Additional questions

Power of attorney with the right of substitution

The holder of a power of attorney by law has the right to entrust the very conclusion of the transaction to another person.

But this is only possible if such a possibility is indicated in the power of attorney. Also, re-entrustment can only be done in certain circumstances, and this should not harm the interests of the original principal.

What are the differences between donating an apartment with and without a power of attorney?

Considering the process of donating an apartment, both with and without a power of attorney, the procedure remains unchanged, that is, all accompanying documents must be present, everything must be notarized, and the like.

However, in the case of the presence of a document, on the part of the donor, his representative will act, who will legally be able to transfer the apartment for private use free of charge to the person for whom this valuable gift is intended, and there is no need for the personal presence of the donor.

When drawing up a trust document granting the right to donate an apartment to someone on your behalf, it is recommended to indicate exactly to whom exactly you want to give the property, as well as what kind of living space located at a specific address.

Otherwise, if such data is not indicated, the text of the power of attorney with the right to donate the apartment will be null and void and, therefore, invalid.

The period for which the power of attorney is valid and in which case it ceases to be valid

Considering a power of attorney as a business document that provides certain opportunities to third parties, it should be noted that there are restrictions on the period of its use.

According to current legislation, the validity of a power of attorney cannot exceed 36 months. If the power of attorney does not indicate its validity period, then such a document can be considered invalid after 12 months.

In some cases, this document may cease to be valid, namely:

• if the donor, on his own initiative, wishes to terminate the assignment;
• the validity period of the document has expired;
• the trustee initiates a waiver of the obligations assigned to him;
• death of the donor;
• death of a representative;
• death of the recipient of the transaction;
• declaring a representative incompetent according to a court decision.

It should be remembered that in order for the power of attorney to be valid, it is necessary to approach the drafting of this document as carefully as possible, and before creating it, it is strongly recommended to consult with a lawyer who will tell you what details you should focus your attention on.

As for drawing up an apartment donation agreement by power of attorney (a sample is available for download in the article), information about the trust document must be present in it. As a rule, this document is reflected in the form of details of a power of attorney, on the basis of which the donor’s representative carries out the transaction.

What documents are needed to conduct a gift transaction?

To register a transaction for the transfer of real estate as a gift, you must provide the following documents:

• Owner's passport. Since an attorney acts on his behalf, he needs his passport and a power of attorney, which contains the passport details of the owner and the authorized representative.
• Passport of the donee.
• An extract from the Unified State Register of Real Estate, in which the owner of the property is registered. If the property right of ownership was registered before July 1, 2016, then you need to provide a “blue” certificate of ownership.
• The document on the basis of which property rights arose - a contract of sale, gift, inheritance.
• An extract from the house register, which indicates persons who have permanent registration at the address of the subject of the gift.
• A technical passport, which indicates that the housing has not been subject to unauthorized redevelopment.

The recipient may additionally request an extract from the personal account, which will indicate the presence or absence of debts on utility bills. To register a transaction, you must pay a state fee. The law does not stipulate which party is obliged to do this. But, by default, the one who accepts the object of the gift pays. The fee is 200 rubles. You can use the object after signing the deed of gift, and not after registering the transaction in Rosreestr.

If the subject of the gift is not a real estate object, but other property, then documents confirming property rights are needed. So, if you give a car as a gift, you need to provide:

• STS and PTS.
• The document on the basis of which the right arose.
• Additionally, you can ask for a certificate confirming the absence of debts on fines and transport taxes.

In all cases, a deed of gift is attached to the set of documents. It is recommended to draw up it in a notary office. This minimizes the risk of errors and legal conflicts.