Is it possible to transfer an apartment received through a deed of gift?

Last modified: October 2021

Almost everywhere, the gratuitous transfer of ownership of real estate through a deed of gift is widespread. If all aspects of proper registration are followed, it is possible to complete the transaction in a very short time. When receiving ownership rights, the new owner is asked a number of pressing questions: “Does he have full rights to the property?”; “Is it possible to donate a donated apartment if necessary?” and “Is the ability to re-gift limited to any number, is there a numerical limit to such transactions?”

Most often, close relatives resort to this type of legal action in order to avoid paying income taxes. But it is not uncommon for there to be cases of transfer of ownership rights by deed of gift to an outsider. Of course, in this case, you will have to pay a significant tax, but this method may allow, for example, to transfer without the permission required for the sale of other home owners, in case of shared ownership of real estate.

Legal subtleties of donating a gift

There are some nuances in completing a transaction with a gift, the object of which went to the current owner of the property also under a deed of gift. You should pay attention to them if you want to donate living space again.

The main condition is that before donating an apartment, the new owner must acquire full rights to it - that is, register the property in the specialized service of Rosreestr or in the multifunctional center (MFC). Subsequently, this will give the advantage that even if the property is encumbered by the fact that the first owner lives on it, the new full owner can dispose of the property at his own discretion (Article 209 of the Civil Code of the Russian Federation)

Typically, the procedure for registering a deed of gift takes a short amount of time, especially if you contact a notary office. The exception is situations with special conditions clearly stated in the form of the gift agreement, under which the new owner can take possession only in connection with their occurrence. This category includes requirements when the new owner must enter into a legal marriage, produce an heir, receive an education, etc.

Legislation

Features of donation are regulated exclusively by the Civil Code of the Russian Federation:

After what time can I re-gift?

The law does not establish restrictions on the terms of transfer, therefore, immediately after registration of ownership, the new owner can transfer the apartment to another person. If you wish, you can return the apartment back to the donor by drawing up a deed of gift in his name.

Reverse action when registering a deed of gift

There are no restrictions or prohibitions on who can act as parties to the transaction. The main thing is that the current legislation is not violated, and the transaction is not feigned and imaginary. The degree of adequacy of the parties to the gift agreement is important.

If the case so requires, it is sometimes necessary to confirm capacity. Therefore, persons who act once as a donor and a recipient can change roles when donating an object again. So in practice it happens that the property becomes the property of the donor back. There are no special restrictions in this regard.

An advantage when re-transferring property back to the donor is a transaction involving a gift to a close relative: spouse, child, parent, sister or brother, when they are exempt from paying the 13% tax (Clause 18.1, Article 217 of the Tax Code of the Russian Federation). Otherwise, you will have to pay tax twice: on the first and subsequent donations.

The concept of donation: features of the deed of gift and the transaction of transfer of an apartment

A donation means a gratuitous transfer of property from its current owner to a new owner. In this case, the recipient of the gift should not have any counter-obligations (care, provision of money, performance of any work) in relation to the donor. Otherwise, the agreement will not be considered a donation.

In 2021, a donation can be issued not only to a citizen, but also to an enterprise. At the same time, based on paragraph 4 of Article 572 of the Russian Civil Code, companies doing business cannot arrange a gift between themselves.

It is not only movable things or real estate that can be donated. The subject of the transaction may be the right to claim the debt of third parties to the donor. Here, together with the deed of gift, materials for the unfulfilled obligation are transferred to the second party.

The transfer of ownership of the gift can occur either with the signing of the contract or after a while. However, it is impossible to include in the text of the transaction a condition that the donee will become the owner of the thing after the death of the giver of the gift. Such a clause, in its content, conflicts with the Civil Code and is void by default.

In common parlance, a gift agreement is called a deed of gift. With rare exceptions, it does not require notarization. It is enough to state all essential points in standard written form.

Only the owner of the apartment has the right to act as a donor. At the same time, he can instruct another person to sign the agreement on his behalf.

For this, a notarized power of attorney is required with a clear designation of all the powers of the representative. In addition, the power of attorney must contain a description of the apartment and an indication of the person to whom the gift is intended.

The recipient of the property can then transfer the donated apartment to any person. There are no restrictions here. But the transfer is permitted only after the official registration of ownership under the first deed of gift.

How to re-donate

If the party who previously received their apartment as a gift wishes to transfer its ownership to another person, then this can be done by performing the following steps:

• Check the actual ownership of the property.
• Obtain consent from the proposed donee to receive the property as a gift.
• Write out everyone registered from the donation object.
• Pay if there are debts and document their absence.
• Collect the necessary documents, draw up an agreement signed by the parties: the donor and the recipient.
• Pay the state fee.
• Submit a package of documents with an application and a donation agreement to Rosreestr or a branch of the MFC. Or simplify the procedure by contacting a notary office for help.

Download the Donation Agreement. Sample (18.5 KiB, 3,415 hits)

Donation agreement for a residential building (22.3 KiB, 342 hits)

Obstacle to the transaction

The donation procedure is quite simple; the ability to carry it out without the obligatory assistance of a notary makes it possible to save money and resolve the issue yourself. We must not forget that there is always the possibility of an artificial delay in the transaction, or even the impossibility of completing it.

The negative aspects that prevent you from donating an apartment, including the following, include:

• Poorly drawn up gift agreement. The consequence may be a refusal in future registration of property with the need to correct shortcomings.
• The need to pay state fees and expenses when applying to a notary.
• Obligation to pay 13% tax for participants not closely related.

If a beneficiary, even a close relative, decides to sell an apartment owned for less than 3 years, the value of which exceeds 1 million, then he is obligated to pay a tax of 13% on the sale.

Spouse's consent to the transaction

With an initial donation and a repeated donation, different requirements arise regarding the need for the consent of the legal spouses.

Download your spouse's consent to donate an apartment. Sample (17.1 KiB, 557 hits)

When real estate is donated for the first time and is jointly owned by both spouses, a written notarized permission for its subsequent donation is required. In addition to other specific features on the ownership of property by each of the spouses, which may be provided for in a previously drawn up marriage contract.

The fact that one of the parties is married does not in any way affect the re-donation. Even when the new owner was related by marital ties at the time of receipt of the property, if it is intended solely for one person’s possession and use. This feature is useful in that it can protect the owner of the apartment during a divorce (Clause 1 of Article 36 of the RF IC).

Multiple recipients

If the question arises: “Is it possible to issue a deed of gift for two people?” Then the answer will be positive. In addition, the number of recipients may be more. For such cases, there are multilateral agreements under which there are either several donees and more than one donor (Article 420 of the Civil Code of the Russian Federation).

The procedure for registering an apartment as a gift

To make a gift of real estate, there are several important steps to take. After all, signing just one agreement to donate an apartment is not enough. It is also necessary to secure the rights to the apartment for its new owner. In addition, before the transaction, it may be necessary to remove encumbrances from the apartment.

After all, it is possible that tenants live in the previously donated property and relations with them should be terminated in a civilized manner. Housing purchased on credit can also be transferred free of charge (under certain conditions).

An apartment that is pledged may be given as a gift. But before concluding an agreement, you must obtain written permission to complete the transaction from the mortgagee. Otherwise, it will not be possible to officially formalize the transfer of rights to residential real estate.

The subject of the deed of gift is often living space belonging to a minor aged fourteen to eighteen years. On his behalf, the deal is signed by his parents and other legal representatives. However, before this you must obtain consent from the guardianship council. It is given on the condition that the child is provided with other living quarters.

Many gift recipients also insist on paying off utility debts and clearing their personal accounts. This point should also be taken into account. Now let's move on to other details.

How much does it cost to issue a deed of gift in 2021?

There is no need to talk about a predetermined figure. It all depends on the form in which the parties decide to conclude the deal. If there is a need for a notary, you need to pay for his services, as well as the cost of the required forms, the cost of checking the property in the registers.

There are options when it is necessary to estimate the cost of an apartment provided as a gift. Therefore, there is a need for monetary rewards for experts.

The rights to the apartment must be properly secured for the new owner. It will cost 2 thousand rubles in state duty. It may also be necessary to prepare new cadastral and technical documentation. This is another plus to the costs.

If the gift is a share in the apartment

The object of donation can be not only the living space as a whole, but also a certain part of it. From the point of view of documentary evidence, donating a share in an apartment has its own characteristics.

The transaction must be certified by a notary, as this is required by Article 42 of Law No. 218 - Federal Law, which regulates registration procedures for real estate rights.

At the same time, unlike purchase and sale, there is no need to ask other co-owners for consent to donate part of the apartment.

Documents for registration

After signing the deed of gift and the date when the gift should officially go to its recipient, the transfer of rights to the apartment must be registered.

This is done either through Rosreestr directly, or through the mediation of the MFC (multifunctional center for the provision of state and municipal services).

For the re-registration to be successful, the following documents must be provided::

• an extract from the Unified State Register confirming that the apartment belongs to the donor;
• original gift agreement;
• application for registration of transfer of rights;
• notarial consent of the 2nd spouse (if an apartment acquired during marriage is given as a gift);
• approval from the guardianship service (for housing owned by children 14-18 years old);
• permission from the mortgagee (when real estate is transferred with an encumbrance).

When submitting documents, the personal presence of the parties to the transaction with passports is required. If the process is entrusted to a representative, a notarized power of attorney is required.

In addition to the above information, a receipt for payment of the state fee for entering the necessary information into the Unified Real Estate Register is required. The payment amount, we remind you, is 2 thousand rubles. It can be entered after providing the main documents.

The re-registration process itself will take about ten days. At the finish line, a fresh extract from the Unified State Register is issued, in which the new owner of the apartment is indicated.

Summary

Is it possible to transfer a deed of gift for real estate (apartment)? Is it also possible to transfer a deed of gift? Lawyers sometimes hear these questions. To transfer real estate received as a gift, a citizen can begin the process after he officially registers the property in his name and becomes the full owner.

To avoid refusal to formalize the transfer of rights, you should seek the help of a lawyer. A professional will be able to correctly draw up any type of document, including a gift agreement. He will correctly prepare the required package of papers and will also provide for all the nuances that often arise when resolving such cases. There is an important addition - during the transfer of real estate, the first copyright holder can challenge the transaction in court if he considers the actions illegal.

Legal argument

A gift agreement is a fundamental document that secures the transfer of property from one owner to another. After concluding a deed of gift and registering it with Rosreestr, the recipient becomes the full owner of the apartment or other alienated property. (Chapter 32 of the Civil Code of the Russian Federation)

Now he can perform any actions with it that do not contradict the law, including donating the apartment to any other person. To do this, you will need to officially formalize a new gift agreement and, after signing it, register the transaction with Rosreestr.

As soon as the new person acquires ownership of the property, she can do the same manipulation with it. Russian legislation does not prohibit re-donating property as many times as desired. With each subsequent procedure, it is necessary to draw up a new deed of gift.

Transfer of housing to the donee

Donation of real estate is carried out by drawing up a deed of gift or a gift agreement. Only after drawing up and signing this document is it possible to re-register ownership of the property to the new owner. And the donor completely loses all rights to the real estate.

After the transfer of rights, the donee, at his own discretion, can dispose of the property transferred to him. In particular: sell, bequeath, exchange and donate this apartment.

Taxes and costs

In accordance with Art. 333.24 of the Tax Code of the Russian Federation, the cost of notary services for certification of a transaction is 500 rubles. If the donee is not a close relative of the donor, he will have to pay income tax and submit a 3-NDFL declaration to the Federal Tax Service. What is the applicable rate here:

• For citizens of the Russian Federation – 13% of the market value of real estate;
• For foreigners – 30%.

Only parents, grandparents, children, spouses and grandchildren of donors do not pay personal income tax.

Let's look at a specific example of the features of tax calculation:

Citizen Ivankov S.F. received an apartment worth 3,000,000 rubles as a gift from my friend. He is a citizen of the Russian Federation, so he will have to pay 13%. 3,000,000 x 13% = 390,000 rub. – total amount to be paid.

If the region has legislation containing rules for easing or exempting certain categories of citizens from taxation, they must be applied. This usually includes disabled people of groups 1 and 2, large families or parents raising children alone if they are officially considered low-income.

Is it possible to donate a donated apartment?

The recipient of the apartment can fully dispose of the square meters received as a gift , even if the conditions of the deed of gift included specific clauses (for example, the donor specified a condition according to which the recipient must live in the apartment for the rest of his life).

There is no limit to the time period under which residential premises can be donated. The main condition: the owner must confirm his right to own housing by a notary .

It is worth remembering that there are certain restrictions under which the owner will not be able to transfer his acquisition (according to Article 575 of the Civil Code of the Russian Federation):

1. If incapacitated citizens (various mental illnesses, severe addictions), as well as minor owners, wish to act as a donor. In this case, only legal guardians can sell the apartment.
2. If the owner wishes to transfer the property to various organizations in whose care it is, and this housing is the only one. Such manipulations may be considered illegal and institutions may be accused of blackmail.
3. If the donor is a person holding high government positions.
4. If the area was donated to more than one person, then the sale cannot be carried out without the consent of all owners.

It is worth observing the deadlines within which this can be done (according to Article 181 of the Civil Code of the Russian Federation, the donor is given three years to collect evidence and go to court). It is recommended to contact specialists.

Now you know how a deed of gift for an apartment is transferred, and whether it can be re-donated. Let's talk about cases when donation will be considered illegal .

If at the time of signing the transaction the donor was considered incompetent:

1. The citizen was under the influence of alcohol or drugs (Article 177) and was aware of the consequences of his own transaction.
2. The person who signed the agreement was in a state of mental instability (according to Article 171).
3. The documents were signed under pressure (Article 179).
4. The recipient died. There are unforeseen situations when the donor is alive, and the recipient, depending on the circumstances, dies.
5. The citizen in whose favor the donation was made caused various bodily injuries or threatened physical harm to other family members.

Transaction price

It is possible to carry out transactions of donation of the same property indefinitely, despite this, it should be taken into account that this is a paid procedure. When registering, you will need to pay:

• fee for registration of property rights;
• notary services (the amount depends on the price of the object of donation), if you turn to them for help;
• income tax (13 percent), if ownership of the object is not transferred between close relatives.

Tax payment is obligatory for the recipient citizen. Tax is charged on gifts that do not occur between immediate relatives, but also between family members. The tax amount is calculated based on the cadastral price of the property.

The advantage of donation is the fact that the donated property is not the joint property of the husband and wife. In the event of a divorce proceeding, the donated property will become the property of the spouse for whom the deed of gift was issued.

Material expenses incurred during the preparation of documents will be borne by the recipient.

Is it possible to transfer the apartment back to the donor?

It is not prohibited by law to return a gift back to the donor. The recipient, having become the owner, has the right to independently choose a candidate to receive such a gift.

Thus, the owner can transfer the property by deed of gift to anyone. However, the law provides for several categories of persons who are prohibited from donating real estate from clients (or persons related to them). Such persons include:

• civil servants;
• employees of municipal institutions;
• employees of medical, educational or educational institutions.

Despite the direct legislative prohibition, in fact, the status of a citizen who receives real estate as a gift is not checked by employees of the MFC or Rosreestr.

However, the right to transfer the apartment back follows from Art. 578 of the Civil Code of the Russian Federation, which states that a gift can be returned to the donor in the following situations:

1. If this is a voluntary expression of the donee’s will.
2. If the donor demands the return of the gift (return is possible only by court decision).
3. When a deed of gift is declared invalid in court.

To return property at the request of the current owner, it is enough to go through standard legal procedures that are implied by the registration of a donation.

Is refusal possible?

There are a number of restrictions when concluding a donation agreement for an apartment is impossible.

The apartment cannot be donated:

• To a civil servant or employee of the organization in which the owner of the apartment was kept (under the care, treated, studied, etc.). But only if the square meters are transferred as payment for the maintenance of the donor.
• When an apartment is given to minors without the consent of their parents or guardian.
• Significant errors were made during the preparation of the deed of gift.
• The donor is incompetent.

The situation can only be corrected if errors were made in the deed of gift. In all other cases, it is impossible to make a donation.

And if it does take place, it will subsequently be considered illegal and the transaction void.

Getting the result

According to regulatory documents, the total period for the procedure for registering property rights is 10 working days from the date of submission of the package of necessary documents to Rosreestr. When notarizing a deed of gift, the time is reduced to 3 working days.

If you submitted documents through the MFC, the period may be extended by several days, since it takes more time to process the papers in the center itself. And you can receive the finished documents after only 11-13 days.