Having received housing, and not only that, from someone (relatives, close people) as a gift, you are not insured against the fact that other applicants will encroach on the property legally given to you. Distant relatives who have been silent for years may take away from you what was given to you many years ago. To avoid such troubles, you should understand the intricacies of invalidating a gift agreement and the statute of limitations on it.
Limitation period for challenging donation transactions
A voidable transaction is all invalid transactions, with the exception of those that are void under the law. Such an agreement can only be challenged in court, in contrast to a void one, which is already invalid by its nature, regardless of going to court.
After the gift agreement is signed and the gift is transferred to the donee, the possibility arises that such a transaction will be challenged in court. It cannot be ruled out that such a claim will be filed a long time after the conclusion of the deed of gift. According to Art. 195 of the Civil Code of the Russian Federation, the limitation period is recognized as the period for protecting the right in a claim of a person whose right has been violated.
Claims regarding the deed of gift may arise:
- from the donor (refusal of donation, cancellation);
- from the donee (demand to give him the promised gift);
- from creditors or mortgagees (the property that was donated was subject to foreclosure);
- from the donor's heirs (after his death).
According to the gift agreement, which is considered voidable, the statute of limitations is 1 year. Within this period, the legislation of the Russian Federation guarantees the protection of the violated rights of the plaintiff.
If the statute of limitations has expired, this is not a reason for the court to refuse to accept and consider the claim. This period is applied by the court if one of the parties filed a corresponding petition before the court’s resolution of the claim.
Important
The limitation period is established only by civil law and an attempt by the parties to change it by agreement between themselves (a clause in the text of the contract itself, reflected in the additional agreement) is illegal and will be subsequently declared invalid.
How long is the deed of gift valid?
The gift agreement has no duration (indefinite). When drawing up an agreement, you can specify the terms of the transaction or the effective date of the document, which will determine when the donee will have the right to dispose of the thing.
Until this time comes, the donor has the right to use and dispose of the thing.
If a person receives an apartment or other real estate as a gift and the transaction is concluded at home, it is subject to state registration within three years from the date of signing. If for some reason the persons did not manage to formalize the transaction legally, then such transaction is considered invalid or void.
Procedure for calculating the limitation period
As Part 1 of Art. 200 of the Civil Code of the Russian Federation, the limitation period begins from the day when the person learned or should have learned about the violation of his right and who is the proper defendant in the claim for the protection of this right.
The starting point depends on the plaintiff:
- if the transaction is disputed by one of the parties, then the duration of the period from the moment the contract was concluded or when the violence or threat of violence ceased;
- if the contract is contested by another interested person, then the period begins when the person learned or should have learned about the violated right.
The period under the Civil Code of the Russian Federation can be determined by a calendar date, the expiration of a period (year, month, week, days, hours). The period begins on the day following the day after the appointed date or the occurrence of any event.
If the period that is being calculated:
- years, it expires on a certain date and month;
- months, then ends on the specified date of the last month (if the month does not have such a date, then ends on the last one);
- weeks, then ends on the corresponding day of the last week.
Attention
If the end date falls on a weekend or holiday, the next working day ends.
Example
In secret from his wife, Anatoly Komarov acquired real estate - a one-room apartment, which he later decided to give to his mistress, Tamara Alekseeva. The deed of gift between them was concluded in simple written form, without notarization. After some time (within 2 months from the date of conclusion of the deed of gift), Anatoly’s wife, Valentina, learned about the secret acquisition of her husband and the subsequent donation; she was very outraged by this, since she did not give permission for such transactions. Valentina turned to a lawyer for help, who helped her draw up a statement of claim as soon as possible, which was sent to the court. Due to the fact that the statement of claim was filed within a year from the day when Valentina learned about the deed of gift, and there was no consent to complete the donation transaction certified by a notary, the court declared the deed of gift of the apartment invalid. The property was returned to the donor - Anatoly. Subsequently, Valentina and Anatoly divided their jointly acquired property.
How to donate property
In order to find out on the basis of what circumstances it is possible to terminate a transaction, you need to know how the donation is made.
Donation of property, things and real estate can be expressed in the form of:
- gratuitous transfer;
- promise to deliver by a certain date;
- exemption from the obligation to fulfill any requirement (for example, forgiveness of a debt for an apartment).
Donors can be:
- citizens, including close relatives;
- organizations.
For real estate donation transactions, compliance with the conditions is required (clause 3 of Article 574 of the Civil Code of the Russian Federation):
- written contract;
- registration of transfer of rights in Rosreestr.
The main requirement for making a gift is that the donor has ownership of the property.
The limitation period for a gift agreement
According to Part 2 of Art. 181 of the Civil Code of the Russian Federation, the limitation period for a claim to recognize a voidable transaction as invalid and to apply the consequences of its invalidity is one year.
Limitation period:
- 3 years (as a general rule and for void transactions);
- 1 year (for voidable transactions that are recognized as such in court).
The legislator has established such limited terms so that the plaintiff (the one whose rights are violated) can figure out whether his rights have been violated , if so, how, and at the same time, evidence will not be lost in such a short time. The loss of evidence can affect the “quality” of justice, leading to an unfounded court decision regarding the dispute.
The limitation period may be suspended in exceptional cases (specified in civil law):
- if there is an emergency, insurmountable situation;
- one of the parties serves in the Armed Forces of the Russian Federation, when martial law is declared;
- such suspension is legally enshrined;
- The Civil Code of the Russian Federation has been suspended.
Information
The limitation period is suspended provided that the above situations occurred for at least 6 months of the limitation period. If the reason for which the period was suspended ceases, then the period continues (if the remaining period is less than six months, then it increases to 6 months).
State duty, cost of claim and processing time
Claims to cancel a donation are subject to consideration in courts of general jurisdiction; accordingly, the amount of the state duty will be calculated according to the rules set out in Art. 333.19 Tax Code of the Russian Federation.
It is important to know that the key factor that determines the amount of state duty payable is the amount of the claim. The amount of the claim for cancellation of the donation, or in other words - the price of the claim, is formed based on the value of the property in respect of which it is planned to cancel the donation
According to the general rules set out in Art. 154 of the Code of Civil Procedure of the Russian Federation, the period for consideration of the case on the cancellation of the donation should not exceed 2 months from the date of filing the application.
Restoring the statute of limitations under a gift agreement
Restoring the deadline means that the court will protect the violated rights of the plaintiff, even beyond the established deadline, but in order to receive this protection, it is necessary to respectfully justify its omission. This pass must be supported by evidence (as a rule, such evidence is medical documents, travel certificates, etc.). Such reasons must exist for at least six months.
Reasons that the court may recognize as “valid”:
- serious illness. Such a concept does not exist either in medicine or civil law. By this concept, the legislator means treatment in an inpatient department (outpatient treatment, most likely, will not be recognized as a valid reason). The disease itself, the stage of the disease and its other characteristics are not taken into account by the court;
- helpless state. It can be caused by the use of drugs or alcohol, psychotropic medications, emotional distress (death of a close relative or family member);
- illiteracy, that is, ignorance of the Russian language and Russian legislation. As a rule, these include foreign citizens;
- caring for a sick relative or family member;
- Military service;
- serving a sentence in prison;
- The plaintiff's profession involves long business trips.
Additionally
This is not an exhaustive list of valid reasons for reinstating the statute of limitations for challenging a deed of gift; as a general rule, there must be a reason for which it is objectively impossible to file a claim to challenge the deed of gift.
Can relatives challenge a deed of gift during the life of the donor?
If the donor is not deprived of legal capacity or limited in it, the transaction was made in accordance with the requirements of the law and other legal acts, the donor was of sound mind and sober memory when making the transaction, the relatives of the donor do not have the right to challenge the agreement during his lifetime.
The owner disposes of his property at his own discretion, that is, he has the right to alienate it in any way, to any person and at any time.
The donor is not required to ask anyone's consent to dispose of his property, with certain exceptions. For example, when we are talking about property acquired during marriage, the donation of such property requires the notarized consent of the donor’s spouse, or when property is alienated by donation by a person limited in legal capacity due to alcohol or drug abuse, the mandatory consent of his trustee is required.
When is refusal possible?
How to cancel a deed of gift for an apartment? Thousands of citizens in our country face this issue. People often turn to practicing lawyers with the question of whether it is possible to cancel a gift agreement.
The legislation of the Russian Federation provides for a clear procedure for actions, during which the initiators manage to cancel the deed of gift for an apartment. There are a number of legally acceptable ways when the answer to the question “is it possible to cancel a gift agreement” is “yes”. So, cancellation of a gift agreement is possible in the following cases:
- Based on the reached agreement of the donor and the current copyright holder.
- By applying to the court by the original owner of the property or legal heirs, as well as a representative of the guardianship or investigative authorities.
- In the event of the premature death of the recipient of the donee, who died earlier than the donor, which is prescribed in a separate clause of the contract.
- If the owner of the property is a legal entity and, through donation, they try to hide personal property from regulatory government agencies in order to avoid confiscation.
- You can automatically terminate a real estate gift agreement between close relatives when the subject of the civil law agreement is not included in the state. register in the name of the new owner.
- If at the time of signing the agreement the donor was under the influence of alcohol or drugs or was incapacitated. But the actions of the donor can only be challenged if there is a medical examination.
Cancellation of a donation occurs in the following cases:
- If the donee made an attempt on the life of the donor or caused him serious bodily harm. The court's verdict in criminal proceedings will be the basis for issuing a decision to cancel the gift agreement.
- When the gift agreement contains clauses related to the implementation of specific obligations/actions on the part of the recipient of the rights to the property, but such clauses were not fulfilled, this is also a way to cancel the deed of gift for the apartment.
- If the signing of the agreement in question involves another transaction, for example, a sale, and the donor will therefore lose his only place of residence, then the court will also cancel the real estate gift agreement between relatives.
- In the absence of proper maintenance of cleanliness and respect for the integrity of the apartment received free of charge, as well as in the deliberate infliction of damage to the housing, which led to a decrease in its marketable value.
- If the object of donation is pledged or under arrest, the cancellation of the agreement on the gratuitous transfer of the apartment when such a fact is revealed is carried out automatically. In this case, a court order is issued, on the basis of which information about the gifted owner is excluded from the state register in the Federal Service Administration.
- In addition, the gift agreement is invalidated if it is proven in court proceedings that the property was taken by:
- According to a fraudulent scheme;
- Through physical violence;
- By intimidation.
The court is obliged to accept and consider the statement of claim in any case, with the exception of only a few situations:
- The application was not submitted to the jurisdiction specified in Art. 28 Code of Civil Procedure of the Russian Federation.
- The applicant did not pay the state fee.
The court may refuse to satisfy the application in the following cases:
- The statement of claim is drawn up incorrectly or the essence of the requirements is not clear from it.
- The demands put forward are unfounded and meaningless.
- The attached evidence is incomplete or dubious.
- The applicant wishes to commit illegal acts.
Cancellation of donation is provided for by current legislation and only in certain cases specified by law. This can be done through the court, by filing an appropriate statement of claim.
