Do you need your spouse's consent to donate an apartment in 2022?

Article updated: December 21, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. Here I have described the situations when, when donating an apartment, the consent of the owner’s spouse will be required, and in which it is not required. Below are the instructions and cost of registration. Although, according to the law, the transaction will be registered without obtaining consent, this should not be done - more details.

My detailed instructions are how to formalize the donation of an apartment in 2021.

A small digression - if you need a free consultation, write online to the lawyer on the right or call (24 hours a day, 7 days a week): 8 (499) 938-45-78 (Moscow and region); (St. Petersburg and region); (all regions of the Russian Federation).

Options for the legal regime of spouses' property

Family relationships directly affect the property rights and responsibilities of spouses. As a general rule, any property assets acquired by citizens during marriage become their joint property.

Joint ownership of property, including residential real estate, is characterized by the following features:

paid and gratuitous disposal of real estate can only be carried out by common consent and decision of both partners;
The division of the apartment and the allocation of separate shares for each of the owners can be carried out at the request of any partner.

To change the standard rule on joint ownership, citizens must include this condition in the contracts under which they acquire property assets.

In addition to joint ownership, real estate may belong to partners in other forms of ownership provided for by civil and family law:

shared form - each of the owners owns a certain share in the common law, the amount of which is established by mutual agreement of the parties;
personal form - housing that belonged to the newlyweds during the period of marriage, as well as apartments that the spouses received during the marriage through gratuitous transactions (donation, inheritance, privatization agreement);
separate form - established as a result of a change in the joint form of ownership by concluding a mutual agreement or a marriage contract.

Each of these forms of ownership is characterized by different features of donation, which will affect the obligation of the parties to formalize consent to carry out this gratuitous transaction.

Stage No. 2 - contact the MFC or the Registration Chamber (UFRS) to register the donation transaction

If the gift agreement is drawn up in a simple form (without notarization), the participants in the transaction themselves submit documents for registration. Starting from 2021, in many cities you can submit documents for registration only at the MFC, from where they are transferred to the Registration Chamber. In most cases, the Registration Chambers no longer accept citizens directly, but only through an intermediary in the form of the MFC. If in your locality you can submit documents directly to the Registration Chamber, it is better to do so.

There is no difference in submitting documents to the MFC or the Registration Chamber, so in the instructions I indicated through the MFC, because this is a more common case.

Parties to the MFC donation agreement with other documents.
If the donee is under 14 years old, one of the parents (guardian, trustee) specified in the agreement must be present and sign the agreement instead. If he is between 14 and 18 years old, he is present together with one of the parents (guardian, trustee).
The state fee for registration is 2,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). Payment details can be obtained from an employee. The cash desk is usually located in the MFC building or nearby. The state duty is paid by the donee and is indicated on the check, but in practice it makes no difference who does it.
After paying the state fee, in order of priority, give the original documents to the employee:
Donation agreements;
The number of copies of the agreement is equal to the number of parties to the transaction. For example, if there are two donors and one donee, 3 copies are needed. There is no need to make a separate copy for Rosreestr, because They stopped maintaining a paper archive of documents as part of the “Stop Paper” project.
Agreements are signed by both parties. If the agreements are in a simple form, you can sign them in advance or in front of an MFC employee. There is no difference here. If the agreement is in notarial form, it is signed only in front of a notary.
For a donee under 14 years of age, the contract is signed by one of the parents (guardian, trustee). If he is between 14 and 18 years old, he signs together with one of the parents (guardian, trustee).
Consent of the donor's spouse certified by a notary;
When you need it, check out the link for details. Briefly - when the donor-owner bought an apartment during marriage. In this situation, it is considered the joint property of BOTH spouses, even if it was registered in the name of only one of them - clause 2 of Article 34 of the RF IC. Consent is issued only by a notary - clause 3 of Art. 35 IC RF. Costs 1,500 - 2,000 rubles. Additionally, a marriage certificate will be required.
If a proxy acts for one of the participants in the transaction - a notarized power of attorney (original and copy). However, donors cannot issue a power of attorney for the donee to sign a gift agreement for him, and vice versa. Because the donor and the donee cannot be the same person - clause 3 of Article 182 of the Civil Code of the Russian Federation. They have the right to issue a power of attorney to each other only for submitting an agreement for registration and receiving it, but not for signing.
Marriage or divorce certificate;
If the donor has ownership of the apartment in one surname, but now has a different surname in his passport.
Receipt for payment of state duty.
Based on the documents received, the employee will draw up applications for registration of rights, which donors and recipients must check and sign .
Then the MFC employee will pick up the documents (except passports), give each participant a receipt for their receipt and set a date when they can be picked up .
The documents will be sent to the registrar. Now all that remains is to wait for the transaction to be registered. According to Art. 16 of the Federal Law of July 13, 2015 N 218-FZ maximum registration period: 9 working days when submitting documents to the MFC; 7 working days when submitted directly to the Rosreestr branch. Due to the workload of Rosreestr, there are sometimes delays. To clarify the completion date, you can call the phone number indicated on the receipt.
On the appointed day, donors and recipients must pick up their copies of the agreement with a state registration mark at the MFC . They do not have to pick them up at the same time, but can be picked up separately at different times and days. The recipients will also be given a new extract from the Unified State Register for the apartment, in which they will be indicated as the new owners. Property registration certificates have been canceled and will not be issued as of July 2021. It is enough to have your passport and receipts issued by the employee.

Other articles
Tax when donating an apartment - amount, who pays, payment procedure, when you don’t have to pay After donation, the new owner can safely register in the apartment

If the gift deed was certified by a notary

In this situation, the notary is obliged to submit a certified registration agreement himself, free of charge and immediately - Art. 1 of the Federal Law of August 3, 2018 N 338-FZ and clause 2 of Art. 22.1 Basics about notaries. This is already included in the transaction certification service. Explanations from the Federal Chamber of Notaries can be found here.

Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to file electronically, he or his assistant is obliged to file in the traditional way within a maximum of 2 working days. The registration period will then be 3 working days. All this is indicated in paragraphs. 9 clause 1 art. 16 Federal of July 13, 2015 N 218-FZ.

In addition to certification services, the parties must pay the notary only the state registration fee - 2,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount, so the state fee is reduced to 1,400 rubles. It is paid for by the donee, but in practice the notary doesn’t care who gives the money.

After the transaction is registered in the Unified State Register of Real Estate, the recipients will become the new owners of the apartment. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.

Gift of joint property

Any options for disposing of joint real estate require obtaining the consent of the second spouse; this rule also applies to cases of donation of residential premises.
Consent will be required even if the apartment was registered as the property of only the husband or wife, but common family funds were used to purchase it. Registration of the consent of the second spouse takes into account the following features:

if ownership of an apartment is established simultaneously for both citizens, in order to donate housing they will need to both act as a donor (a power of attorney can be issued to the second spouse);
if the housing is registered in the name of only one spouse, the second partner will express consent in the form of a written document with mandatory notarization.

In case of joint ownership, donation of an apartment without the consent of the spouse is not allowed; this fact will be verified at the stage of the registration procedure by the Rosreestr authorities.

A similar rule applies if a donation is made of an apartment owned by shared ownership. Without the participation of the second shareholder, the apartment cannot be re-registered to the donee.

How to apply?

The process of obtaining permission to transfer housing as a gift from a spouse is not particularly problematic.

Since this document must be notarized , the easiest way is for the husband and wife to contact a notary office.

There they will prepare and fill out a standard consent form for you, which you only have to sign.

You can find out about the cost of registering a deed of gift for an apartment with a notary, as well as how to register it at the MFC or Rosreestr on our website.

You will need to bring with you a certificate of real estate being donated, the applicant’s passport and a marriage certificate. If available, take your marriage contract .

If you really want, you can draw up this document yourself . It must contain the following items:

information about the property being donated;
no claims clause;
personal and passport details of the other half;
an indication of the type of transaction to which consent is given;
additional conditions under which the spouse gives his permission.

In any case, this document requires notarization . It is submitted along with the main package to the registration chamber. If the alienation is carried out at a notary, then the application is presented there as well.

Read our article about the rules for registering a deed of gift for an apartment in Rosreestr.

Gift of personal or separate property

If residential premises are officially the personal property of citizens, or in the process of marriage relations a separate ownership regime was determined, the donation can be made without obtaining consent. The personal property of partners may include the following real estate:

apartments acquired by citizens before the official moment of marriage (the method of acquisition has no legal significance);
residential premises that were re-registered as the property of one of the partners as a result of participation in a privatization transaction, if the second spouse refused to participate in privatization;
apartments given specifically to one spouse, or received by him as a result of inheritance by law or by will.

Note! If, during the marriage relationship, at the expense of the funds of the second partner or common family funds, personal property was significantly improved with a significant increase in value characteristics, the notarized consent of the second spouse will be required for the donation.

The need for permission to transact

Do I need my spouse's permission to transfer living space as a gift?

The procedure for execution and registration of a gift transaction is regulated by law.

If the rules established by the code are not followed, the transaction will not be considered valid.

Let's look at this process in detail.

If you are the owner of a living space and plan to give it to a relative or friend, you will need to collect a standard package of documents.

These are papers confirming the rights to own and dispose of property, its technical condition, and the absence of debts for the use of utilities.

All these papers relate directly to the object, and show that the transaction can be carried out: the apartment is available, the square footage has been determined, there are no debts to housing and communal services. Ownership rights arose as a result of a specific transaction and are documented.

If you are married, the notary or the registration chamber will also require the consent of the spouse to transfer the housing as a gift. Why is it needed?

The presence of this document shows that the second spouse is aware of the upcoming procedure, has no complaints regarding the transaction, and his property rights have not been violated.

As a result, you cannot go to court and terminate the contract by revoking your permission. The party registering the transaction has received confirmation of the legality of its execution .

Therefore, when transferring an apartment as a gift, an application from the second spouse is necessary. True, there are exceptions . It all depends on when exactly the object being donated was received into ownership, as well as as a result of what transaction the rights to it were transferred to you.

If there is a marriage contract regulating the property relations of the husband and wife, you need to pay attention to the clause regarding the disposal of housing acquired during marriage .

If the object was acquired by a spouse and is considered his sole property , then permission to transfer it as a gift from the second spouse may not be required.

Sample of spouse's consent to donate an apartment.

Peculiarities of obtaining spouse's consent

The legislation provides for only one option for registering the spouse’s consent to the alienation of real estate - drawing up a written document with mandatory notarization. Drawing up consent in simple written form, as well as an oral form of consent, is not permitted by law.

To obtain consent, a citizen must contact any notary office of his choice and submit to the notary the following documents:

general passports of both spouses;
marriage certificate;
title documents for residential premises (certificate of title or extract from the Unified State Register of Real Estate);
a gift agreement under which real estate is disposed of free of charge.

The notary will check the existence of common rights of the spouses to the property that is to be donated. If citizens are mistaken in good faith regarding the general rights to an apartment, the notary is obliged to explain this fact to the spouses.

The notarial consent of the spouse to donate an apartment is issued on a fee basis; the amount of the tariff must be clarified at the notary's office when handling the documents. As a rule, the preparation of this document is carried out by the notary himself or employees of the notary office, since at the same time the need to issue consent is established.

Consent to the gift will be required regardless of who the recipient is. This rule applies even to cases where the recipient of the gift is the common child of the partners. The spouse’s consent to donate an apartment to a child will be formalized according to general rules, and its availability will be checked by the registration authority.

The execution of consent differs significantly from a power of attorney, despite the similar nature of the regulated legal relations. The difference is this:

consent does not give the right to dispose of property assets, as this is provided for by powers of attorney;
unlike a power of attorney, notarial consent is not subject to cancellation or termination due to its validity period;
consent can be issued only for a specific property, while powers under a power of attorney may provide for the performance of actions simultaneously with various objects.

Notarial consent does not have a validity period, so the decision to issue it must be made consciously. It is also impossible to revoke previously issued consent if the transaction was delayed for objective reasons. In this case, the spouse who executed the document can contact the Rosreestr authorities directly, notify in writing of a change in his own decision and warn about his disagreement with the conclusion of the gift agreement.

spouse's consent to donate an apartment

In other cases of donation

In some cases, government agencies do not ask the consent of the second owner (spouse) for donation. Then citizens can donate property without the knowledge of the second spouse, and then present the spouse with a fait accompli, or do not tell him about it at all. This is prohibited by law. If property was acquired during marriage, it can be donated only with the consent of the second spouse. After all, any thing acquired during marriage belongs equally to both the husband and the wife.

Giving to children. A number of citizens believe that if a gift is given to children, that is, the recipient is a child, regardless of age, then consent is not necessary. This is also incorrect. The fact of kinship is misleading. Thus, consent is also necessary in this case.

Consent is not needed only when the object of the gift agreement, that is, what you want to give, is personal property. In other words, if, for example, the property was acquired by you before marriage, received under a gift agreement or inherited. Although, if, for example, inherited property was repaired with the money of the second spouse or through his labor, and thereby increased in value, the second spouse may have rights to a share in such property. This is formalized voluntarily, by written agreement between spouses (various contracts) or in court (by filing a statement of claim in court).

Features of obtaining consent after divorce

Even after the official termination of family relations, spouses may retain common property rights to real estate acquired during the marriage. This happens in the following cases:

if, before the divorce, citizens did not make demands on each other to divide joint property assets or determine shares in it;
if during the divorce proceedings similar demands were not presented as part of the claims.

In this case, the joint regime of real estate is maintained even after the separation of the spouses and remains in force until the divorced citizens carry out a division or until the rights to the property are transferred to third parties with the consent of both owners.

Registration of notarial consent after a divorce will be carried out according to general rules, however, instead of a marriage certificate, citizens must present to the notary a similar document on the termination of family relations.

In what cases is consent required?

If spouses acquired property with joint money during marriage, the consent of the second spouse is required. For example, in the following cases:

purchase and sale;
privatization of land with redemption of surplus;
provision by the Administration of housing under a purchase and sale agreement;
equity participation in construction;
court decision (not always), etc.

In what cases is consent not required?

If the citizen received property before marriage for any reason (if there is no dispute between the spouses);
Under gift agreements;
Property was received by inheritance;
when a marriage contract has been concluded for such property;
After the privatization process;
In other cases, when joint money was not involved in the process of acquiring property...

Consequences of giving without consent

Since the execution of notarial consent is a mandatory requirement of the law, its absence will be grounds for declaring the transaction invalid. The procedure for recognizing the invalidity of transactions, as well as the consequences of such a procedure, are regulated by the Civil Code of the Russian Federation.

A claim for invalidity may be filed by any interested party whose rights were violated by such actions of the parties. In practice, in this case only the rights of the donor’s family members may be violated, including not only the spouse, but also the potential heirs of the donor.

To challenge gift transactions, a three-year statute of limitations is provided, during which interested parties must apply to the judicial authorities. If the fact of lack of consent is duly confirmed during the consideration of the claim, the donation transaction will be declared invalid. In this case, the donated real estate is subject to transfer back to the previous owner, which does not deprive the right to subsequently formalize the donation properly with obtaining notarial consent.

Is it possible to do without a notary?

Only cases where the apartment does not belong to both spouses on a common basis will allow you to do without obtaining consent from a notary. For this reason, when preparing to sign a deed of gift, it is important to establish under what circumstances the rights were issued.

Establishing the fact of sole ownership frees you from the need to visit a notary in the following situations :

receipt of residential meters under a free transfer agreement;
registration based on the fact of donation;
inheritance.

The above grounds allow us to consider the acquired real estate as the personal property of one of the spouses, regardless of whether the marriage relationship is registered and the time of registration. This right is enshrined in the provisions of Art. 36 IC RF.

To avoid misunderstandings when signing a deed of gift, it is necessary to notarize a separate statement establishing the absence of grounds for claims to real estate on the part of the second partner.

statements Consent of the spouse to donate the apartment. Sample (17.1 KiB, 557 hits)

If the spouses are already divorced

Divorce is not a basis for exemption from the obligation to obtain written consent if the apartment was purchased by a married couple during the marriage. Even after a divorce, legal rights to the apartment are retained as an object acquired jointly during the marriage. This situation occurs quite often if spouses bought an apartment during marriage, and after the divorce did not make a property division and did not determine the procedure for shared ownership.

If, after a few years, the former partner wants to donate housing, the transaction will be declared invalid if it turns out that the apartment was purchased during the years of marriage and belongs to both partners equally. Until the notarized consent of the former spouse is received, no legally significant real estate transaction is possible.

Registration of a gift in violation of the procedure

A donation is an alienation of real estate, formalized in accordance with the provisions of federal law. The absence of a document from the second spouse, even if the other partner is officially the owner of the property, will allow the donation to be declared invalid, executed in violation of family and civil law.

If, for some reason, a spouse learns of the fact of a gratuitous transfer of property to another person, even if it is a common child, the deed of gift will be invalidated if the interested party makes a demand to invalidate the gift agreement.

The second spouse can appeal the deed of gift, having it declared invalid, at any time during the three-year statute of limitations in force in Russia. The basis for declaring a transaction void will be a court decision on the claim of the spouse alleging a violation of the rules for registering the transfer of ownership.

After the verdict is rendered, the property donated will be returned to the previous owners, and the transaction will be cancelled. In the future, you will have to go through the procedure of registering a deed of gift again, strictly observing the requirements of the law and obtaining notarial consent.