The Cadastral Chamber explained how to properly donate apartments and houses

From a legal point of view, the gift of a dacha is an agreement in which two or more parties participate, one of which is called the donor and acts as the direct owner of the property, which it transfers free of charge to the person/s called the donee party. According to current legislation, this transaction must be formalized in 2021 by an agreement concluded in simple written form (in accordance with the provisions established by Article 574 of the Civil Code of the Russian Federation).

It should be remembered that since the country house is located on a plot of land, and the law does not separate these real estate objects from each other, they are transferred by deed of gift only together ! Simply put, the donor cannot give, and the donee cannot accept, only a plot of land or just a house. Otherwise, the transaction will be considered invalid!

Since the dacha (together the plot and the building/structures) refers to real estate, then, based on the rules established by the legislator for real estate transactions, ownership from the present to the new owner can be transferred only after state registration of the dacha donation agreement in 2021 !

Now, let's take a closer look at the main nuances of donation and the most common mistakes leading to the invalidity of the transaction.

Legislative regulation

The natural consequence of drawing up a gift agreement will be the transfer of property to the recipient free of charge.
A desire to make a gift to a third party, expressed orally, has no legal force. The contract must be drawn up in writing, this is the requirement of Art. 574 of the Civil Code of the Russian Federation. What requirements must the contract meet:

1. Free transaction. Absence of conditions and reservations on the part of the donor and recipient.
2. Consent of the recipient to receive the subject of the transaction.
3. Delayed transfer of a gift is allowed after certain conditions have been met. Such a condition cannot be the death of the donor, since in this case it is necessary to draw up a will.

In this way, you can donate both the entire dacha plot and part of it. If the donor owns the plot jointly with his spouse under the terms of community property, the written consent of the husband or wife will be required.

Features of donating property jointly owned by spouses

The provisions of Art. 256 of the Civil Code of the Russian Federation, the legislator established a regime of joint ownership of all property acquired by spouses during marriage , except in cases of receiving it as a gift and inheritance. Also, the results of intellectual activity and personal items do not belong to such property.

Additionally

According to paragraph 2 of Art. 576 of the Civil Code, donation of joint property is permitted with the consent of all co-owners , which, however, is initially presumed.

So, according to paragraph 3 of Art. 253 of the Civil Code, each of the spouses has the right to donate their joint property, unless the marriage contract concluded between them provides otherwise. Taking into account the presumption of consent to donation on the part of the other spouse (clause 2 of Article 253 of the Civil Code), each of them can donate joint property to anyone, in fact, without asking permission from the second spouse.

If one of them was against the alienation by the second spouse of jointly owned property, then the first has the right to have the transaction declared invalid . However, there is only one basis for this - the donee knew or should have known that the donor’s spouse was against the donation, otherwise the transaction is considered valid (clause 3 of Article 253 of the Civil Code).

An exception to which the presumption of consent of the second spouse does not apply are cases of donation of real estate that is jointly owned, as well as cases of donation of common property that require notarization. So, according to paragraph 3 of Art. 35 of the Family Code, such a gift is permissible only with the notarized consent of the second spouse .

Cases of donation of joint property between the spouses themselves require special consideration. Since the joint ownership regime does not involve the allocation of shares of property, each spouse has it equally. Based on this, donating such property between spouses without dividing it is not possible .

Cases of donation between spouses of their joint real estate deserve special attention. Since both spouses already own the property, it must be transferred from joint ownership to shared ownership. This is feasible within the framework of Art. 38 IC, by dividing it into shares and subsequent state registration of each of them. Only after the shares have been allocated , one spouse can donate his share to the second spouse.

Registration at the MFC

To register a deed of gift for a dacha through the MFC, the donor must prepare in advance a list of documents confirming ownership of the object.
The procedure is as follows:

1. Drawing up a draft gift agreement in 3 copies, a standard sample will do.
2. Preparation and collection of documentation.
3. Personal appearance of the parties to the transaction at the nearest MFC (at the place of registration of one of the parties to the transaction, or at the location of the property). Submitting documents to the center employee, signing the application for registration of the gift, receiving a receipt for the submission of documentation. The applicant is informed of the expected date of document readiness.
4. Waiting for the deadline for registering the right (no more than 10 days from the date of receipt of the documentation at Rosreestr).
5. Repeated appearance at the center. Receive an extract from the Unified State Register of Registered Rights to the property.

What documents are required

By the time you appear at the MFC, the following documents must be prepared:

• confirmation of the donor's ownership of the dacha plot;
• passports of the parties to the transaction;
• receipt for payment of state duty;
• consent of the donor’s marriage partner, notarized (if the dacha was acquired during marriage);
• certificate of inventory value;
• a certificate of family ties between the parties to the transaction, if any;
• consent of the recipient's representative if he is a minor.

Reference! In the MFC, when drawing up a deed of gift, the presence of both the giver and the recipient of the gift is required. When concluding a gift transaction, you should check the availability of all necessary documents and their relevance. Since any inaccuracies may lead to its recognition as invalid. This can happen if other relatives are interested in the property.

Donation agreement for a dacha with a plot of land

It is worth remembering that, first of all, donating a dacha means alienating a plot of land and a house! Thus, in order to carry out a transaction, the donor must legally own this property and have the appropriate title documents, the absence of which leads to the nullity of the gift transaction.

Example of lawyers from the website “Legal Ambulance” No. 1

Citizen O. considers himself the legal owner of a dacha (a country house located on a small plot of land). At the same time, this person did not take care of the mandatory registration of ownership of the objects listed above - and, therefore, he does not have title documents to carry out any transactions with this property. However, he himself can continue to use the dacha.

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Example of lawyers from the website “Legal Ambulance” No. 2

No less rare are cases when the owner of a dacha registered only a plot of land, without legally registering the house built on it. In such cases, theoretically, the donor can formalize the donation of the land plot, and the registration of the building will fall on the shoulders of the party receiving the dacha in the future.

Not everyone will agree to accept a gift under such conditions, because there is a chance that when re-registering land ownership, Rosreestr employees will require a certificate stating that there are no buildings on the site!

Expert opinion

Lyudmila Kim

Invited expert: author of the “Child Support” blog, practicing family lawyer, 7 years of experience.

Remember that when drawing up an agreement, the donor is obliged, in addition to a detailed description of the house, to give the same detailed description of the site on which it is located with the obligatory indication of the boundaries of its land survey, the purpose of using the land and its category of purpose.

Today, the document of title for the land plot mentioned in the donation agreement can be an act of granting land for perpetual possession, as well as a lease agreement and a certificate of ownership of the plot.

After mandatory state registration of ownership of the new owner, the donee receives 2 separate certificates of ownership for:

• residential property;
• land plot.

Gift deed between close relatives

Close relatives are:

• brothers and sisters;
• relatives in ascending and descending lines.

If the donor and the recipient are related (as confirmed by a document), the transaction is exempt from tax, in accordance with Art. 217 Tax Code of the Russian Federation.

At the same time, participants in the transaction who are relatives do not pay only the 13% tax, but are not exempt from paying state duty, as well as other related payments.

If the parties are not related, they are required to pay 13% of the cost of the plot. In addition, they still have the obligation to pay state fees.

Re-registration procedure - where to apply and what to do

In order for the house and the area around it to acquire a new owner, it is necessary to find out where to go for re-registration and the procedure for the procedure itself.

Instructions:

1. First, clarify the possible nuances of the procedure, how neighbors register their plots. Interview the owners of nearby plots; surely someone has had experience with the registration.
2. Before re-registration it is necessary to carry out land surveying for the area. This is a geodetic procedure that helps a specialist determine the plot size and mark the boundaries. The results are then reflected on the document. The result is agreed upon with the neighbors, with whom the future owner has a common border.
3. Get the original cadastral passport. There, in addition to the number assigned to the site, a detailed plan of the site is indicated, the boundaries are described (their coordinates, the distance of all buildings).
4. Receive circulars for all buildings actually located on the site (house, barn, work premises, bathhouse). To do this, visit the BTI. The future owner leaves an application there, according to which experts will come out. They will measure and study the buildings, then enter the results into the technical and cadastral passports of all objects.
5. Collect accumulated circulars. You may have to include a gardener's book there, although this is your private internal document. Often the registration procedure is a joint effort, when the new owner is helped by a partnership.
6. Submit all received circulars to Rosreestr (at the same time, you must pay a fee and attach a receipt to the submitted papers).

If the materials are all prepared according to the standards and there are no problems, the verification and re-registration procedure will take only 10 days. Then the new owner is given a certificate confirming his rights with an extract from the registry. The certificate secures the rights to use the land.

Deed of gift for a summer cottage

The donation agreement for a dacha must contain the following mandatory sections:

1. Passport details, full name and addresses of the parties.
2. The subject of the contract, its distinctive features and characteristics (address, type, area, cadastral number).
3. Confirmation of the donor's property rights.
4. Presence of encumbrance.
5. Rights and obligations of the parties to the transaction.
6. Signatures and date.

Attention! If the parties to the transaction are related, for example, a deed of gift for a dacha is being drawn up for a daughter, this must be indicated in the agreement. Since this circumstance entails exemption of the parties from paying personal income tax.

In order for property rights to be transferred to the daughter, it is necessary to register the transfer of rights in Rosreestr. To do this, you can contact the MFC at the place of registration of the donor or recipient, or the location of the site.

What is more profitable: a will or a deed of gift?

If we summarize the benefits of a deed of gift and a will solely from the financial side, it is more profitable to draw up a deed of gift for a dacha if there is a close relationship. If it is planned that the dacha will pass to distant relatives, preference is given to a will.

Although the differences between a will and a deed of gift are not only financial in nature. If you have several obligatory heirs (disabled people, children), and you want to bequeath the property to one person, it is worth choosing a deed of gift, otherwise, in court, the legal relatives can regain their due shares. The deed of gift in this case is also good because it is impossible to challenge it in court.

Based on what has been written, it turns out that when asked whether a will or a deed of gift is more beneficial, one can safely give the privileges of a deed of gift. Although in reality it all depends on the situation. Even with relatives, the profitability of the gift remains in doubt.

We should not forget that immediately after signing this document, the donor completely loses the rights to this property and, under bad circumstances, the new owner of the dacha with the plot can easily kick the donor out the door. It will be pointless to go to court, because the deed of gift is not disputed. The picture is completely different with a will, which comes into force only after the death of the previous owner.

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Registration by a notary

Registration by a notary is not a requirement.
This entails additional expenses. But this item is desirable for those who want to further secure the transaction. Completing a transaction in the presence of a notary is an additional guarantee of the legality and voluntariness of the donation. The contract will be stored in the archive, and if lost, it can be restored. In addition to the mandatory expenses associated with the registration of a deed of gift (state duty, tax, if necessary), you will have to additionally pay for the services of a notary. Depending on the region, the cost starts from 2000 rubles.

A state fee is also paid for notary services; their amount is tied to the estimated value of the dacha with land, as well as the degree of relationship.

For example, when issuing a deed of gift for a daughter who is a close relative, the rate will be 0.3% of the value of the gift.

For distant relatives, the rate is 1% if the value of the gift is no more than 1,000,000 rubles. If more, then the rate will be 0.75%, in addition to which you must pay another 10,000 rubles.

The parties can independently agree on who pays the obligatory payments.

Inheritance of several real estate objects

You can inherit any real estate: dachas, cottages, apartments, land plots. An exception to the rule established by law, according to which, for example, country real estate, land and water (ponds and lakes) are inherited, is only something that is determined by the personal characteristics of the one who transfers the inheritance. As an example - plans, religious beliefs, the need to pay alimony.

But the rights of the heir or heirs regarding membership in commercial and non-profit associations may well be inheritable. Let's say we are talking about a garden plot - real estate here is most often small country houses - you can inherit it, and the process of transferring rights does not take much time.

The plots for construction (individual housing construction) purchased by the testator are also inherited - the problem is only by whom and to what extent (share). In cases where difficulties arise in determining who should inherit a particular piece of real estate, it makes sense to turn to the Civil Code of the Russian Federation. It spells out in sufficient detail all the instructions on the right of priority in the matter of receiving an inheritance in the form of real estate.

However, it should be taken into account that there are some restrictions on the inheritance of country real estate: they are stipulated either by the charters of commercial and non-profit organizations, as well as by special legislative acts - created precisely to describe special cases of inheritance.

Thus, problems may arise when trying to transfer the land around the house to children by will, if it was only leased and not owned. In this case, if the owner had other relatives besides the heir, you should be prepared for the fact that registering an inheritance could turn into a real headache.

Therefore, before you start registering an inheritance for a dacha or plot of individual housing construction, SNT or private subsidiary plots, it is worth carefully studying the Civil Code, in the part where inheritance issues are considered.

Nuances

The following situations may lead to recognition of the invalidity of a transaction:

1. Identification of facts of exerting pressure on the donor in order to force the transaction.
2. Attempt on the donor's life.
3. Incapacity of the donor, poor understanding of the consequences of his actions. Relatives who have claims to the disputed property may try to prove these facts in court. But they will have to provide significant evidence of incapacity: certificates, photos, videos.
4. Errors and lack of specificity in the contract. For example, the inability to identify a gift based on the characteristics specified in the document.
5. Bankruptcy of a legal entity within six months after the donation. In this case, creditors can go to court.

There are situations when the recipient dies as soon as he takes possession. In order for the donor to receive the donated property back, it is necessary to provide for such a situation and mention in the contract the possibility of return in exceptional cases.

Giving without the consent of the spouse

As already mentioned, the regime of joint ownership of spouses applies to almost all property acquired by them during marriage, except for cases of acquisition of property by gift, inheritance, through intellectual labor and the acquisition of things for individual use (Article 256 of the Civil Code).

Without the consent of the spouse, only those things that are not subject to the regime of joint ownership can be given as a gift. In addition to the above, the property that was acquired by each spouse before marriage is added to them.

Important

According to paragraph 2 of Art. 253 of the Civil Code, donation of property jointly owned by spouses is permitted only with the consent of the second spouse . However, according to paragraph 2 of Art. 35 of the Family Code, when making a donation of common property by one of the spouses, it is initially assumed that he acted with the consent of the other.

At the same time, if there was no such consent to the donation on the part of one spouse, and the second spouse nevertheless alienated the joint property, in accordance with clause 3 of Art. 253 of the Civil Code, such a transaction may be declared invalid . However, to do this, the spouse interested must prove the very absence of such consent, as well as the fact that the donee knew or should have known about it.

Donation of real estate subject to the regime of joint ownership. According to paragraph 3 of Art. 35 of the IC, such a transaction is permissible only with the notarized consent of the second spouse .

When donating real estate without such consent, the spouse whose consent was not obtained has the right to petition on this basis to have such a donation declared invalid . To do this, he is given one year from the moment he learned or should have learned about its commission.

Example

Citizen V. entered into a deed of gift with his brother, according to which he gave him a car that he bought immediately after his wedding with B., using the money he donated. B. did not know about the conclusion of this transaction and, since she was against its conclusion, filed a lawsuit to have it declared invalid. In court, she argued her position by the fact that the property donated by her husband, according to Art. 256 of the Civil Code, was in their joint ownership. Based on this, its donation was allowed only with the consent and in the interests of all co-owners. Since her interests were violated by such a donation, especially since she did not give consent to it, she asked that the transaction be declared invalid.

Having heard B.’s position, the court explained to her that, in accordance with paragraph 2 of Art. 35 of the Family Code, a transaction completed by one of the spouses is presumed to have been completed with the consent of the second spouse. At the same time, in order to recognize invalidity based on the lack of such consent, B. had to prove that the donee knew or should have known about its absence. Since this was not proven, the court rejected B.’s claims.