Donation agreement with encumbrance for an apartment in 2022

Author of the article: Anastasia Ivanova Last modified: January 2021 3617

Often in legal practice there is also an agreement for donating an apartment with an encumbrance. What this transaction means and what problems its participants will have to face when preparing the necessary documents will be described below.

Transactions carried out with real estate are very difficult to carry out without the help of specialists, since in the process of their execution one has to deal with many nuances that require legal knowledge. In the last decade, transactions for the transfer of living space as a gift have become very popular.

When can an encumbrance be used?

A donation with an encumbrance for an apartment can be received by the donee in the following cases:

rent;
if the property is cultural property;
seizure of property;
trust management;
annuities with life maintenance;
mortgages;
guardianship

Based on data provided by real estate market experts, the most popular encumbrance option is presented in the form of a mortgage. Lifetime annuities are also popular.

Contract form

The requirements of the Civil Code of the Russian Federation for the form of donation can hardly be called strict. The transaction can be concluded orally, in writing and through implicit actions (transfer of keys, ceremonial delivery). Regulatory regulations on this matter are concentrated in Art. 158-165 and Art. 574 Civil Code of the Russian Federation.

An oral transaction is permissible for movable property if it is transferred at the time the contract is concluded. Conversely, when the transfer of a thing and the transfer of ownership are delayed in time, the law requires a documentary form.

Written form is required for gift agreements worth more than 3 thousand rubles. , if the donor is a legal entity.

Additionally

With the introduction of mandatory state registration of real estate transactions in the Unified State Register, the need for their notarization has disappeared. However, the parties to a gift agreement have the right to draw up any gift agreement with a notary, even one that, according to the Civil Code of the Russian Federation, can be completed orally.

Currently, only the fact of transfer of ownership of a donated property is subject to registration in the Unified State Register. The gift agreement does not need to be registered .

Encumbrance in the form of collateral to a trusted person

Any type of encumbrance can be placed on residential real estate. The donor, in order to minimize the risk of losing his home, carries out the procedure of registering an encumbrance on a trusted person who is closely related to him. This is the most common type of pledge issued to a trustee. Often, either the parents or the children are chosen as the trustee. If this particular option of encumbrance is present, then the home owner, before any procedure with real estate, will have to discuss this issue with its mortgagee.

Expert commentary

Leonov Victor

Lawyer

This type of encumbrance is drawn up in any notary or legal office after providing the required package of documents from both parties to the gift agreement with this type of encumbrance.

Special types of encumbrances

There are a number of hidden encumbrances. These include life lease agreements and annuities. According to these types of agreements, the restriction of rights is given for an indefinite or specific period.

A separate category of encumbrances is the presence of minor children. If there are such tenants, it is impossible to conclude a gift agreement. The sale of real estate is permitted only with permission given by the guardianship authorities.

Similar articles:

How to draw up a gift agreement correctly
What is better - a will or a deed of gift for an apartment?
Is it possible to terminate an apartment donation agreement?

Some of the encumbrances can be removed. This is possible in the following cases:

All financial obligations have been fulfilled in full (for example, the mortgage has been paid off).
The claims have been eliminated, and therefore the ban on donation imposed by the court can be lifted.

If, despite the difficulties, the parties agreed to enter into an agreement, they must solve problems that are related to ensuring the legitimate interests of the citizen or legal entity in whose favor these restrictions are established.

Encumbrance in the form of rent

A deed of gift for residential real estate can be executed with a rental encumbrance. For this purpose, the owner of the apartment should conclude a separate agreement, which will indicate that the donee is obliged to maintain him for life and only after his death and all conditions are met, the living space will become his property. In this case, the agreement will be called a deed of gift with dependency.

Until the actual withdrawal of rent occurs (death of the apartment owner), the payer (the donee) will not be able to fully dispose of the residential property. The recipient will be able to become the full owner of the apartment not only after the death of its owner, but also if he decides to remove the encumbrance. This type of gift deed is widespread in Russia, so people often seek legal assistance regarding its conclusion.

How to use

If a citizen donates his apartment with a lifetime right of residence, this means that he actually has the right to live on the above-mentioned meters until his death. The procedure must be regulated in the contract. For example, it can be recorded that the former owner lives strictly in one room and uses common areas, or vice versa - he can live in any of the apartment’s rooms except one.

In any case, the opportunity to use all the property located in the house remains with the donor for life. The most important advantage is the fact that he no longer has to pay for utilities.

In addition, if the agreement stipulates the right of relatives to live with the donor, then it remains until his death or for a certain period of time, if this is indicated by the terms of the agreement.

Encumbrance in the form of a mortgage

One of the most common types of encumbrance when drawing up a gift deed is an outstanding consumer loan or mortgage. In this case, before completing the transaction, you need to resolve all issues with the owner of the property and also clarify what obligations he has to the banking structure.

A deed of gift encumbered with a mortgage can only be drawn up if the lending banking institution gives its consent. This procedure is carried out to check the solvency of the donee and to ensure that guarantees for the payment of the mortgage loan are maintained. The situation can be simplified if the transaction is finalized only after the actual balance of the mortgage loan has been repaid.

Expert commentary

Potapova Svetlana

Lawyer

Sometimes an option for drawing up a gift agreement is also allowed, when the mortgage is paid by the actual owner of the property, and the donee, according to the gift agreement, is a participant in the rent. This implies that the donor will pay the mortgage for the rest of his life, while the donee will be free from these obligations.

However, in order not to make a mistake and draw up a gift agreement with a mortgage encumbrance, you should consult a lawyer, or it is better to carry out this transaction under his patronage.

When can't you donate an apartment?

In most cases, a gift agreement can be concluded between the donor and the recipient, after which the rights are transferred to the new owner.

But there are situations when donating real estate is not possible:

The apartment is not registered in the cadastral register . In this case, the registrar will refuse to change the owner. To correct the situation, the apartment will first have to be registered with Rosreestr. Here the registration and registration of the rights of the previous owner are carried out, after which the right passes to the new owner. This operation can be carried out simultaneously with the registration of the deed of gift.
The property has been seized . This means that the apartment is prohibited from alienation. In this situation, the arrest must first be lifted. This is done through the organ that imposed it. As a rule, this is done by bailiffs when there is a debt. You will have to pay the debt in advance.
The property has a mortgage, and the bank is against changing the owner . In this case, you will have to first pay off the remaining debt and submit documents to remove the encumbrance. Then you can submit the gift deed for registration.
The donor is an incapacitated person . Even if permission is received from the guardianship authority and the guardian is proper, the transaction is considered void. Such an apartment can only be exchanged or sold. You can't give it away.
The owner is a minor under 14 years of age . In this case, only compensated transactions are possible, which require permission from the guardianship authorities.

You should know! The donation of an apartment can be canceled if the donor proves that his living conditions have worsened or he was forced into the transaction and was misled. Also, the basis for canceling a donation is an attempt on the life and health of the donor.

Thus, even if the apartment is encumbered, it can be transferred under a gift agreement to the new owner. But there are situations when such a transaction is impossible.

The video story will tell you about the type of encumbrance and the intricacies of removal

Encumbrance in the form of registration of unauthorized persons in an apartment donated

The registration of unauthorized persons on its premises may act as an encumbrance on residential real estate. If you look at this situation through the prism of the law, then there are no problems, because only the owner of the apartment has proprietary rights to real estate, and after drawing up a gift agreement, these rights will pass to the donee.

But you should still prepare for the fact that people registered in the apartment may begin to put a spoke in the wheels. It is for this reason that before you begin to draw up a gift deed with this type of encumbrance, you should familiarize yourself with all the nuances of the transaction. This will take time, but it will make life much easier during its conclusion.

Legislative side of the issue

According to Art. 572 of the Civil Code of the Russian Federation, the owner has the opportunity to dispose of property despite the claims of third parties or organizations. But this does not mean that these claims will end with a change of owner.

The following mandatory conditions must be met to conclude a transaction:

The apartment must be owned.
The participants in the transaction must be sane.
The recipient must agree to receive the apartment.
The gift agreement must be drawn up correctly.

If you are offered to transfer an apartment by deed of gift, you must agree on all the conditions in advance. In difficult cases, the contract should be certified by a notary.

Encumbrance in the form of trust management

Another type of encumbrance is trust management of residential real estate.
The peculiarities of such a transaction are that the donor transfers his home for full use to the donee for a certain period of time. According to the law, trust management is issued for a period of five years with mandatory state registration. All debt on residential real estate passes from the owner of the apartment to its temporary owner. Expert commentary

Kireev Maxim

Lawyer

If an agreement with this type of encumbrance was drawn up and certified by a notary office, this gives the right to the owner of the property to issue a deed of gift. The owner of the rights to residential real estate can transfer the rights of ownership to another person, but at the same time he should notify the person in whose name the trust management of the housing is registered.

Concept and parties to the gift agreement

The gift agreement is a bilateral civil transaction . Through its conclusion, the authorized party (one of two): transfers free of charge or undertakes to transfer to the other party a thing or property right; releases or undertakes to release the other party from the fulfillment of property obligations in relation to itself or third-party creditors.

For your information

A gift is made between the donor and the donee, which can be either individuals or legal entities.

Multiplicity is possible with respect to each of the contracting parties . For example, residential real estate can be gifted to a married couple and become joint property.

To conclude the transaction in question, the donor and donee must be endowed with the appropriate level of civil capacity.

The ability of legal entities to participate in legal relations of donation is determined by the organizational and legal form and constituent documents; individuals - age, mental development and mental health. The restriction of donation in connection with the last two factors is carried out through the court in the manner prescribed by Chapter. 31 Code of Civil Procedure of the Russian Federation.

According to the rules of Ch. 32 of the Civil Code of the Russian Federation, young children and persons declared legally incompetent cannot Persons with limited legal capacity and minors have the right to make expensive gifts (in the understanding of Article 575 of the Civil Code of the Russian Federation, these are things and property rights worth more than 3 thousand rubles ) with the permission of parents, guardians/trustees, and guardianship authorities.

In order to guarantee the interests of creditors and the state represented by the tax authorities, Art. 575 of the Civil Code of the Russian Federation prohibits donations between business entities. However, the law does not prohibit them from making donations to public needs or giving gifts to employees.

The Civil Code has established a list of cases when donation is prohibited or limited (Article 575 and Article 576 of the Civil Code of the Russian Federation, respectively). For example, it is impossible to transfer property free of charge in favor of civil servants in connection with the performance of their official functions.

Important

The gift agreement is bilateral. To conclude it, the mutual expression of will of the donor and the donee is required.

Additional conditions and encumbrances can significantly reduce the value of the gift in the eyes of the recipient. Article 573 of the Civil Code of the Russian Federation gave the latter the right to refuse to conclude a gift agreement.

Encumbrance in the form of a lease

Now many people rent out their apartments in order to generate income from vacant residential real estate. However, this fact can become a serious obstacle when drawing up a gift deed. If the owner of the property decides to issue a deed of gift, it will be encumbered by the rental agreement. But at the same time, you should not be afraid of this problem, since the ownership rights to rental real estate remain with the donor, but are not in any way with the tenants. The only disadvantage of such a deal is that the donee will not be able to move into the apartment until the lease expires.

Additional information, including the sample lease encumbrance agreement itself, can be obtained by seeking advice from a lawyer or notary.

Who is eligible?

Whoever directs his claims towards real estate, this is not an obstacle for the owner in terms of transferring rights.

Be that as it may, the owner still remains the owner, which means that he has the right to dispose of the property at his own discretion (Article 572 of the Civil Code of the Russian Federation). However, this does not mean that these claims will cease.

The mandatory conditions for the transaction are as follows:

property owned;
sanity of participants;
consent of the potential recipient when fully informed of all details;
correct drafting of the document.

If you are to receive such a gift, it is better to discuss all the conditions in advance in the presence of an experienced lawyer.

You can learn about the procedure for donating living space, in particular how to correctly write a deed of gift and whether you need to obtain the consent of your spouse, from our articles. A sample power of attorney for the transfer of real estate as a gift can also be downloaded on our website.

Registration of a gift agreement for an apartment with an encumbrance: Features of the procedure

When executing transactions with residential real estate with the imposition of an encumbrance, especially if a person does not have the appropriate legal knowledge, he is unfamiliar with the current legislation, and he has never encountered issues related to real estate, in order to avoid any problems with the deed of gift, he needs to apply for help from specialists. In this way, you will be able to protect yourself not only from errors when drawing up a deed of gift with an encumbrance, but also from problems that may arise when using it in the future.

Package of documents and procedure for their execution

To sign a deed of gift with an encumbrance, the following documents are required:

Passports or other identification documents of both parties.
If the gift is given to a minor, then a birth certificate.
Real estate documents. Most often, this is a state registration certificate and its copy.
An extract from the house register or a certificate of registered (registered) persons.
Extract from the USRN about the main characteristics.
Certificate of absence of debts to the tax authorities.
If the donor and/or recipient are married, then the consent of the other half to transfer/receive the gift.

As for the structure of the document, it is quite standard; point by point, the sample looks like this:

Name of the document, place of signing the contract.
Indication of the rights and obligations of the parties.
Contact information, including residential addresses.
Data about the subject of the deed of gift, that is, a description of the apartment.
Data on deadlines for completion, this item is entered as necessary.
Responsibility of the parties.
The moment of transfer of ownership.
Conditions for termination.
Procedure for resolving disputes and force majeure situations, other conditions.
Signatures of the parties.
It is optimal to draw up such an agreement with the help of a notary; in this case, you will be able to avoid troubles with the agreement being declared invalid.

What is not consideration?

The gratuitous nature of the gift agreement excludes reciprocal provision on the part of the recipient. And yet the donor is allowed to make certain demands on him .

The Civil Code of the Russian Federation has not established what exactly should be considered a consideration. In the event of a dispute, the issue of hidden compensation in each case is resolved by the court based on an analysis of the case materials.

For your information

Judicial practice has taken the path of recognizing as reciprocal provision actions that clearly benefit the donor. If the donor does not get rid of all rights to the property (for example, reserves the right to partially use it), we cannot talk about a counter-grant.

The concept of “counter” implies that the benefit must be received personally by the donor. If a gift agreement stipulates conditions in favor of third parties (for example, establishing an easement for passage through a land plot in favor of neighbors or performing socially useful actions), the donor’s motives cannot be considered mercantile, and the principle of gratuitousness cannot be considered violated.

A symbolic payment for the gift provided, which is made in accordance with national traditions, cannot a counter-provision If the recipient “paid for” a donated house/apartment with a talisman or a ritual loaf, this cannot be payment.