Donation agreement for a share of a residential building and land plot

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The process of donating a share of real estate is regulated by the Civil, Housing and Land Code of the Russian Federation. And it is their provisions that the parties should be guided by when drawing up and executing the deed of gift. This will help you competently carry out the donation procedure, correctly assess its consequences and promptly prevent irreparable mistakes.

The concept of shared ownership

According to Art. 244 of the Civil Code (Civil Code of the Russian Federation), property owned by two or more persons is common. It may be joint or shared ownership of the co-owners, depending on the basis and characteristics of the acquisition.

Shared ownership differs from joint ownership in that the documents for it indicate a specific ratio of shares within which the rights of the co-owners exist. Whereas joint property initially belongs to its right holders on general terms - they are responsible for and dispose of it jointly.

Example:

1. The owner of the house bequeathed/sold/donated property to three persons, indicating the specific amount of shares assigned to each of them. Such ownership will be shared.
2. Material goods acquired by spouses during marriage are their joint property.
3. The parties to the social rental agreement (registered residents of a non-privatized property) privatize housing. Once the request is approved, they will become co-owners of the property in co-ownership.

Previously existing joint property can be divided into parts by the owners, and as a result become shared property. The division is carried out by concluding and state registration of the relevant agreement or, in the absence of one, through the court.

Most often, joint property is divided between co-owners in equal shares. But the ratio can be changed by their will or by force if the judge finds that the contributions of the participants in the common property to its development (inseparable improvements) were uneven.

Drawing up a gift agreement

For an agreement to be valid, it must be drafted correctly.

The deed of gift form contains the following mandatory details:

• personal data of the parties to the transaction;
• information about the absence of encumbrances or being under arrest;
• list of buildings and their brief technical characteristics.

You can download a standard sample gift agreement for free. During the paperwork process, you will need papers for the land plot. The list must include an extract. The cadastral number is included in the contract. If home ownership is transferred, you will additionally need a certificate of the intended purpose of the site. It can be obtained by contacting the municipality.

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Article 576 of the Civil Code of the Russian Federation provides for the possibility of a proxy participating in the process of drawing up an agreement. If the land plot is transferred under certain conditions, their legal justification will be required. Thus, the law allows you to transfer part of the premises to one person, but at the same time retain the possibility of using the real estate for other citizens. Often, in addition to the gift, a life annuity agreement is drawn up. It is recommended that such agreements be concluded by a notary. According to statistics, most often people go to court due to the emergence of controversial issues in such situations.

Conditions for donating a share of a house and land

A number of restrictions apply to making a gift. Namely, the act of gratuitous transfer is invalid if:

• Carried out in exchange for any service, financial investment or counter-gift from the donee.
• The recipient of the gift is an employee of an educational, medical, social and other similar institution, and the donor is a citizen using the services of such an organization, his spouse or relative.
• Done in favor of a civil servant, official, employee of the Bank of Russia in connection with the performance of their official duties.
• The donor is a minor, incapacitated citizen or his representative.
• Illegal actions were established against the donor in order to force him to alienate property without compensation.
• The contract provides for a promise to make a gift in the future, after the death of the donor.

Mandatory conditions for concluding a deed of gift (including in relation to future transfer of real estate) are:

1. State registration of the agreement.
2. Legal capacity of the parties (if the donee is deprived of it, a legal representative - a parent or guardian - can act on his behalf).
3. Availability of documents confirming the donor’s ownership of the house and land or a share of real estate.
4. A clear indication in the contract of the object of the gift (size of share and name of the object).
5. Conducting a preliminary assessment of the share of the plot from independent appraisers or requesting data on the value of real estate from Rosreestr (required to pay the state duty).

And an equally important condition is compliance with the rules and regulations of the procedure for drawing up a deed of gift, more about which below.

Can I challenge it and how?

It seems possible to challenge such a transaction if the donee has committed any actions against the donor or his family that could have a negative impact on the life and health of the donor and his family.

In order to return such a transaction to normal, the donor must apply to the court , providing a certified gift agreement from a notary.

During the trial, the court will decide whether to cancel the transaction or leave it complete.

Gift or promise of gift

Civil law allows two forms of donation - actual and promise to donate the specified object in the future.

The legal consequences of the first occur immediately after registration. While the validity of the second occurs on the date specified by the donor. But this does not mean that the legal significance of the promise is inferior to the actual donation.

A promise can be canceled in the same way as a gift only in the cases established for this, and the obligations of the donor pass to his successors in the event of death (Article 581 of the Civil Code of the Russian Federation), unless otherwise specified by the contract (the latter does not invalidate the promise of a gift in the event of death) .

Legislation

Transactions that occur with real estate in civil circulation are regulated by civil law.

Such legislative regulation is necessary in order to respect all the rights of each party to the transaction. Giving is no exception.

The very concept of a gift transaction is contained in the Civil Code of the Russian Federation in Article 572 and enshrines the basic rights and obligations of the parties, regardless of what is the object of the gift.

In fact, no matter what property one party alienates and the other accepts, their rights and obligations remain unchanged. Therefore, if you want to approach the issue from a theoretical point of view, we recommend that you first familiarize yourself with the legislation, namely Chapter 32 of the Civil Code.

In addition, in studying the issue of donating real estate in the form of a house and land, you will have to deal with another norm of Civil Law.

Article 273 states that by alienating a house in relation to the donee, you automatically transfer to him the land plot, which is located directly under the building. Keep this in mind when drawing up a gift agreement for a relative.

Have a garden plot you want to donate? Find out the nuances of the procedure!

How to draw up a deed of gift for a share in a house and a plot of land

The drawn up agreement must be formalized by a notary and the state registration and cadastral registration authorities of real estate.

Read more: How to draw up a deed of gift for a share in a house

Order and procedure

In order for the gift agreement to enter into legal force, the parties must:

1. Draw up a deed of gift.
2. Collect the necessary documents.
3. Pay the state fee.
4. Visit any active notary.
5. Conclude a deed of gift in his presence.
6. Submit the document to a notary for certification.

* - necessary specifically in the case of registration of a deed of gift for a share of residential premises, in accordance with Art. 42 of Federal Law No. 218-FZ.

The certification procedure is as follows:

• The notary first checks the legal capacity, adequacy of the parties and their correct understanding of the essence of what is happening.
• After verifying the seriousness of the intentions of the donor and the donee, it is clarified that they have the authority to complete the transaction.
• An on-site examination of the accepted documents is carried out (if significant doubts arise, the notary submits requests to the relevant government agencies).
• An authorized specialist monitors the process of concluding a contract and determines the presence of the personal will of the parties in this case.
• An authentication signature is made on the document and the notary's personal seal is affixed.

A record of the performance of a notarial act is entered into the Unified Notary Information System. Thanks to this, the parties can contact the office at any time to obtain a duplicate of the deed of gift in the event of its loss or damage.

What documents are needed to donate a share of a house and land?

List of documents required when drawing up a gift agreement:

1. Passports or other documents allowing the identification of applicants.
2. Acts of title for the object of donation (sale and purchase agreement, gift, division of property, certificate of inheritance).
3. Documents indicating a close relationship between the donor and the recipient (in this case, benefits are provided when paying the state duty).
4. A certificate of the value of the share of the house and land or a report on an individual appraisal examination.
5. Technical passport, boundary plan to clarify the characteristics of the object.
6. Receipt for payment of state duty.

Depending on the situation, the notary may require an additional package of papers.

Price

For certification of a deed of gift by a notary, a state fee and a fee for legal and technical services are charged.

The amount of the state duty is established by paragraphs. 15 clause 1 art. 333.24 and amounts to:

• 100 rub. - for parents, children, spouse, grandparents, brothers and sisters of the donor;
• 500 rub. - in case of registration of a deed of gift in favor of other individuals.

Fees for legal and technical services are regulated by the notary chamber of the subject, and prices are subject to annual revision.

For example, in 2021, Moscow notaries charge from 5,000 rubles for this.

Registration deadlines and legal consequences

The deed of gift comes into force from the moment it is signed by the parties and certified by a notary. But even after this, the donee does not yet become the full owner of the share of the house and land. To do this, it is necessary to carry out the final stage - registration of the transfer of rights.

Rules for performing the procedure

If a donation is made, the agreement must be drawn up in two copies. The document is drawn up for each participant in the procedure. The paper can be drawn up in any form or filled out on a standard form. Persons acting as donor and recipient are required to sign the agreement. Their presence confirms the fact of familiarization with the document.

Consent to the transaction on the part of the person receiving the property confirms an understanding of the rights and obligations that have arisen. The agreement does not require notarization. However, experts recommend carrying out the procedure. This will protect the participants in the transaction.

Mandatory conditions must be included in the gift agreement. Additionally, you can specify the responsibilities of the parties. However, they must not contradict the norms of current legislation.

It is recommended to use the right in a situation where there is a risk of problems with other relatives who can challenge the actions of the donor. The notary will confirm the fact of his legal capacity, warn against a rash act and explain the essence of the actions. If a person has doubts about the legality of a transaction, he has the right to request a medical certificate. Documents must be provided as of the date of execution of the contract. Experts advise contacting a notary in the area where the object of donation is located.

Video

If a land plot and a house are owned by several owners, a person has the right to dispose of only his share. It will first need to be isolated if the procedure has not been carried out previously. Property acquired during marriage can also be transferred by drawing up a deed of gift. However, in addition to the standard list of documents, the other half will have to provide permission. The paper must be notarized. You can allocate a share that is half of the property, and then dispose of it yourself.

Cancellation of deed of gift

In accordance with Art. 578 of the Civil Code of the Russian Federation, the contents of the deed of gift may be canceled in the following cases:

1. The donee committed unlawful acts against the donor, his relatives and loved ones - he attempted to kill them, killed them, or caused serious bodily harm.
2. The item of the gift, which is of great non-property value to the donor, is under threat of destruction due to the fault of the new owner.
3. The donor has outlived the donee (this situation must be separately stated in the contract).

On the same grounds, the donor may refuse to fulfill the promise to donate a share of real estate, and also if, as a result of the donation, his financial situation worsens to a critical minimum.

How to register a donated share of a house and land as a property

The transfer of ownership as a result of a gift of real estate is subject to mandatory state registration. To do this, the parties to the agreement must contact the local branch of Rosreestr or the MFC with an application and two copies of the deed of gift.

To register the transfer of ownership of a share of a house and land plot, you will have to pay a state fee:

• for a share of land - 100 rubles. ;
• for residential premises - 2000 rubles.

The parties should also provide:

1. Donor's title documents.
2. Your passports.
3. Powers of attorney (if necessary).

The state registration authority, in turn, undertakes to record the transfer of ownership of a share of housing and land within 10 days after accepting the necessary documents and paying the state fee.

If you apply through the MFC, the period increases to 12 working days.

Cost and terms

Re-registration of the right takes place within 7 working days. If the application is submitted to the MFC, the time increases by 2 working days. The reporting of these deadlines begins on the next working day after the receipt of all documents and the deed of gift.

Possible costs include:

• state duty for registering land and houses for the new owner;
• notarial services;
• remuneration for drawing up a deed of gift;
• hereinafter – income tax.

The state fee is paid by the new owner of the property separately for registration of the plot and house, in 2 receipts.

For the first, it is equal to 350 rubles, if the land is intended (clause 24, clause 1, article 333.33 of the Tax Code of the Russian Federation):

1. for personal farming;
2. gardening;
3. gardening;
4. individual housing or garage construction.

The same amount is the state duty on a house if there were no previously registered rights to it.

This is possible if it was built before 1998 and, accordingly, there are no records about it in Rosreestr. In all other cases, the amount increases to 2000 rubles. (Letter of the Ministry of Finance No. 03-05-06-03/16576 dated March 14, 2019).

Note ! The fee is paid at the bank or at the MFC. Be sure to get the details from the department or office where the application is being submitted. The original of the canceled receipt is not needed: Rosreestr will check the receipt of funds through its channels.

If, by decision of the parties or required by law, the contract is certified by a notary, he is paid a fee at the following rate:

The basis is the estimated or cadastral value of the land and house at the choice of the parties, usually the least.

Important! The notary himself can send the agreement to Rosreestr. This way, re-registration takes place much faster, in 3-4 business days. This service is free, but you will still have to pay a fee.

Additional costs may be incurred by the new owner . If he and the donor are relatives, income expressed in kind is not subject to personal income tax.

This circle includes spouses, parents (also adopted), children (also adopted), grandparents, grandchildren, brothers and sisters (also step-sisters). In another case, he is obliged to submit a 3-NDFL declaration by April 30 of the following year and pay tax.

Tax

A tax in the amount of 13% of its assessed value is charged on donated property to the donee. The new owner must pay it by July 15 of the year following the acquisition of ownership, and submit a declaration by April 30.

Failure to comply with the deadlines in this case threatens the recipient with a fine of 5 to 30% of the unpaid amount, depending on the length of the delay.

But there is good news for donees from among the donor’s relatives - they are exempt from paying tax on the basis of Art. 217 of the Tax Code of the Russian Federation (applies to the spouse, parents, children, brothers, sisters, grandparents and grandchildren of the donor).

How to correctly draw up a donation agreement for a share of a house and land? The answer depends on many factors and nuances, which our lawyers will help you uncover more fully. They will explain in detail the features of donation specifically in your case and warn about the difficulties that threaten in the event of erroneous actions on the part of both the donor and the recipient of the gift.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Conditions for the transaction

In order for the transaction to take place, a number of necessary conditions must be met :

1. The first condition refers to the fact that both parties must agree to the transaction.
   This means that the donor must be willing to give his property as a gift, and the recipient must be willing to accept it. Very often, donors try to conclude a deal without the consent of the recipient. In this case, registration of the donation is simply impossible.
2. The second important basis is the legality of the transaction. So, in order for the donation to take place, it is necessary that other owners of real estate agree to such an action.
3. If you are married and purchased a home when you were already saddled with a family, this means that even though you are the owner, you must enlist the support of your other half.
   The spouse must give the go-ahead for the transaction in writing. Without such consent, the transaction is impossible.
4. If you are discussing only the share of the house and land, you should also enlist the support of other share owners.
5. The fifth condition refers to the fact that close relatives are exempt from paying tax to the state in the amount of 13%.
6. You have the right to alienate only that property that is a full participant in civil circulation. There are other nuances and rules for the transaction, but you will become familiar with them during the process of registering the gift.