How to correctly draw up a deed of gift for a land plot?

Category updated: December 18, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. In this section, I will talk about such a transaction as the donation of a land plot, how it is formalized, what the conditions, features and taxes are. Here I am talking about a transaction with a “bare” plot without buildings or with buildings, but which are not registered as property. If you need to find out about donating a plot along with a house, I have a separate article on this topic.

The donor is the one who donates the land. The donee is the one who accepts the gift (Clause 1, Article 572 of the Civil Code of the Russian Federation).

Features of a deed of gift for a land plot

According to Art. 572 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is a document confirming the intentions of one party (the donor) to transfer a gift free of charge to the other (the donee).

In this case, we are talking about a plot of land, when donating which you need to take into account several rules:

1. The donor does not have the right to make counterclaims to the donee: to transfer money, things, etc. Such transactions are recognized as invalid, and the rules of purchase and sale or exchange are applied to them.
2. You can give an object that belongs to the donor as a property.
3. The recipient has the right to refuse the gift, and the DD will be considered terminated. Moreover, if the refusal causes damage to the donor, the donee undertakes to fully compensate it (Article 573 of the Civil Code of the Russian Federation). For a deed of gift drawn up in writing, the refusal is written in a similar form.
4. You can refuse a gift after state registration of the gift agreement, but the refusal of the donee is also subject to state registration.
5. Real estate is given only under a written agreement, because it must subsequently be registered with Rosreestr (Article 574 of the Civil Code of the Russian Federation). Land plots are classified as real estate (Article 130 of the Civil Code of the Russian Federation).

Briefly: a deed of gift for land is drawn up in writing and is subject to state registration in Rosreestr. If desired, the recipient has the right to refuse the transaction. The property located on it is donated along with the plot.

What is given along with the plot?

Alienation of different real estate objects separately is unacceptable, because this will make it impossible to use the gift.

For example, you cannot donate only the land on which the house is located: the recipient will not be able to use the site for its intended purpose.

When deciding to donate a plot of land, it is important to consider that the objects located on it are also donated along with it:

• residential and country houses;
• outbuildings;
• baths, cellars.

Note! If the objects are not legalized, it is better to do this before signing the DD, or to warn the donee about this, because after the transaction, he will have to register illegal real estate.

Obtaining a certificate of ownership

Within the established time frame, the donee can go to obtain a certificate in his name.
You need to have your passport and a statement confirming the acceptance of documents received at the previous stage. Currently, the document preparation period is no more than 10 days. After receiving a certificate of ownership of the plot, the donee becomes the new full owner of the land plot. It is important to understand that this entails not only the right to freely dispose of the received land, but the obligation to pay land tax.

To whom can a plot of land be donated?

A plot of land is the property of a citizen, and he has the right to dispose of it at his own discretion.

An exception is the acquisition of an object during marriage: in this case, it is recognized as the common property of the spouses, and for alienation on the initiative of one of them, the notarized consent of the other will be required (Article 35 of the RF IC).

You can donate a plot of land to anyone:

• to kid;
• close or distant relative;
• spouse;
• to a stranger.

Let us consider the features of the transaction in each case in detail.

For a minor child

You have the right to give your child a plot in full or a share, having received consent to the transaction from your spouse, if the “gift” was purchased during marriage.

By law, any transactions with minor children require the permission of their parents, but you yourself will act as a legal representative, and written consent is reflected in the deed of gift.

A child under 14 years of age does not sign the DD; those over 14 years old sign and come to the MFC to register the transaction together with the donor parent.

Children by shares

You can donate a plot of land to minors or adult children, dividing it into shares:

for example, ½ each. The size of the shares is determined by the donor independently, because this is a voluntary transaction.

Sample agreement for donation of a share of land:

Wife from husband and vice versa

Spouses have the right to give each other real estate, and in this case, notarial consent to the transaction will not be required.

Legal advice: real estate received by a spouse as a result of a gift or inheritance is not subject to division during a divorce. Think carefully before entering into a contract. If you decide to divide the property, the donated land with all the objects will not appear in the division.

Parents

You have the right to give your parents or one of them land with buildings. If mother and father are the donees, shares are indicated for each by DD.

Important! We must not forget about the rule for spouses: if the plot was purchased during marriage, consent from the donor’s spouse will be required.

Sample agreement for donation of land between close relatives:

To third parties

Third parties mean different people: aunts, uncles, girlfriends, friends, comrades. You can give land to any person, the main thing is that the transaction is voluntary.

It is important to consider that if the donee is declared incompetent, the donation is carried out with the participation of a legal representative. He himself does not have the right to sign - all transactions are carried out for him by a guardian with the consent of the guardianship authorities.

Briefly: donation is allowed to any person; it is a voluntary transaction. Alienation of property in favor of a child is carried out with the consent of the parents.

How to properly draw up a preliminary gift agreement and why is it needed?

How to properly draw up a real estate donation agreement and what is needed for this?

Is notarization required?

Despite the mandatory written form, the signature and seal of a notary will only be required if a share in the property right is alienated.

Cost of notary services when donating a house

If the DD is subject to mandatory notarization, a state fee is paid in accordance with Art. 333.24 Tax Code of the Russian Federation. It is calculated from the cadastral value of the house and land and is 0.5% (not less than 300 and not more than 20,000 rubles).

Calculation example:

A house and a plot of land with a total value of 5 million rubles are donated. The notary fee will be:

5,000,000 x 0.5% = 25,000 rub.

Due to the restrictions established by the Tax Code of the Russian Federation, the maximum amount applied to payment is 20,000 rubles.

If notarization is not necessary, the parties can turn to a notary for their own protection: a deed of gift with his signature is more difficult to challenge.

In this case, the notary fee is paid in accordance with Art. 22.1 “Fundamentals of legislation on notaries” - it depends on the value of the object and the family ties of the donor and the donee:

1. Alienation in favor of a relative: child, spouse, mother, father, brother, sister with a real estate value of up to 10 million rubles. 0.2% +3,000. If housing costs from 10 million - 0.1% of the amount over 10,000, plus 23,000.
2. Donation to other persons with a value of up to 1 million – 3,000 + 0.4%; from 1 to 10 million – 0.2% + 7,000; from 10 million – 0.1% + 25,000.

The maximum tariff cannot exceed RUB 100,000. If the payment is calculated to be 200,000, the maximum allowable amount is actually transferred.

Requirements for donors

Unlike recipients, who are subject to minimum requirements, the list of criteria for donors is stricter:

1. Age of majority. Transactions on behalf of children under 18 years of age are prohibited by law.
2. Legal capacity.
3. Ownership of real estate. You cannot give land that belongs to another person - this will require his consent and a notarized power of attorney.

If you meet the criteria, there should be no problems with the transaction. But it is important to take into account situations when registration of a DD is impossible.

When is donation prohibited?

According to Art. 575 of the Civil Code of the Russian Federation, donation is prohibited in several cases:

1. On behalf of a child under 18 years of age.
2. You cannot donate property to an employee of a medical, educational or social organization in which the donor receives services or is supported.
3. It is prohibited to transfer property as a gift to employees of state and municipal bodies if the transaction is related to the performance of their official duties.
4. Donations between organizations engaged in commercial activities are not permitted.

This prohibition does not apply to gifts worth up to 3,000 rubles. You can donate property in connection with protocol official events, but in this case it is recognized as federal or municipal property, and is transferred to the recipient to the government agency according to the relevant act.

You can donate real estate on behalf of an enterprise, but only to an individual. For example, such deals are relevant when employers want to reward employees for decent work and great contribution to development.

Expert advice on donating land

In practice, deeds of gift are drawn up quite often. However, often the property is in shared ownership. A citizen has the right to donate only his share. All other owners of the property must agree with the implementation of the action. Written permission will need to be attached to the list of documentation. All property owners must write it.

Co-owners of the land have a priority right to purchase their share. Before registering a deed of gift, you will need to notify other property owners about the planned action, and then wait 30 days.

A period is provided for them to issue a refusal to purchase property in gardening. If a response is not received within the prescribed period, it is considered that the other owners have refused to purchase the land. Notification of the transfer of property as a gift must be in writing and then handed over personally to the other owners of the site or sent by registered mail with a description of the contents. If a person independently transfers documents, it is worth asking for a mark indicating that citizens have read the paper and studied its contents. If a person is the sole owner of a plot, he has the right to donate the property in full or transfer only a share in it. Documents must be completed correctly. To know how to draw up papers correctly and what form of document to use, it is recommended to study the provisions of the Civil Code of the Russian Federation. If only part of the property is transferred, the gift agreement is drawn up in accordance with the classical rules. However, the parties will have to additionally indicate the size of the transferred share, its area and location of the site.

Is it necessary to carry out surveying before donation?

Land surveying is not necessary, but it may be necessary in controversial situations: if the actual area differs from the area according to documents, the absence of previously defined boundaries, the allocation of an allotment from collective property, an increase in area.
If land surveying was previously carried out during registration, it is not necessary to do it when donating, even if a share is being donated.

Note! If the land is in common ownership of several citizens, and one decides to donate his part to another person, first you need to allocate a share and register the changes in Rosreestr.

Lawyer's answers to frequently asked questions

Is it possible to draw up a deed of gift for a house using a power of attorney?

It is possible, but the deed of gift must be certified by a notary.

What happens to the donated house after the donor dies?

If a real DD is drawn up and the donee is listed as the new owner, the house is not included in the inheritance estate. If a promise of gift agreement is drawn up and the donor dies, his obligations pass to his heirs (Article 581 of the Civil Code of the Russian Federation).

Is it possible to donate a house that is pledged to a bank?

If a house is purchased with a mortgage or pledged to a bank when applying for another loan, transactions with it are carried out only with the consent of the lender.

Is consent required for the donation of a house from the people registered in it?

No, consent is not required. The owner has the right to dispose of the property at his own discretion, but before signing the DD, everyone must be signed out.

Is it necessary to draw up a transfer and acceptance certificate when donating a residential building?

It is not necessary, but the parties can arrange it if they wish. It confirms the actual transfer of the gift, and it can reflect possible shortcomings.

Do I need to have the deed of gift certified by a notary?

The deed of gift is certified if a share in the right of common ownership is given. In other cases, notarization is not necessary.

Consent to the transaction from the remaining owners is not required - the donor has the right to dispose of the property at his own discretion, with the exception of purchase and sale transactions where other owners have a preemptive right to purchase a share.

Legal advice: you should contact a notary. He will check the correctness of the documents and certify the contract. In the future, it will be problematic to challenge it, because The notary’s signature indicates that the parties at the time of signing were legally capable, were in a sober state and were aware of the legal consequences of the transaction.

Cost of notary services

For certification of deeds of gift, notaries charge 0.5% of the transaction price - the cadastral value of a plot of land. You can find it out on the official website of Rosreestr.

If notarized consent of the spouse is required, the notary is paid 500 rubles.

What to do after completing the deed of gift?

Having signed the DD, the parties need to contact Rosreestr to register the new owner of the share - the donee. This service can be ordered from a notary and is provided free of charge.

An alternative option is to contact the MFC at the location of the site.

State duty

The size of the state duty varies from 100 to 2,000 rubles. depending on the category of land.

If ownership of a personal or garden plot, individual housing construction, is registered, 350 rubles are charged.

Documentation

The registrar will need the same documents as the notary.

Additionally, one copy of the deed of gift is provided, on the basis of which the donee will be registered as the new owner of the share.

How to issue a deed of gift: step-by-step instructions

The procedure for registering a deed of gift consists of several stages. Let's look at everything in detail.

Step 1: drawing up a contract

You can draw up a deed of gift yourself or by contacting a lawyer. This will cost approximately 2,000-3,000 rubles. Notaries also provide technical services for drafting documents, but their prices are more serious - from 5,000 rubles.

Sample contract

The deed of gift must contain information about:

• Full name, passport data, dates of birth of the parties;
• address, area, cadastral number of the plot, land category: individual housing construction, private subsidiary plots, etc.;
• the grounds on which the land belongs to the donor: sales contract, inheritance, donation, etc. Document details will be needed;
• the date from which the contract is considered valid;
• rights, obligations, responsibilities of the parties, conditions for canceling the transaction.

The date of registration, signatures of the donee and the donor must be included.

Sample land donation agreement (completed):

Step 2: visit a notary

A visit to the notary is required if a share is being given. In other situations, visiting a notary is voluntary.

An exception is the preparation of a DD for a plot purchased during marriage: it is necessary to obtain the consent of the spouse, even if the agreement is not subject to notarization.

Note! If you come to a notary, he will hand over the documents for registration to Rosreestr, and then you will not have to submit them yourself. The service is provided free of charge.

Spousal Consent Sample

Consent includes several points:

• FULL NAME. the donor and his spouse;
• date of land acquisition, address and area;
• the very wording of consent;
• signature of the citizen and date of registration.

Sample of a spouse's consent to donate a plot of land:

Documentation

The notary needs to submit a number of documents:

Step 3: registration of the agreement with the MFC

When the documents are collected and the DD is signed, you need to submit everything to the MFC at the location of the land plot. The donor and the recipient come to the institution. If one of them cannot appear, a notarized power of attorney is issued. The donee has no right to represent the interests of the donor.

At the time of submitting the documents, an application for registration of the DD and re-registration of ownership is filled out; it will be given to you by an MFC employee.

Documents and state duty

The MFC or Rosreestr provides the same as a notary, but in addition you will need a deed of gift. A receipt for payment of the state duty is not required - all payments are checked by employees of the institutions themselves.

But it may be needed if the specialist does not see the payment in the general database. It's better to take it with you.

The state duty can be paid online by generating a receipt on the Rosreestr website. There are also details for payment through terminals and bank branches. The fee for registering the right to a plot of land is 350 rubles. It is paid by the donee.

Step 4: obtaining an extract from the Unified State Register of Real Estate

Re-registration of land ownership takes 10 working days. After the specified period, you need to come to the MFC and pick up an extract from the Unified State Register, where you will be indicated as the new owner.

Which plot can be donated?

The type of plot does not matter - individual housing construction, private household plots, garden, country house, vegetable garden, etc. The main thing is that it is registered with Rosreestr and registered in the cadastral register (has a cadastral number). This condition is written in clauses 4 and 7 of Art. 1 and Art. 8 of the Federal Law of July 13, 2015 N 218-FZ.

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.

Gift taxes

Receipt of property is recognized as profit and is subject to taxation. You need to pay 13% personal income tax on the cost of the land.

Close relatives of the donor do not pay the tax:

• parents;
• children;
• Grandmothers and grandfathers;
• full and half brothers and sisters;
• spouses.

The rest will have to pay. The amount is calculated based on the cost specified in the contract. The 3-NDFL declaration is submitted to the Federal Tax Service at the location of the land until April 30, the tax itself is paid until July 15.

When and why is a contract needed?

Donating a plot of land to a relative or any other person is a fairly common phenomenon in legal practice, which occurs much more often than, for example, donating an apartment.

Since the site will eventually have a new owner, drawing up an agreement is mandatory. It does not need to be certified by a notary, but during state registration of the rights of the new owner, the document is presented along with others.

Any transaction as a result of which the owner of the property changes undergoes mandatory state registration. In case of donation of a land plot, you will need a corresponding agreement, a cadastral passport, a certificate of ownership of the donor, passports of both parties and a receipt for payment of the state duty.

If the previous owner acquired this plot during an official marriage, then the standard package of documents must be accompanied by the spouse’s written consent to the owner’s actions. Such a document is drawn up by a notary - mandatory certification is required.

If the plot is officially owned by a citizen under 18 years of age, then the standard package will also require written permission from the guardianship authorities. You need to get it in advance, since such a procedure can take a long time - the authorities need to provide evidence that such actions do not violate the rights of the child and do not worsen the conditions of his prosperous life.

Cancellation of a gift agreement

The transaction can be canceled on the basis of Art. 578 of the Civil Code of the Russian Federation on one of the grounds:

1. At the initiative of the donor: the donee committed an attempt on life and health, caused bodily harm or killed a close relative of the donor; mistreatment of the gift by the recipient, if this entails its irretrievable loss.
2. Drawing up DD under psychological or physical pressure.
3. At the request of the donee: the presence of circumstances entailing significant financial expenses. For example, if the donor did not warn about legal problems with the land, but this became clear to the recipient.
4. At the initiative of the heirs, if the donee killed the donor intentionally.
5. At the request of creditors, if the donor is in the process of bankruptcy, and the land was donated six months before filing an application with the arbitration court.

The donation is canceled by agreement of the parties or in court. If the court satisfies the requirements, the donee undertakes to return the plot within the established time frame, and, if necessary, compensate the donor for damages.

Arbitrage practice

Courts usually satisfy donors' requests to invalidate a DD if they provide sufficient evidence and arguments.

Let's look at some real examples:

Arbitrage practice

Challenging a deed of gift for real estate is problematic: irrefutable evidence is needed that will convince the court that there are grounds to invalidate the transaction and return the donated property to the donor.

In most cases, the demands remain unsatisfied, but there are also examples of solutions where people managed to get the contract canceled:

• Decision No. 2-1209/2017 2-1209/2017~M-1163/2017 M-1163/2017 dated June 20, 2021 in case No. 2-1209/2017;
• Decision No. 2-1168/2017 2-1168/2017~M-818/2017 M-818/2017 dated May 29, 2021 in case No. 2-1168/2017;
• Decision No. 2-3103/2016 dated September 30, 2021 in case No. 2-3103/2016.

If you want to challenge the DD in court, you need to collect maximum evidence confirming the existence of grounds. But this does not guarantee a positive result - each situation is considered by the courts individually.

General basic information to enter into the topic

A deed of gift or a gift agreement - from a legal point of view, is an agreement under which one person transfers on a free basis (that is, without demanding or receiving property, money, rights or services in return) to another person certain property from his property.

The parties to a gift transaction are the donor (the one who transfers the property) and the donee (the one who accepts the property as a gift). The gift agreement is considered one of the safest, most effective and widespread transactions in our country. Why?

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

One of the reasons for this popularity, many lawyers believe, is the peculiarities of taxation when registering a deed of gift, the size of which for most transactions is 13% of the total market value of the gift at the time of conclusion of the agreement.

Moreover, if the giving and receiving parties are related, this tax is not paid!