All rules for disposing of property with several owners/shareholders are regulated in 2021 by the provisions of Article 246 of the Civil Code of the Russian Federation. According to Article 574 of the same document, an agreement for the donation of a share of a land plot must be concluded between the parties in writing (the exact definition can be found in paragraph 3 of Article 574 of Article 574 of the Civil Code of the Russian Federation), and the process of transferring property rights must be registered in Rosreestr.
In this article from the Legal Ambulance website, Oleg Ustinov, the author of the column on deeds of gift in Russia and a practicing lawyer, will talk about how to quickly and correctly donate land so as to avoid financial and property disputes in the future.
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!
Registration of donation of a share of land in 2021
According to the current Russian legislation, in order to formalize the donation of a share of a land plot in 2021, you need the desire of the parties to conclude a deal (fulfill their obligations under it), as well as the availability of documents specified by the legislator.
Based on the essence of the donation, this transaction must represent, first of all, a gratuitous transfer of a share in ownership, without any requirements on the part of the donor (Part 1, Article 572 of the Civil Code of the Russian Federation). Otherwise, the transaction will be considered void.
Today, the legislator allows the parties to formalize a transaction either independently or using the services of a notary, whose participation in 99% of cases allows one to avoid gross errors when drawing up and executing an agreement.
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Since the land plot is classified as real estate, its donation (or its part/share) is subject to mandatory registration in the local branch of the Federal Registration Service or Rosreestr . At the same time, employees of the above bodies will register only the fact of transfer of ownership, and not the agreement as a whole.
The deed of gift itself must be drawn up in writing with a precise description/name of the subject of the transaction (in accordance with paragraph 3 of Article 574 of the Civil Code) and the necessary details (more on this a little later).
Note from site lawyer
In addition, the parties must attach to the gift agreement copies of title documents confirming ownership rights to the donor’s land, as well as cadastral and technical documents and characteristics.
In addition to all of the above, the deed of gift in question must contain all the important information (full name, addresses, passport details, etc.) about the parties giving and receiving the gift, and the subject of the gift itself must be described in as much detail as possible and its description must correspond to reality.
However, perhaps the main factor that must be described in the content of the agreement is the actual size of the donated share, as well as a description (for example, whether there are residential or outbuildings on it) and the address of the property.
An important aspect is the presence/absence of any kind of encumbrances on the gift, which must also be indicated in the contract.
Features of land exchange
A land exchange agreement is, first of all, a transaction. And the exchange itself, in essence, is the same purchase and sale, when each of the parties is both a buyer and a seller, and the payment is real (sometimes movable) property. This was discussed above. And the procedure for changing equivalent and unequal objects differs:
- The plots are of equal value. In one of the clauses of the agreement, provide for a specific participant in the agreement, who will deal with the documentary side of the matter and settle the formalities, and therefore will bear the costs.
- The plots are of unequal value. An independent market assessment of the price of the land to be exchanged must be carried out, and the concluded agreement contains an indication of the cost of the plots and the amount of additional payment by the party to the transaction who is exchanging the property with a lower value, as well as the timing and procedure for their payment. One of the plots was seized or classified as objects whose circulation is limited at the time of the transaction.
- Exchange is not possible. If there is a land dispute in relation to the exchanged object or an easement has been established, or the site is under collateral, possibly under lease, information about this must be conveyed to all participants in the transaction. The consequences can be very unpleasant - the other party is considered deceived and has the right to demand the return of property and even payment of compensation.
How to donate a plot of land to a relative in 2021
I would like to note right away that the agreement for donating a share of a land plot to a relative in 2021 is in all respects similar to the process of concluding a regular deed of gift. However, there are still some peculiarities of such a gift and they relate to taxation.
Thus, according to the current legislation of the Russian Federation, namely 18.1 paragraph 217 of Article of the Tax Code of the Russian Federation, parties to a gift transaction who are close relatives are exempt from the mandatory payment of income tax 3-NDFL.
Based on the information established by paragraph 2 of Article 14 of the Family Code of the Russian Federation, the category of close relatives today includes :
- children;
- parents;
- spouses;
- brothers and sisters (both full and half-siblings);
- Grandmothers and grandfathers.
The agreement can be drawn up in simple written form, and the right to transfer ownership of the donated share of the land plot is registered by the parties in Rosreestr, after which the new owner is issued an appropriate certificate, and he becomes the full owner of the donated land.
How much does a deed of land cost?
Prepare in advance for the fact that you will have to pay for the services of certain specialists or a notary in the process of concluding a gift transaction. The taxation of donated property is dealt with by the Federal Tax Service; the amount of tax, payment period, deferments, benefits are determined on the basis of the norms of the Tax Code of the Russian Federation.
Please note that when donating property to a non-relative, the gifted Russian citizen will cost 13% of the value of the gift, and for a foreigner or legal entity it will cost 30%.
To enter information about changing the boundaries of a land plot after donating a share of land, you must pay a fee for citizens in the amount of 300 rubles, for organizations in the amount of 600 rubles. Obtaining a document on re-registration of property to the new owner will cost the recipient from 300 to 2000 rubles. In this case, the amount cannot be less than 0.5% of the value of the land.
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How to properly donate 1/2 share of a land plot in 2021
According to the legislation of the Russian Federation, the actual area of a land plot can have either one or several owners. If there are several shareholders, it would be logical to assume that each of them has a certain part of the plot, which he can dispose of at his own discretion, including donating a share to a relative or any other person.
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For example, let's consider a situation where a married couple owns one plot of land with a total area of 1,500 square meters. In order for a spouse to donate his half of the land, the plot must be divided into 2 shares, each of which must correspond, in accordance with the requirements of the legislator, to the minimum area of the plot.
It is worth noting that the size of the minimum mentioned above varies in 2021 depending on the region of the country.
Also, the donating party is obliged :
- Be fully capable and aware of the consequences of your actions.
- Have documents for the plot confirming ownership.
- Have written permission to conduct a gift transaction from other shareholders, if any.
Main aspects of the agreement
Like the entire land plot, a certain share of it can be alienated to another person.
This may not necessarily be a relative of the share owner, but any other person. If the owner intends to donate his share, he must, first of all, notify the other shareholders about his plans, because they have the pre-emptive right to acquire it. When drawing up a document on a gift transaction for land that is in shared ownership, the same rules and requirements are used as when donating the entire plot. The only difference between such an agreement is the requirement for a detailed description of the alienated share itself: its share size in relation to the entire plot, area, location and even the shape and buildings on it.
In the case of drawing up a deed of gift for several recipients, it is necessary to identify the share of each of them using a clear description of the characteristics of the shares. The completed gift agreement, according to the rules established by law, is submitted to the Rosreestr authorities for registration of new owners of shared property.
What documents are needed to formalize the donation of a share of land?
To correctly register the transfer of ownership of a share of a land plot under a deed of gift, the donor must prepare the following documents :
- Corresponding application for state registration. The document can be drawn up by hand in simple written form or using a form issued by an employee of Rosreestr.
- Identification documents of the applicant or a notarized power of attorney (copy as well as original).
- Donation agreement for a share of a land plot, executed in three copies (one for each party and one for the employee of the registration authority).
- The act of acceptance and transfer of property (also needs to be executed in triplicate).
- Marriage certificate (only if the land plot is part of jointly acquired property).
- Receipt of successful payment of state duty.
- Documents from BTI.
- Cadastral passport/plan of the property.
- Certificate of ownership of the plot.
What is donation
The concept and features of making a gift are established in the Civil Code of the Russian Federation (Chapter 32). And in accordance with its provisions, we can conclude that this is a gratuitous form of transfer of property into the ownership of another person (or group of persons) .
The act of donating a plot of land is carried out through the conclusion of an agreement, one of the parties to which is the donor (the owner of the property), and the other is the donee (the person in whose favor the property is transferred).
In this case, both parties must act according to their own conviction, since free will when concluding a transaction is a prerequisite for its validity.
By signing a deed of gift, the donor undertakes to transfer the specified object into the possession of the donee completely free of charge, and the donee - to accept it.
In the future, it will be impossible to cancel the contract without valid reasons. However, before receiving the gift, the donee can still refuse it in the same form in which the transaction was concluded.
How to donate a share of a land plot to a minor citizen in 2021
According to Article 28 of the Civil Code of the Russian Federation, his natural parents, guardians and adoptive parents can act as a child’s legal representative. Although donating a share of a land plot to a child in 2021, unlike the previous paragraph, has a number of important features and legal nuances, but in form – such a deed of gift is no different from other gift agreements.
The agreement, as before, must indicate information about the donor and recipient, as well as describe, in as much detail as possible, the subject of the agreement.
3, paragraph 37 of Article of the Civil Code of the Russian Federation, directly indicates that the legal representatives of a minor citizen do not have the right to make any legal transactions with children, unless this concerns the transfer of property to the ward as a gift.
Expert opinion
Oleg Ustinov
Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.
Remember that, although when drawing up a gift agreement a minor citizen will act as a party to this transaction, signing the deed of gift is the responsibility of his legal representative! At the same time, a child who is already 14 years old, but not 18, can independently certify such documents.
In the event that a child does not have a second parent and his only parent acts as one of the parties to the donation of a share of the land plot, this parent cannot act as a legal representative and sign an agreement on behalf of the child , since one person cannot immediately represent the donee and the donor.
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In this situation, the parent of the minor needs to submit an application to the guardianship authorities, who will appoint an employee who will act as the legal representative of the child in the transaction with the parent.
After the deed of gift has been certified, the registration process is similar to the registration process when registering other types of deeds of gift.
Important!
However, although after registering with Rosreestr and receiving a certificate, the child will become the full owner of a share of the plot - he will be able to sell or rent out this share only upon reaching adulthood.
Conclusion: main points of the article
So, as follows from what we discussed above :
- A share of a land plot can be gifted to any person, provided that the donor himself does not require any payment from the recipient (whether in money, rights or services).
- To make a donation, the owner of the property must draw up a gift agreement in writing, indicating in the content of the agreement the details of the parties, as well as the area of the plot, its address and other features. In addition, the donor must attach title documents to the agreement.
- To transfer ownership of a plot from the donor to the donee, the parties or their representatives must visit Rosreestr and provide an employee of the organization with all the documents necessary for registration, paying a state fee of 350 Russian rubles.
- A deed of gift is considered concluded only when a share of the land plot is transferred into the ownership of the donee.
- When making a donation of a part of land, the donor needs to determine the exact boundaries of the transferred area, separating it from the common property.
- The gift tax in 2021 is 13% of the total market value of the gift if the parties are strangers or distant relatives. There is no taxation in transactions between relatives.
- The donor can donate a share of the land plot to a minor citizen. However, it should be taken into account that instead of the child, the gift agreement will be signed by his legal representative if the child is not yet 14 years old.
