To donate the land on which a house is built, or some separate part of the plot - this is the decision that Russians most often make when the need arises to register the land in the name of a relative. In this article, we will talk about what features this format of property transfer has and how such an agreement differs from purchase and sale transactions.
As when planning any transaction, especially if large sums are involved, the main thing is to think carefully about how expedient it is, and how to do everything correctly, so that later you can avoid unwanted legal conflicts and easily take advantage of all the benefits that such a transaction provides.
Advantages of land donations
Drawing up a land donation agreement is much easier than concluding other land transactions; in addition, professionals consider this option one of the safest ways to transfer property rights. And such a transaction takes relatively little time - a maximum of a month from the moment the contract is drawn up until all the documents are received.
The main advantage of giving for the donor is the ability to avoid tax (13% personal income tax) legally, of course, only if we are talking about such agreements between close relatives (spouses). When donating land to an outsider, the tax will have to be paid in full, therefore such transactions are not practiced between citizens who are not related by family ties.
For many married couples, an important advantage of a deed of gift is the fact that with this approach, real estate will no longer be considered acquired during marriage, but belongs exclusively to the person who received this gift. Thus, divorce will not become a reason for dividing the donated land, unless, of course, there is a corresponding clause in the marriage contract.
However, it is worth remembering that if the donee (who received the land) is the payer of alimony, the plot will be regarded as profit, and the amount that is paid for material support of the child will increase.
Is it possible to donate a house without land?
According to current legislation, it is impossible to donate a house without the land on which it stands.
Alienation of a residential building located on a land plot and owned by one person is carried out together with the land plot.
In accordance with paragraph 4 of Art. 35 of the Land Code of the Russian Federation, the alienation of a building or structure located on a land plot and belonging to one person is carried out together with the land plot, with the exception of the following cases: 1) alienation of part of the building, structure, which cannot be allocated in kind together with part of the land plot ; 2) alienation of a building or structure located on a land plot withdrawn from circulation in accordance with Article 27 of the Land Code; 3) alienation of a structure located on a land plot under the terms of an easement, on the basis of a public easement.
The alienation of a building or structure located on a land plot with limited circulation and belonging to one person is carried out together with the land plot, if federal law allows such a land plot to be made available to citizens and legal entities.
Alienation of a land plot without a building or structure located on it is not allowed if they belong to the same person.
Gratuitous basis and sham transaction
You can only donate land free of charge, and it will be almost impossible to return the plot if the agreement is signed (unless, of course, the new owner wishes it). When the signature is placed on the document and the notary has formalized everything, the former owner undertakes to transfer the rights to the land and the person who received such a gift no longer owes the donor anything.
If any counterclaims are found in the contract (in principle, the law allows this), it is quite easy to recognize such a transaction in court as a sham and, accordingly, cancel it. However, Rosreestr may not accept such an agreement, which automatically means it is impossible to register the gift.
What does it mean to fake a deal? It often happens that behind a gratuitous gift there are hidden agreements related to the exchange or sale of any valuable property. Such deeds of gift “with a catch” are made so that tax or other issues can be resolved profitably, for example, by shifting obligations from the donor to the recipient. After the donee fulfills these obligations, the donor can go to court and return the land to himself. In some cases, the gift agreement provides for certain obligations of the gift recipient, but related not to counterclaims, but to restrictions on the use of land or ownership of the plot.
It is possible to conclude a so-called consensual deed of gift, which assumes that the land will be transferred to the recipient not immediately after the conclusion of the agreement, but after a certain period. The legal relations of the parties in such documents may differ, but gratuitousness is the main thing that unites an ordinary and consensual agreement.
According to the law, a deed of gift can be issued not only in favor of an individual, but also in favor of a commercial company or organization, including government agencies. A commercial structure can also act as a donor, but only in relation to a private person; such transactions between commercial companies are prohibited. In addition, only privatized land can be donated.
Who can legally be considered a close relative?
Who are close relatives? This concept, as well as a detailed list of those included in it, can be found in any regulatory acts of the Russian Federation. You should pay attention to some features of the interpretation of closeness among relatives.
For example, SK in Art. 14 thinks:
- Close relatives are parents and children, grandparents, grandchildren. These also include siblings and half-brothers, as well as adopted children with adoptive parents;
- Husband and wife are not considered close relatives because they are not related by blood. They are only family members. In case of divorce, this status is also lost. The Criminal Procedure Code has a slightly different attitude to the issue of kinship.
Basic documents and new rules for 2021
The basic document for completing the transaction is a certificate that confirms ownership of the land plot; in addition, a technical passport for the plot is required. If the donor acquired the right to a plot when he was already married, in order to alienate the plot he needs to obtain and notarize the consent of the “other half” (since this property is automatically considered acquired during the marriage and therefore belongs equally to both spouses).
The donation of land, as well as any other transactions with it, in 2018 requires mandatory land surveying (documentary confirmation of the area and boundaries), as well as registration of the land in the cadastral register. Previously, this procedure was voluntary, and many owners did not do this. Now you can use a plot of land whose boundaries have not been confirmed for as long as you like, but no owner can donate it or sell it without a cadastral passport, since Rosreestr simply will not register the transfer of rights.
If, for example, the land and the house have the same owner, it is impossible to donate the plot, leaving the property for yourself, a donation agreement for the land plot and the house is immediately drawn up. However, if the owners of the house and the land are different, only the land can be donated (since it is simply impossible to donate something that is not property).
Is it possible to donate agricultural land?
Agricultural lands have their own characteristics.
Firstly, the owner cannot give such land plots to foreign citizens.
Secondly, if the owner has a share in an agricultural land plot and the number of participants in shared ownership exceeds five people, then such owner of the land share has the right to donate it only to those entities that use this land plot. It could be:
- another participant in shared ownership,
- agricultural organization,
- citizen - member of a peasant (farm) household.
The above persons must use the agricultural land strictly for its intended purpose.
Notarization
A deed of gift for land is drawn up in the form of an agreement, which can be drawn up in simple written form or drawn up and notarized (but this is not necessary). The agreement must be drawn up in accordance with the standards established by law - if necessary, you can use any template that is freely available. The document must clearly indicate the subject of the donation, name both parties, specify their duties, rights and responsibilities, reflect encumbrances and restrictions, if any, and indicate the real estate located on the donated land.
Real estate market professionals, as well as citizens who have already gotten into trouble related to such transactions, still recommend not saving on a notary, as well as on the services of a professional lawyer. The prices for such services are quite reasonable, while in the event of disputes, a correctly drawn up and certified document will help avoid the loss of land. The specialist’s task is to carefully check the submitted documents and make sure that there are no arrests or prohibitions on alienation. If the agreement is concluded by a representative of the donor, the power of attorney is checked.
Both the donor and the recipient come to the notary - if one of them is missing, it is impossible to formalize the transaction. Moreover, not only the donor must express a desire to donate land, but also the intended future owner must agree to accept it as a gift; a unilateral procedure is not provided for in such transactions.
Important Limitations
A land donation agreement will be considered illegal if it is concluded on behalf of a minor or incompetent person (representatives of these categories can only act as a donee). Moreover, if such a transaction is made by an official representative of a minor or a person with limited legal capacity in his favor, its notarization is required. Also, you cannot do without a notary if you need to donate only one or several shares of the plot.
Civil servants cannot also be recipients if the donor is not a relative; the same applies to employees of medical institutions and social services.
If the plot is located in a border zone, it cannot be donated to a citizen of another country or a stateless person. It cannot be said that such attempts occur frequently in practice, but they still occur.
In cases where the person who donated the land ultimately “outlives” the recipient (if this is provided for in the contract), the transaction may be canceled. But the gift agreement will be canceled if it states that the recipient can receive a land plot only after the death of the donor. In this case, the transaction is nothing more than a veiled will, and makes it possible to exclude the inheritance rights of persons (other than the donee) who may have a claim to the inheritance.
Exceptional cases
In certain cases, the donor can demand back the donated land and there is a high probability that he will receive it. The donor can file a lawsuit to cancel the contract if the recipient poses a serious threat both to the person who gave him the land free of charge and to his family. For example, caused bodily harm, threatened or attempted murder, and committed other harm to the donor. The agreement may also be declared invalid if the person who accepted the land as a gift does not treat it properly, for example, in a manner inconsistent with its intended purpose or status.
Is it possible to donate a share of agricultural land to another person?
Yes. You can get around the above rule by allocating your share.
As a general rule, land that is in shared ownership can be divided between its owners. To do this, they need to reach an agreement among themselves. Also, one participant may demand to allocate his share from the common property. If the participants cannot reach agreement among themselves on the conditions for allocating a share of agricultural land, then the owner of this share may demand through the court to allocate it in kind. If the allocation in kind is impossible by law, or because it causes disproportionate damage to the property of the common property, then the share must be paid in cash equivalent.
Before a land plot is formed from a share, a land surveying project must be approved for it. The document can be adopted either by a decision of the participants of the common property at a meeting, or by a cadastral engineer who will prepare a project in the absence of a decision of the meeting.
Taxation
As for the tax that is levied when registering a deed of gift, if the gift is intended for family members belonging to the first degree of kinship, the rate will be zero. If gifts are given to strangers, you will have to pay 13% of the cadastral value of the land to the state treasury in the form of personal income tax.
Receiving a plot of land as a gift entails the need for timely payment of land tax, the determination of rates of which is within the competence of local authorities. It is worth knowing that the tax deduction does not apply to gifts, and if we are talking about large plots of land alienated free of charge in favor of distant relatives or strangers, it may be worth consulting with lawyers and looking for a less expensive option. While you can get a tax deduction when buying an apartment.
After signing the contract, the property must be re-registered in Rosreestr, and only after this procedure is completed, the person who was given the plot becomes its full owner (usually this procedure takes about two weeks). Having an agreement in hand without state registration does not make the donee the owner of the land, and if the donor died before the transaction was registered (transfer of ownership rights was completed), it will not be considered completed.
What is a house deed
A deed of gift for a house is correctly called a deed of gift. This is an agreement under which the ownership of real estate passes from the donor to the donee. The main difference from other agreements is gratuitousness: under the terms of the agreement, the donor does not claim payment, compensation or any services from the recipient. The terms of payment for property are specified in contracts of employment, lifelong maintenance, and purchase and sale. The procedure for registration, document requirements and other key features of the gift agreement are stated in Chapter 32 of the Civil Code of the Russian Federation. It contains strict prohibitions - according to Article 575 of the Civil Code of the Russian Federation, a gift cannot be issued:
