How to formalize a waiver of a share in an apartment? Legal consultation

A fairly common operation is to give up a share in an apartment. Typically, this situation occurs in relation to privatized housing. Or the need to refuse arises when receiving an inheritance/privatization. In any case, the property owner has the right to relinquish the property. But such a solution has several nuances. Depending on the chosen course of action, the consequences of refusing part of the apartment will depend. All the features of this procedure will be discussed below. In fact, everything is simpler than it might seem. Especially if you consider each life situation separately.

Privatization

Refusal of a share in an apartment is possible during privatization. In this case, a citizen registered in municipal housing simply expresses his reluctance to participate in the operation. After privatization, he does not become the owner of the property, but at the same time continues to be listed among the residents.

To refuse in this case, you will need to contact a notary with a corresponding application. It must indicate that the citizen does not want to participate in the privatization procedure for a specific housing.

Official registration of divorce at the registry office

An application for the desire to formalize the dissolution of the union is officially submitted by both spouses to the territorial registry office or to the registry office where the union was consolidated. It often happens that a couple wants to end the relationship peacefully, not divide common property and complete the documents as quickly as possible. Divorce through the registry office is possible only if certain conditions are met.

• The couple wants to divorce by mutual consent.
• There are no joint children under 18 years of age, one of the spouses signed a waiver of the division of jointly acquired and purchased property.
• One of the spouses has disappeared, there has been no information about him for a long time, or he was imprisoned for more than 3 years.

In order to file a divorce without dividing the common goods, subject to the above factors, you must submit a petition to a representative of the registry office and provide the required list of documents.

What must be indicated in the application:

• personal data of both parties (this includes full passport data)
• the date on which the spouses wish to file for divorce;
• indicate the surnames that both spouses will bear after the dissolution of the union;
• indicate that there are no property claims.

List of required documents:

• internal passports of both parties;
• marriage registration certificate;
• a check confirming that both parties have paid the state fee;
• other papers, for example, a prenuptial agreement and an agreement confirming the refusal to divide all property acquired jointly by the couple during the marriage.

If, within the 30-day period, the former lovers decide to maintain the union, they can withdraw the application if they wish. If this does not happen, on the date specified in the application, the woman and man come to the registry office and receive a divorce certificate.

Each person is provided with an individual copy.

Normal failure

In Russian legislation there is such a thing as an absolute refusal of a share (in an apartment and not only). It provides for the abandonment of property in favor of no one. In fact, the property will hang in the air - the old owner will abandon it, and other citizens will not have legal grounds to formalize their property rights.

This arrangement is regulated by Article 236 of the Civil Code. But he doesn't exist in real life. Therefore, we will not consider such a scenario.

Refusal of a share in an apartment in favor of the state

Property can be given up in favor of the state as a result of deprivatization. But all owners must approve it. The apartment cannot be returned to the state without the consent of at least one of the owners. It is possible to carry out deprivatization if the apartment was previously provided with ownership on the basis of an agreement on the transfer of housing to citizens who are tenants of housing under a social tenancy agreement. The procedure is completely free.

The remaining owners who own the apartment not on the basis of privatization can also abandon the property, according to Art. 236 of the Civil Code of the Russian Federation. You need to start by submitting the appropriate application to the municipality. However, the owner must bear the burden of maintaining the apartment until government agencies make a decision to place the apartment on the balance sheet.

Click to enlarge image

Read: Rules for the privatization of municipal housing in 2021

Inheritance

How can you formalize the waiver of a share in an apartment that is inherited by citizens?

This can be done only after inheritance rights arise. You will have to go to a notary and write the appropriate paper. It should state that the heir refuses the property due to him.

The time to make a decision regarding receiving an inheritance in Russia is 6 months. After this, the citizen is automatically deleted from the list of heirs. So you can just wait.

Important: giving up a share in the apartment, but accepting the rest of the inheritance is prohibited. The heir writes a renunciation of the testator's property within the framework of one or another form of inheritance (by law or by testamentary document).

Basic information

Current domestic legislation allows you to formalize the abandonment of jointly acquired property during marriage, after a divorce, or during the divorce process.

Before registering the marriage relationship, the husband will not be able to formalize the renunciation of his share in the jointly acquired property. According to the law, joint property is acquired during the marriage, and not before its registration.

What property is considered joint property during a divorce?

An oral agreement between a husband and wife has no legal force; you will need to formalize your refusal in writing.

Refusal of part of the joint property is accepted by the spouse solely at his voluntary request. The wife has no right to put pressure on him, being interested in the fact that the property belongs to her after the divorce.

In addition, there are cases when the husband will not be able to formalize the refusal in favor of his wife:

• the man is officially declared mentally incompetent;
• the spouse suffers from deterioration in health;
• the husband is misled by his wife and relatives.

However, there are things that cannot be divided between husband and wife:

• property acquired by a man before the marriage was registered;
• service and municipal real estate;
• personal items – shoes, clothes, tools;
• intellectual property;
• child's property.

For spouses

Refusal by a husband (or wife) of a share in an apartment is another fairly common case. A special form of regulation of property relations is provided for spouses. We are talking about a marriage contract. In it, spouses can register who and what will belong to the property (current and future). And in this case, the apartment is purchased only for the wife/husband. No refusals or other paperwork.

In addition, spouses can renounce their shares in housing using deeds of gift. Most often, they are registered either for husbands/wives or for children. This form of property transfer is the most common in Russia.

How to formalize the refusal of jointly acquired property objects

Spouses will need to decide what kind of document they will draw up:

• marriage agreement;
• gift agreement;
• spousal renunciation agreement;
• receipt.

Marriage agreement

Marriage agreements are currently not in high demand in Russia. This document indicates to which person ownership of the property is transferred. If a husband transfers ownership of several property objects to his wife at once, it is necessary to include a list of them in the document.

Pros and cons of a prenuptial agreement

Donation agreement

When a husband draws up a gift agreement for his wife, he thereby confirms his renunciation of jointly acquired property assets, and also expresses his consent to the transfer of property rights to his wife.

At the same time, you can draw up a deed of gift not only for your wife, but also for your children in equal shares.

Spousal consent agreement

How to draw up a waiver agreement? You can choose one of 2 methods - in written or printed form. Regardless of the writing, the document will need to be certified by an employee of a notary agency.

The agreement will require the following information:

• Full name of the spouses without any abbreviations;
• a list of property objects that are transferred into the wife’s possession;
• a record that the husband does not claim the joint property transferred to his wife, renounces his personal share in favor of the woman;
• passport details, residential address, date of birth, contact details;
• signatures of husband and wife;
• relevant certificate of an employee of a notary agency.

Receipt

A receipt has less legal significance, unlike an agreement.

The receipt is drawn up in writing and must include the following information:

• applicant's passport details;
• title of the document and date of its writing;
• duration of validity of the receipt;
• the essence of the document drawn up: who will be the new owner of the property, what objects are transferred in favor of the wife, etc.

The receipt can be certified by an employee of a notary agency or in court.

Consequences

This operation has a number of important legal consequences. They directly depend on the form of refusal of a share in the apartment.

If a citizen refuses to participate in privatization, he will not have any property rights to housing. But at the same time he will not be deprived of the right to live in the apartment.

In case of refusal of inheritance, the potential recipient of the property loses all opportunities to obtain rights to the apartment or its share. He will not be able to live in it or dispose of it.

The presence of a gift agreement also deprives the previous owner of the property of any rights to the property. But under certain circumstances such an agreement can be revoked. Refusal from privatization and inheritance does not provide for such feedback.

Cost of notary services

The cost of notary agency services depends on the price of the real estate that the husband transfers to his wife.

So, if the price of real estate is 10 million rubles or less, then you will need to pay 3 thousand rubles and 0.2% of the property valuation. If its price is more than 10 million rubles, you must pay 23 thousand rubles and 0.1% of the transaction amount, maximum 50 thousand rubles.

When the subject of the refusal is movable property (for example, a car), the cost of the services of a notary agency employee is set depending on the amount of the transaction being concluded.

Sale

The most non-standard form of giving up a share in an apartment is its sale. In this case, the citizen actually sells his property.

Selling a share in an apartment is an operation that requires special attention. The point is that in this case all owners of the apartment will have the pre-emptive right to purchase. If they refuse to buy the share within 30 days from the date of written notification to the owner, they can sell part of the housing to third parties.

In case of common shared ownership, in order to sell part of the apartment, you will have to obtain the consent of all other owners of the apartment for the operation. Otherwise, the procedure for selling a share of housing will not have any special features.

When can you get a divorce without division?

Divorce is not an easy process, including from a psychological point of view. It is especially difficult for couples who have lived together for many years, who have common children under 18 years of age and a lot of jointly purchased and acquired property during the period of their formalized relationship. In this case, the question of the future fate of the child and what share of property will go to each party after the divorce will have to be decided. Sometimes one of the couple may refuse his possible share. Cases when you can get a divorce without determining the share of property of each spouse:

• Divorce without division of property jointly acquired and acquired during the relationship is possible if one of the parties decides to voluntarily renounce its possible share in favor of the other half.
• If the property, which is officially registered in the name of one of the couple, was not purchased while living together, it is not supposed to be divided, since it is not considered jointly acquired.
• A man and a woman foresaw everything before marriage and drew up an agreement according to which one party has no property claims against the other. The document must be certified by a representative of a notary office; it is not subject to refutation.

If 3 years have not yet passed after the final dissolution of the union, and during this time one of the spouses has learned that the other has been hiding from him property acquired while living together, what to do is a personal matter for the “deceived.”

The court allows, before the expiration of this period, to file a claim regarding the division of jointly acquired and acquired property during the period of official relations or to submit an application confirming the refusal of it.

The process of abandoning privatization

How to formalize a waiver of a share in an apartment? Let's start with a step-by-step study of privatization. More precisely, participation in the process.

As already mentioned, a citizen can refuse privatization. To do this he will need:

1. Collect documents: passport, certificate of registration, social employment agreement.
2. Write a refusal to participate in privatization. The text must have a detailed description of the apartment and the phrase “I refuse to participate in the privatization process.”
3. Come with the prepared papers to the notary. Give him the package of documents.

At this stage, the authorized person certifies the refusal and issues the citizen a corresponding certificate. You can forget about privatization. It is advisable to formalize consents and refusals for the operation at the same time as the other residents of the apartment.

Refusal of a share purchased with maternity capital

Buying an apartment with maternity capital and bank borrowings

Since when purchasing real estate using maternity capital funds, ownership must be registered in the name of all family members (Article 10 of Federal Law No. 256-FZ of December 29, 2006), it is not possible to refuse the share at the stage of paperwork.

Transferring a share in an apartment to children or a spouse will not be difficult after registering ownership of all family members and paying off the encumbrance on the apartment. When the apartment is at the complete disposal of the family, without collateral or mortgage, a share can be donated.

There is no other option to give up the share of an apartment purchased with maternity capital.

So, you want to give up your share in an apartment purchased with maternity capital funds.

To do this, you must close the obligations:

• for mortgage payments (if bank money was used in addition to maternity capital);
• on a pledge in favor of the seller. When the funds under the certificate arrive in his account, the seller must contact Rosreestr to remove the encumbrance.

After closing your debts, you can donate your share of the apartment. As mentioned above, transactions with shares are notarial. The notary will draw up a gift agreement, according to which your share will become the property of other family members.

Read: Procedure for allocating a share in an apartment: procedure, nuances, regulation

Notarial obligation

When buying an apartment with the help of maternity capital, to simplify things, sometimes the apartment is registered in the name of one family member, for example, the father. But he must prepare an obligation that is a guarantee that after repayment of the encumbrance, the shares will be distributed among all family members. The document is certified by a notary and submitted to the Pension Fund.

After all debts on the apartment are repaid, you need to:

1. Contact a notary to fulfill the obligation - drawing up an agreement on the redistribution of shares.

The notary will submit the agreement to Rosreestr, as a result, a share will be registered for each family member. The owners determine the size of the share at their own discretion.

1. Now you can begin to transfer the right from you to your children or spouse, which is drawn up in the form of a notarial gift agreement.

Thus, in order to give up a share in an apartment purchased with maternity capital, you must first register ownership rights for all family members, pay off encumbrances, and only then can you dispose of your share.

Read: What is a technical passport for an apartment and why is it needed, how and where to get it in 2021

Inheritance

You will have to act in almost the same way when it comes to inheritance. A notarized renunciation of a share (in an apartment or other property) under such circumstances is mandatory. However, you can do without registration. To do this you will have to wait six months.

To renounce inheritance you will need:

1. Create a package of papers: passport, death certificate of the testator, property documents, certificates from the citizen’s place of residence, documents on kinship, will (if available).
2. Write a refusal of inheritance. In our case, we are talking about a share in an apartment. You will need to write in the text of the document “I renounce the inheritance due to me from a citizen... in favor of...”.
3. Contact a notary's office and obtain a certificate of renunciation of inheritance.

That's all. Nothing difficult, unclear or special. This task takes a minimum of time and effort.

Receipts for giving up an apartment during a divorce

In some cases, a married couple can issue a quitclaim deed to property acquired during the marriage. This document is drawn up in writing, but is not notarized, and therefore has no specific legal force. And according to this document, it will not be possible to completely abandon the apartment after a divorce in favor of the other half.

To ensure that all actions of spouses when dividing jointly acquired property are legal, you should choose document options for their execution,

provided for by the Family Code of the Russian Federation:

• An agreement that the spouses drew up during their marriage and had it certified by a notary.
• A court-approved settlement agreement on the division of property acquired during marriage.

These documents must be drawn up in writing, in a prescribed format and must be notarized.

Donation agreement

How to formalize a waiver of a share in an apartment? The most common option is to write a deed of gift. This form of property transfer has a number of advantages. For example, the gifted share will be recognized as the personal property of the donee (even in marriage), and it is not divided during a divorce.

Registration of deeds of gift does not require mandatory notarization. But it is better to act through a notary. This way you can secure the deal.

Necessary:

1. Write a gift agreement. It contains information about the donor and the recipient, as well as about the property that is being presented as a gift.
2. Collect the documents necessary for the operation: passports of the parties, donation agreement, technical papers for the apartment, certificates of ownership, receipts for payment of duties (if necessary). Documents proving kinship (if available) will also be useful.
3. Contact a notary with prepared papers. Or you can immediately come to Rosreestr with 3 copies of the agreement.
4. Sign the deed of gift.
5. Issue a certificate of ownership in Rosreestr. If citizens acted through a notary, then the authorized person will issue them certified copies of the gift agreement.

It is done! As soon as the applicant enters new information about the owner into Rosreestr, the renunciation of the share in the apartment can be considered completed.

Refusal of a share of an apartment in favor of another owner or relative

Since the renunciation of property rights in favor of another person means the voluntary transfer of housing, the ideal option would be to donate a share.

You can renounce a share in an apartment in favor of another owner, parents, or child by signing a gift agreement and registering it with Rosreestr.

What you need to know about donating a share:

1. Alienation of a share in any way must occur under a notarial agreement, and no other way, even if we are talking about close relatives. The downside of notary participation is the actual cost of a specialist’s services.
2. The most important condition of the deed of gift is the consent of the donee to accept the property as a gift, and the gratuitous nature of the transaction.
3. Moreover, if the parties to the agreement are parents, spouses, children and grandchildren, that is, immediate relatives, payment of 13% property tax is not required. When transferring a share to another apartment owner who is not closely related to the donor, tax will have to be paid. An aunt and nephew, for example, are not considered immediate family members.

When donating a share, the consent of other owners who have the right of first refusal is not required.

This is another feature of the gift transaction. In the case of a sale and purchase, for example, it would be necessary to send a notice to all owners about the share being sold indicating the real price of the transaction, and it would also be necessary to wait at least 30 days so that the neighbors could express their intention to purchase part of the apartment within the period allowed by law. And you can give a share to anyone without sending notifications to the other co-owners.

All you need to register a gift is to contact a notary. He will prepare an agreement, and after full payment for his services, he will independently submit an application to Rosreestr to register the transfer of rights. All you have to do is pick up an extract from the Unified State Register from him. The consent of the donor's spouse is also not required.

If the child is under 14 years old, the gift agreement is signed for him or her by a legal representative or guardian. A child from 14 to 18 years old signs independently, but in the presence of parents or guardians.

A minor can be a donor only with the consent of the guardianship authorities. To the recipient - without their consent.

The cost of notary services in this case will depend on the cadastral value of the apartment and the size of the share. Article 22.1 of the Law on Notaries of February 11, 1993 No. 4462-1 determines the tariffs for certifying contracts. The state fee for registering the right will cost the new owner 2,000 rubles.

Gift taxes

A sample waiver of an apartment share has been presented to your attention. It is worth remembering that deeds of gift provide for the payment of taxes after receiving property as a gift.

Typically, recipients must pay 13% of the value of the gift (in our case, a share in the apartment). If the property is transferred to a foreigner, you will have to pay 30% of the cadastral price.

Only close relatives are exempt from taxation when receiving property under a gift agreement. These include:

• wives;
• husbands;
• moms and dads;
• children;
• grandparents;
• grandchildren.

As practice shows, deeds of gift predominate among close relatives. This is the most reliable form of transfer of property during the lifetime of the owner of the property.

What property is not subject to division?

Regardless of whether a couple will divorce with division of jointly acquired property or without division of property, there is property that cannot be divided in any case.

• You cannot divide property that was purchased before the official marriage.
• Inheritance. If, during the period of official relations, someone received an apartment or a car from close relatives, then this is considered property that cannot be divided. The only exception may be the fact when the second spouse made a significant material contribution to the improvement of the apartment or the repair of a car, for example.
• Personal property. This category includes personal items, human copyrights, and patents.
• Property that was acquired after the dissolution of the union.

Spouses' contract

It’s clear how you can write a statement renouncing a share of an apartment. Some spouses prefer to immediately buy property for their husband or wife, having previously drawn up a marriage contract. It allows you to avoid problems during divorce.

The marriage contract is drawn up as follows:

1. Prepare the following papers: marriage certificate, documents for joint property, passports of the parties, marriage contract.
2. Sign the agreement in the presence of a notary. An employee of a notary office will help you draw up a legally competent agreement.
3. Pick up a certified marriage contract.

The described algorithm of actions is not a refusal of shares. But it allows you to avoid unnecessary property disputes related to the mentioned operation.

Passive refusal

In some cases, the husband or wife makes a “passive” refusal to share the common property.

Such actions occur in the following cases:

• The apartment was originally registered to one of the spouses. For example, it was given to the wife before marriage under a gift agreement.
• The property is under a mortgage and the husband or wife does not want to allocate their share of the property.

The advantages of a “passive” refusal include a quick solution to the issue of dividing an apartment; its owner is immediately determined.

But there are also disadvantages to this option:

• Until one of the spouses formalizes a voluntary or amicable agreement, the other party will not be able to sell, gift or exchange it.
• A husband or wife can challenge their right to real estate not from the date of divorce, but from the moment when the other half wants to sell, donate or exchange an apartment. Therefore, the process of dividing joint property may be significantly delayed.

If one of the spouses adheres to “passive” actions, the other half can interrupt such an uncertain status. To do this, you need to file an application with the court to divide the property and allocate a share for each party. Then the husband or wife, who does not want to give up his share, will be forced to admit part of his wealth, or to make an active refusal.

Methods

There are several methods of abandoning part of real estate:

• refusal to participate in privatization;
• donation;
• sale and exchange;
• refusal of inheritance.

Opting out

It is possible to give up the share of an apartment during the privatization process, that is, when the apartment still belongs to the municipality.

To do this, the citizen will need to draw up an appropriate document confirming the refusal from a notary.

To refuse to participate in privatization, you need to perform a number of necessary actions:

1. Where to go? Visit a notary in your region of residence and get the refusal in writing.
2. What documents are needed? Personal passport, documents for the apartment and a notarized refusal.
3. Where to submit documents? To the local authority that accepts official papers for privatization.
4. The registration period is up to 10 working days.
5. There is no state duty.
6. In what cases can they refuse? If a minor citizen is excluded from participation in shared ownership without the official permission of the guardianship and trusteeship authorities.
7. Features and nuances. Alienation cannot be carried out in this situation in favor of a specific family member, since the share of the refused citizen is distributed equally among the owners.

Important! Minors cannot refuse a share in property in privatized housing, according to Art. 7 of the law “On the privatization of housing stock in the Russian Federation”, unless otherwise permitted by the guardianship authorities.

Procedure for registering a deed of gift

The most common way to renounce a share is through donation. The owner of shared property can donate his square meters to other apartment owners and even to an outside entity. Registration of a deed of gift is very simple: it only requires the consent of the donee, and there is no need for the consent of other participants in shared ownership.

The deed of gift must include the following information::

• personal data of the donor and recipient;
• cadastral number and address of housing;
• the size of the transferred area in the apartment;
• the donor's property rights;
• the presence of persons registered in the apartment who are not the owners;
• presence of other encumbrances.

To give up your share of a privatized apartment using this method, you need:

1. draw up a gift agreement in simple written form; it is not necessary to contact a notary;
2. the transaction is registered with the territorial body of Rosreestr in the region of Russia where the subject of the agreement is located;
3. you should submit to Rosreestr a cadastral passport, passports of the donor and the counterparty, documentation of the right to the share;
4. processing time - up to 30 calendar days;
5. The state fee is paid by the donee (if he is not a relative of the donor - its amount is 13% of the cost of the share in the apartment). Relatives do not pay state duty;
6. They may refuse if the residential property is under arrest;
7. features and nuances of donation - if the alienation of a share by way of donation occurs in favor of a third party, the consent of the remaining owners of the apartment is required.

Sale or exchange

When selling or exchanging a privatized share, apartment owners have an advantage in completing the transaction over third parties. A citizen who wants to sell his part of the property is obliged to notify other owners about this in writing, indicating the cost and other terms of the transaction (Article 205 of the Civil Code of Russia).

Reference! After receiving the notice, the co-owners of the apartment must buy out their part within one month. Sale to third parties without the waiver of all owners of their shares is impossible.

To give up your apartment share this way, you must:

1. prepare a purchase and sale agreement in simple written form in common ownership of the apartment without visiting a notary;
2. in addition to the purchase and sale agreement (exchange), it is necessary to collect a package of documents, which includes a cadastral passport, personal passports of the seller and buyer, documents confirming the consent of the owners to complete the transaction, as well as documents on the right to a share;
3. documentation must be submitted to the regional Rosreestr;
4. processing time - up to 30 calendar days;
5. when selling a share to another owner of a privatized apartment, no state duty is charged; to unauthorized persons, the buyer pays 13% of the cost of the part of the residential property being sold;
6. a refusal to formalize a transaction can be obtained if not all owners agree with the implementation of the transaction;
7. The peculiarity of concluding a transaction is that the registration authority will need to provide written waivers from the co-owners of the property from the pre-emptive right to purchase.

Inheritance

A citizen who is an heir to a share in privatized housing has the right to refuse real estate.

1. The corresponding document is drawn up by a notary.
2. It is necessary to provide a personal passport, a document of inheritance, a document of ownership and a cadastral passport to the notary's office.
3. Refusal of inheritance is processed within 10 working days.
4. State duty is not charged.
5. It is impossible to refuse an inheritance if less than 6 months have passed since the death of a relative and the citizen has not yet entered into inheritance rights.
6. The nuance of the procedure is that in this case partial refusal of inheritance is unacceptable - only alienation of the entire share of the area of ​​​​the inherited housing is possible.

You can find out more about how to allocate a share in a privatized apartment and what else you can do with part of your home here.