Refusal of a share in a privatized apartment in favor of a relative: registration procedure and documents

There are situations when an apartment is owned by several persons at once. Whatever the reasons for the emergence of joint homeownership, this is not the best option. The shareholder will have to coordinate the alienation of his part with the remaining right holders. At the first opportunity, the co-owners strive to narrow their circle. As a rule, one of the owners gives up a share in the apartment in favor of the other owner.

In June 2021, the procedure for conducting transactions with shared ownership was significantly changed, so we will consider the features of shared ownership in the new conditions.

How can real estate become co-owned?

As established by the Civil Code, shared co-ownership arises in situations regulated by law or as a result of contractual relations (Article 244). Usually this:

• inheritance of real estate by law or testamentary disposition by several applicants;
• joint purchase of housing by several persons (usually family members);
• alienation of an object by legally permitted means. For example, the sale of an apartment “in shares” by the sole owner;
• division of real estate by divorcing spouses;
• participation in the privatization procedure of family members registered in the same area.

Be that as it may, but as a result, a person finds his “square meters”, a roof over his head. What then prompts you to formalize the waiver of a share in an apartment, house or cottage?

Why are they trying to get rid of apartment shares?

In practice, a lot can push a shareholder to this idea. In addition to the morally obsolete communal “anthills”, we will name the most common reasons today:

• re-registration of living space in favor of a relative;
• desire to improve living conditions. The person to whom the share goes has the goal of expanding the living space and eventually becoming the sole owner of the apartment;
• desire to get rid of the responsibilities of being a homeowner. Such a “refusenik” is either provided with other housing and does not want to pay taxes, utilities for space that is completely unnecessary for him, or is very strapped for money and cannot bear the burden of maintaining an apartment.

Consequences of termination of ownership

The mere fact of renunciation of property rights does not mean release from responsibilities for maintaining the property. Until it gets a new owner, all maintenance costs will be borne by the previous one.

In the case of owning a land plot, even after refusal, you will have to pay land tax for it until the moment when the plot is transferred to the new owner.

If the owner does not appear after a year after the refusal, municipal authorities may claim rights to the land. However, judicial practice shows that more often the decision is made in favor of returning the land to the former owner, if he agrees to this.

If you refuse to own any thing that poses a danger to others, the former owner is obliged to monitor its safety and ensure the safety of people.

Legislative regulation of “sharing”

Those who are thinking about giving up a share in an apartment or purchasing it should carefully study Part One, Section II, Chapter 16 of the Civil Code. It is here that you can clarify the concept of shares, the procedure for separating part of the real estate from the common property, and the basic principles of equity transactions.

Then it’s time to move on to studying the procedure for registering property rights, the intricacies of drawing up an agreement and the features of special cases. All this is regulated by laws:

• 122-FZ “On state registration of ownership of real estate and transactions with it”;
• 218-FZ “On state registration of real estate”;

The amount of state fees for registration of transactions, accompaniment of a notary, taxes and the procedure for their payment is established by the Tax Code (Article 333.24).

Reasons

For what reasons do people give up their share? There are several popular reasons:

• file a waiver in favor of relatives to increase their share;
• unwillingness to spend money on maintaining an apartment or paying taxes. Acquiring private ownership of a home means that the owner bears the full cost of repairs and maintenance. For this reason, many continue to live in municipal apartments;
• to simplify the process of selling privatized housing in the future. In this case, most often, ownership is registered in the name of one person who sells the home. As statistics show, a decrease in the number of owners allows housing to be sold many times faster;
• if a person decides to privatize other housing in the near future. For example, if a person expects to get an apartment with a larger area.

The most important features of the alienation of shares

What problems usually arise for parties to shared alienations? What must be taken into account when registering a waiver of a share in an apartment if everything happens through an alienation transaction?

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.

Methods of “giving up” the status of a share owner

Alienation of a share of real estate in favor of another person through abandonment will result in the creation of ownership/ownership rights in the other person. We have before us a legally significant action. You will have to adhere to the following points:

• voluntary start;
• capacity of the parties;
• the refusing owner reaches 18 years of age.

If at least one of the conditions is not met, the transaction can be contested in court.

How to refuse

• Through a gift agreement. It occurs more often than others. The reason is a simple and well-oiled mechanism. The opportunity to save on taxes plays an important role. But only if the deal is concluded between close relatives. An equally important bonus is that there is no need for the consent of other shareholders. The rule of primary redemption of other owners, which applies to a regular sale, does not apply.
• Refusal to participate in privatization. It is drawn up by a notary at the place of registration of the refusenik. But in this case it is impossible to refuse in favor of a specific person. The free share is distributed in proportion to the shares of the “current” owners. However, according to the privatization law, an apartment can be registered in the name of one owner with the consent of the other participants in the procedure. Including a minor family member.

Theoretically, the law provides the shareholder with the opportunity to relinquish property without identifying his successor (Article 236 of the Civil Code). But practice knows no such precedents. The reason is the “suspended” position of the vacated real estate. One owner has resigned his responsibilities, others have no reason to assume rights.

The execution of a will is not legally considered as a renunciation of a share in a privatized apartment. There is no change of owner here, and therefore it is a completely different legal mechanism. The sale of your part of the real estate will not be considered a refusal.

When is refusal impossible?

Not in all cases the owner can refuse his share .

There are a number of reasons why this is not possible. Such situations include inheritance received in the following ways:

• escheat;
• the person is entitled to a mandatory share;
• in case of refusal, another heir will appear.

Consequences

Before transferring part of your home, you need to think about the decision and make it aware of the consequences .

There is practically no chance of getting your share back . This is especially true for those contracts that were drawn up by a notary .

The court , most often, makes decisions in favor of the current owner . impossible to return housing .

Tax

If the donation is made in favor of relatives , then there is no need .

When transferring part of the housing to other persons , you will have to pay tax .

The tax amount will be calculated based on the total cost of housing specified in the gift agreement.

If it is not there, then the main indicator will be the calculation from the BTI based on inventory value . Payment of the tax falls on the donee citizen.

The rate is determined as follows:

1. for those who are not residents it is set at 30% ;
2. for citizens of the Russian Federation - 13% .

Algorithm for refusing shares

Option one: we draw up a share donation agreement. The method is relevant if you are interested in how to give up a share in a privatized apartment.

Individual situations vary depending on the specific terms of the transaction. The general conditions are:

• we receive an extract from the Unified State Register of Real Estate confirming ownership of the share (Rosreestr);
• we confirm with documents the grounds for obtaining an apartment: a privatization act, purchase/sale agreements, a will, etc.;
• We make copies of the donor’s and recipient’s passports;
• if part of the apartment, even if not alienable, belongs to a minor owner, a guardianship permit will be required;
• We go to the local notary to conclude a certified gift agreement.

It is quite possible that the notary will expand the list of required documentation. You will need to pay for notarial fees. When a special form with the signatures of the parties is received, we apply to the State Register to register property rights.

note

It is extremely difficult to cancel a deed of gift. Rare cases of challenging them are associated exclusively with the grossest violation of the law. Therefore, it is worth talking about the practical irreversibility of giving up a share when donating. Therefore, the main rule is to carefully weigh the legal consequences of your decision.

Option two: give up the share at the privatization stage.

The law provided for the participation of all household members in the privatization process. Therefore, the refusal decision is valid only with notarization. You shouldn’t sigh heavily, expecting a multi-day bureaucratic “quest”. Everything is extremely simple:

• an application is drawn up at the notary office and immediately endorsed;
• necessary payments for services are made;
• the application is attached to the privatization package.

From this moment on, all the cards are in the hands of the relatives of the person who refused the share, who complete the privatization without him.

It is worth noting that deed of gift and privatization are gratuitous enterprises. If it is established that the sale of a share is veiled under the guise of refusal, the transaction is recognized as a sham and can be canceled through the court.

Procedure

Relinquishment of property rights begins with the announcement of your decision. If we are talking about rights to real estate, then it is important to draw up a written refusal and notify the registration authorities about it. There the data will be entered into the real estate register. The application itself must be submitted to the municipality. From this moment on, the property will be considered unmanaged.

But at the same time, the owner can still:

• Submit an application to suspend the refusal procedure.
• Take back ownership of this property within a year from the date of refusal.
• Confirm your intention to renounce your property rights by finally losing your rights to it.

After the property is declared unmanaged, the former owner receives a certificate to this effect. After a year, it can be transferred to a new owner. After this, the former owner is no longer obliged to maintain the property.

Until the new owner acquires ownership of the property, the previous owner retains all of his rights.

We arrange purchase and sale

What actions are performed when buying and selling:

• It is necessary to notify the co-owners in writing of the pre-emptive right to purchase the share.
• The seller is required to obtain the consent of the husband or wife for the sale.
• The DCP and the transfer act must be drawn up in several copies. The agreement is certified by a specialist.
• Agreement, act, technical. documentation for housing and a receipt for payment of the fee are transferred to the Russian registry for registration.
• After official registration, the buyer receives rights to his share.

Where to contact

If the owner wants to give up his share, then he will need to adhere to the following procedure:

1. First you will have to make sure that the title document is not missing;
2. Then you need to draw up a gift agreement. It is created in triplicate;
3. This is followed by registration of the agreement in the Russian Register and filing of an application;
4. Registration will take place within 30 days, then a contract with a special official number will be issued;
5. Then a petition for privatization is submitted to the MFC;
6. Within a few months, special documentation will be provided, according to which the right of ownership will be established.

Deed of gift and features

The easiest procedure for re-registration of an already acquired share in the right of ownership of real estate. The deed of gift is now formalized through the signing of a gift agreement. Algorithm of actions of the owner when donating:

1. Obtain the consent of the husband or wife for the gift if the share was purchased during marriage. Consent is confirmed by a notary.
2. Three versions of the gift agreement and deed of transfer are drawn up and signed. This agreement must be certified by a specialist.
3. Then you need to collect a small package of papers: technical. apartment plan, extract from the Unified State Register, document confirming payment of the fee (2000 rubles).
4. The parties are sent to the Russian Register to register the rights of ownership of the donee. You can do everything through a notary's office - faster, but a little more expensive.
5. Upon expiration of the registration period, the recipient takes ownership of the property, and the donor loses ownership rights.

When donating a share, the consent of other owners is not required. If we talk about taxes, the donor does not transfer anything to the budget (after all, he did not receive the money), and the donee is exempt from personal income tax if the share is received from a family member.

If you already have a share

Basically, the need to re-register the owner arises when one of the owners moves or wants to concentrate the right to the entire property. It does not matter on what basis the authority appeared - after privatization, shared construction in the country or the purchase of secondary housing.

What is the best thing to do in this case:

• Give.
• Implement.

The share will go to the citizen who will be indicated by the recipient or buyer. The process of buying and selling is seriously different from donating - you need to remember this.