Gift deed for an apartment with the right of lifelong residence of the donor: important features

A deed of gift with the right of lifelong residence of the donor is a special category of agreement in which the donor presents real estate to a second party under certain conditions.

According to Article 572 of the Civil Code of the Russian Federation, a gift agreement is a gratuitous transfer of property rights from one party to another. The donee does not pay anything to the donor when concluding this type of transaction.

However, this agreement may contain certain clauses indicating the fact that the donor has the full right to live in the presented apartment for life.

Definitions

Preservation of the right of use upon change of owner.

The interpretation in the law: “unless otherwise established by law” makes reference to Art. 31 of the Housing Code of the Russian Federation, which states that in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family. If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by to the specified owner, may be retained by a former member of his family for a certain period of time on the basis of a court decision (Part 4 of Article 31 of the Housing Code of the Russian Federation).

This means that a person registered in a residential area can be deregistered and deregistered at the request of the new owner, unless there is a special agreement between the owner and the former family member.

In addition, at the request of a former family member, the court may retain the right to use residential premises for a certain period in the following cases:

a) a former member of the owner’s family does not own any other residential premises, there is no right to use other residential premises under a lease agreement; the former family member is not a party to an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing, etc.; b) if a former member of the owner’s family does not have the opportunity to provide himself with other residential premises (buy an apartment, enter into a rental agreement for residential premises, etc.) due to his property status (no income, insufficient funds) and other noteworthy circumstances (health status, incapacity for work). age or health status, the presence of disabled dependents, loss of work, study, etc.).

The right of a former family member to eliminate violations of his rights to residential premises from the owner is enshrined in Part 3 of Art. 292 of the Civil Code of the Russian Federation. This means that a former family member can bring a claim against the new homeowner.

Current standards

Legal regulation of the donation process is carried out in accordance with the following legal acts:

Also, the parties should pay attention to the materials of judicial practice if a controversial situation arises between them.

A donation can be challenged, but certain circumstances must be present; practice will allow you to better analyze the situation.

Gift of an apartment: general characteristics

This type of transaction is quite often used both between citizens who are related and not connected by blood ties (friends, legal entities, etc.).
Such an act has a number of positive and negative characteristics for both counterparties. For the legal execution of the contract, you need to go through a cycle of operations to register and formalize it. In this case, there should be no counter-gifts from the recipient.

And there is also one more nuance in which the apartment donated by the owner is excluded from the owner’s inheritance after his death.

This happens if the transfer of authority to this property was not recorded in the Unified State Register, and the agreement was already signed and submitted for state registration, but for some reason was not registered.

Under such circumstances, the recipient can defend his rights in court. However, judicial practice is contradictory; it all depends on the specific circumstances of the case.

Who benefits from the deal?

A gift agreement with lifetime residence of the donor, due to its specificity, has both positive and negative sides, both for the one who transfers ownership of the apartment and for the one who receives it.

Donor's benefit

A person who has donated his apartment, specifying certain non-property conditions in the contract, receives a lifelong right to remain on its territory and use it at his own discretion in terms of housing and living conditions. This helps people who have low income (for example, only a pension).

By transferring ownership of the apartment to another person, the donor is released from the obligation to pay utility bills, since he is no longer the owner of this property.

After the transaction is concluded, the donor remains to live in the donated apartment and has every right to maintain his registration (propiska). This is recorded in the Civil Code of the Russian Federation, in Article 558, and is relevant for 2021.

When concluding a gift agreement, the current owner of the apartment can specify a certain amount of conditions, in addition to lifelong residence. For example, provide for the right of residence in the apartment of third parties (spouse or relative of the donor). You can also prescribe an obligation on the part of the recipient to make timely repairs to the apartment (in case a pipe bursts or the sink needs to be replaced, etc.).

According to Article 450 of the Civil Code, the donor has every right to reclaim the apartment if the terms of the contract are not fulfilled by the new owner of the apartment.

So, the advantages for the donor include the following:

• the right to lifelong residence in a donated apartment;
• the right to live in the premises is absolutely free;
• maintaining registration;
• the ability to introduce a number of non-property conditions into the contract;
• the opportunity to appeal the deal in court (if the other party violates the terms of the contract).

But there are also disadvantages to this deal:

1. The donor cannot count on any material rewards or gifts for transferring the apartment into the possession of another person. The contract does not provide for such things, and therefore does not oblige the recipient. If the new owner wishes to show gratitude in some way, he can do so solely for personal reasons. Oral preliminary agreements will not be considered legal.
2. The new owner of the apartment has the absolute right to dispose of the apartment at his own discretion. For example, sell it or give it to a third party.

Benefit for the recipient

The main benefit for the person to whom the apartment is given is the receipt of real estate for free.

In addition to the above, the advantages for the recipient are expressed in the following:

1. A person who has received an apartment under a deed of gift can dispose of it at his own discretion completely freely, that is, sell it, give it to a third party, or rent it out.
2. Relatives from the donor's side (spouses, children, etc.) cannot claim the right to own an apartment. The donated apartment is no longer joint marital property or an object of inheritance.
3. The new owner of the apartment is the only person who has the right to dispose of the apartment. In the event of a divorce, the spouses do not divide the property that was given by gift.
4. The recipient is not obliged to care for the donor or provide for him for life.

If the transaction is made between relatives, there is also the absence of tax on profits expressed by the receipt of real estate. If the contract is concluded between parties who do not have family ties, tax is mandatory.

Among the disadvantages of the transaction for the recipient, the following points can be noted:

• The new owner of the apartment does not have the right to evict the donor from the donated living space.
• Despite the fact that the recipient receives full rights to dispose of the property, selling or renting out living space can be problematic. Few people will want to buy or rent a premises in which a stranger (donor) lives on a permanent basis.

Also, the recipient is obliged to comply with the procedure for using the living space, which is indicated in the donation agreement.

Donation agreement with encumbrance

An encumbrance refers to some specially created circumstances or obstacles to limit the new owner in the use of real estate acquired by him as a gift.

This deterrent occurs when the owner of the apartment tries to exercise his legal rights to the property to the detriment of the donor.

A mortgage on an apartment is the most common type of encumbrance. Every citizen in our country is now familiar with it.

For example, you purchase an apartment with a loan taken from a bank and apply for a mortgage. Consequently, from this moment the purchased living space does not completely belong to you, since it is pledged to a financial institution until the loan is fully repaid. This is a burden!

Therefore, you cannot yet dispose of the property in full; there are significant restrictions. Every step you take is carried out with the permission of the bank.

As soon as you decide to donate such real estate to relatives, a gift agreement with an encumbrance is drawn up, which contains the relevant clauses of the rules of the agreement.

When concluding an agreement with an encumbrance, the donor’s authority to dispose of the apartment does not undergo the registration procedure in the Unified State Register, but he has the right to use the living space legally with permanent registration.

Donation of an apartment with lifelong residence is divided into 3 main types.

Clauses and information in the contract

The content of the donation agreement with a lifelong right of residence is arbitrary, but there are several mandatory points to fill out using an example sample:

• document's name;
• date and place of conclusion of the contract;
• designation of the parties involved;
• a description of their rights and obligations;
• information about the subject of the agreement;
• presence of debts and possible encumbrances;
• responsibility of the parties to fulfill their obligations and possible consequences in case of failure to fulfill them;
• special terms of the contract (right of residence for third parties, obligations regarding repairs and maintenance of housing);
• the main reasons for changing or terminating the contract;
• procedure for consideration of controversial issues;
• the moment when the contract comes into force and ownership passes from the donor to the recipient of the gift;
• details of the parties and their signatures.

A clause must be included that the donor voluntarily agrees to the transfer of his property, being of sound mind and not under the pressure of difficult circumstances. Separately, you can stipulate additional points regarding the fact that the donor can use the entire apartment or a separate room, just as the heirs or other representatives of the recipient use the housing.

The contract may stipulate that the donee bears the costs of legal support of the transaction and pays the state fee. Note how he is involved in the repair and maintenance of housing.

Mixed gift

A mixed type gift agreement implies the fact that the donor has the right to own real estate for the rest of his life in partial form.

That is, under such conditions, the donee assumes the responsibility of providing the donor with an unhindered right of residence in the given living space without a period of time.

With the right of ownership and use

The agreement states that the donor has the right to use the apartment for life, after which the living space indicated in the deed is transferred with full rights and obligations to the person to whom it is presented.

The procedure for use has been agreed upon

In this case, the general order in the order of priority for the use of real estate specified on a contractual basis between the two counterparties of this agreement is agreed upon.

In our case, there is an agreement between the donor and the person taking ownership of the property.

Rent

Under a rent agreement, one party (rent recipient) transfers ownership of property to the other party (rent payer), and the rent payer undertakes, in exchange for the received property, to periodically pay rent to the recipient in the form of a certain amount of money or the provision of funds for its maintenance in another form.

clause 1 art. 583 Civil Code of the Russian Federation

There are three rental options:

• permanent annuity;
• life annuity:
• lifelong maintenance with living (PSI).

Rent is a burden. When the encumbered property is alienated, the payer's obligations pass to the new owner. Rent agreements are subject to notarization, and when transferring real estate, also state registration. The transferred property is pledged to the recipient. The payer is obliged to ensure the fulfillment of his obligations in any way provided for by the Civil Code (penalty, guarantee, etc.) or to insure the risk of liability for non-fulfillment. In relation to the topic under consideration, life annuity and PSI are of interest.

Under a lifetime annuity agreement, the payer regularly makes lifetime cash payments to the recipient or a person specified by him in an agreed amount. When transferring property to the payer free of charge, the amount of the monthly payment cannot be lower than the subsistence level. Payments can be made in favor of several persons in equal shares. After the death of one of the beneficiaries, his share is distributed among the others. Property can be transferred for a fee. For late payments, interest is paid based on the Central Bank rate.

In the event of improper fulfillment of obligations by the payer, if such violations are of a significant nature, the recipient has the right to:

• demand the redemption of the rent at the price established by the contract, and if the price is not established - in the amount of the annual rent in the case of a paid transfer of property to the payer and in the amount of the annual rent plus the cost of the property in the case of a gratuitous transfer;
• demand termination of the contract and compensation for losses.

The responsibilities of the annuity payer for lifelong dependent maintenance may include caring for those in need

PSI has the following main differences from life annuity:

• the transferred property is only housing and other real estate;
• the payer’s responsibilities may include meeting the recipient’s needs for housing, food, clothing, as well as care if needed and payment for funeral services, and with the free transfer of property, the cost of monthly maintenance is set at two subsistence minimums;
• By agreement of the parties, in-kind support may be replaced by cash payments.

Disadvantages and advantages follow from the content of transactions. Unlike living gifts, annuities and IPAs are intended to provide financial support to recipients in exchange for property. If the owner’s goal is to receive systematic assistance, for ethical reasons it is not necessary to formalize the relationship in the form of a living gift. The deterioration of intra-family relations and the non-participation of the recipient in providing for the donors are the reasons for numerous lawsuits.

From my experience in the field of social protection, I can share some observations and conclusions. Quite often, grandmothers or elderly parents verbally agree with children/grandchildren living together or nearby, and other relatives about at least periodic feasible assistance in exchange for a gift. The donation is often made bypassing the primary or immediate heirs. As a result, assistance is not provided, and the donor finds himself in a defenseless position.

At best, an elderly person has no opportunity to either return property or receive support. In the worst case, the situation is aggravated by constant quarrels and conflicts with the recipient. Donors regularly try to invalidate gift agreements to relatives, citing misconceptions about the subject of the transaction, poor health at the time of conclusion, etc., but the courts usually refuse such claims (for example, the decision of the Sretensky District Court dated August 24, 2017 in case no. 2–355/2017).

If there is other property suitable for transfer to the payer (including more than just housing), a lifetime annuity will be preferable for both parties. Rent in cash allows you to eliminate or minimize communication between the parties to the transaction, which will significantly reduce the risk of interpersonal conflicts. The fact of regular transfer of funds is easily confirmed and refuted.

The best option for elderly homeowners in need of financial assistance and physical care is PSI living in transferred housing. In PSI contracts, the payer appears less protected. To protect his rights, the payer must confirm all payments and purchases in favor of the recipient. The absence of evidence of expenses incurred is regarded by the courts as their absence, which is clearly a significant violation of obligations. The vagueness of the term “care” allows it to be interpreted in the broadest sense, from delivering food to your home to maintaining a garden. If a conflict arises between the parties to the transaction, the payer risks being left without the property received under rent and the funds spent on the recipient, not counting labor costs and time (for example, the Decision of the Sinarsky District Court of Kamensk-Uralsky dated August 21, 2017 in case No. 2-491/2017 ). At the same time, cases of outright abuse are not uncommon. After the transaction is completed, unscrupulous payers disappear in the hope that the recipient will not go to court or will soon die (typically the Decision of the Sukholozhsky City Court of August 21, 2017 in case No. 2-677/2017).

Video: rent

What are the differences from a regular apartment donation agreement?

As stated above, there are no significant differences in design. The main thing that should be indicated is special conditions that should not be measured in monetary terms.

Since the transaction is free of charge, the terms and conditions should not in any way affect the material interests of the parties.

In the contract itself, in the block about the rights and obligations of the parties, you need to indicate the conditions that suit both parties. For example, it may be stated that the owner can live in the apartment for the rest of his life and use all communications. At the same time, no support is required from the recipient: neither material nor moral. The living conditions of third parties may also be indicated. For example, the owner's wife or his children.

But all these clauses will cease to apply on the day of the owner’s death. This is the main difference from a regular deed of gift. In a regular contract, all clauses begin to apply from the moment of signing and their validity is unlimited. The conditions relating to the owner's residence will cease to apply on the day of his death.

After these clauses become invalid, the property remains the property of the donee. The owner's residence does not give relatives the right to inherit.

Features of donation with the right of lifelong residence

Unfortunately, according to the laws of the Russian Federation, the donor is not insured against unforeseen aggravating cases in the completion of a gift transaction.

Even in the case of drawing up a contract with an encumbrance, when the donor has all the rights to continue living in the designated living space, the new owner can dispose of this property at his own discretion.

Attention is important! He also has the right to present it to someone, hand it over under a leasing agreement, and ultimately sell it. And no one will prevent him from doing this, since he will act within the framework of the law! Based on Article 572 of the Civil Code, we can confidently say that the gift transaction is a gratuitous act. And any gratuitousness does not provide for reversion, or, moreover, joint use of the object of donation.

The very act of donation with the possession of the right of perpetual use of the former owner prohibits legally evicting him from the apartment, nothing more. In this case, the rights of the owner remain with the recipient.

Therefore, this agreement is increasingly being resorted to by elderly citizens who want to make a gift to their relatives, but retain the opportunity to live in the donated apartment for the rest of their lives.

Rights and obligations of the donor

It is necessary! The donor must be registered on the living space specified in the donation agreement. According to the law, then no one has the right to write him out, especially from the apartment assigned to the donor. The contract must also indicate the fact that the donor has the right to live in the specified apartment indefinitely.

This will be more convincing than simply the right to use real estate, since the use of living space does not specify the authority to live in it.

Rights, obligations and recommendations to the donor:

1. The RF IC clearly formulates the debt obligations of a capable relative to support disabled relatives. And not only through the closest family line: mother, father, grandfather, grandmother, but also uncle and aunt.
2. According to the advice of legal experts, you can do this: not present the entire apartment to your relatives, but reserve a share for yourself to live in for the rest of your life, with its subsequent transfer as a gift at the will of the property owner.
3. In any case, according to the law, the donor has the right to live in the donated apartment for life, if he has no other living space.
4. If the donor, after presenting the living space under the contract, intends to live in the apartment more than once, to which he has a direct right, then this must be urgently indicated in a written agreement. The gift agreement specifies the number of cohabitants, the time and mode of their residence.
5. A citizen who donates living space has the right to live on it free of charge, which also needs to be stated in the agreement.
6. There is also the concept of a gift as returnable and gratuitous, which is also prescribed in the agreement. In the first case, the recipient undertakes to pay sums of money for renting an apartment or to provide for the donor. Under a gratuitous gift, property is transferred with all rights and obligations free of charge.
7. The owner of real estate has the right to transfer it into the possession of the person paying the rent, who undertakes to pay the full amount to the donor.
8. The donor has the right to cancel the gift agreement without agreeing with the second counterparty, in case of non-compliance and violation of his rights by the donee to live in the living space specified in the agreement.

Of course, it is more correct to retain the ability to use and manage your property during your lifetime in accordance with documentation and legal issues.

Citizens who have these powers are able to refute and protect their ownership, including from the new owner - the recipient, if he has already become one according to the contract.

Rights and obligations of the donee

If the donor intends to continue to live in the apartment presented by him indefinitely, the powers of the donee must be respected by law.

The recipient of real estate as a gift must comply with all the rights of the donor who has been registered in the Unified State Register. He does not have the right to cancel the donor’s registration in the specified living space or prohibit him from living in this apartment in which he is registered.

That is, the powers of the donee are significantly limited in the event that he wishes to present, sell or lease residential property.

The donee enjoys the following powers and responsibilities when accepting housing under a donation agreement with the possibility of lifelong residence in it by the previous owner.

Rights of the donee when making a transaction:

1. Has the right to accept real estate as a gift. If significant violations of the clauses of the agreement occur on the part of the donor, the recipient has the right to demand the property presented to him, since he has all the powers of the owner over it in accordance with Articles 396 and 398 of the Civil Code of the Russian Federation.
2. The right to refuse the object of donation without giving reasons in accordance with paragraph 2 of Article 573 of the Civil Code of the Russian Federation.
3. Has the right to dispose of real estate at his own discretion in accordance with Article No. 209 of the Civil Code of the Russian Federation.

However, there are certain restrictions, since the recipient of real estate under the gift agreement does not have the right to violate the donor’s rights to live indefinitely in the given living space.

How to correctly determine the order of use

The procedure for using living space can be delimited by several principles in relation to both parties to the gift agreement with the right of lifelong residence in the apartment of the former owner specified in the agreement.

The main factors when determining the order of use:

• the donor can only have a share in the apartment (room) until his death;
• a citizen who donates housing possesses it in full, with the exception of the presented share (room), and the rights to the entire apartment are transferred to the donee after his death;
• both counterparties to the agreement have the right to transfer the use of real estate to a third party, for example, a son/grandson after the death of the donor, this must certainly be indicated in the agreement;
• upon the death of the donor, the living space is transferred into the possession of the donee without the right of his relatives to claim the real estate specified in the contract, in accordance with Article 292 of the Civil Code of the Russian Federation;
• when drawing up this agreement with the legal indefinite residence of the donor, by agreement of both counterparties, other persons may also have the right to use the apartment during the lifetime of the owner.

Both parties to the gift agreement stipulate among themselves the procedure for using the donated real estate. To avoid all sorts of mistakes, it is best to contact a qualified lawyer with this issue.

How to draw up a deed of gift?

The procedure for donating real estate with the condition of lifelong residence consists of the following stages:

1. Search for the recipient.
2. Discussion of the terms of the deal.
3. Inspection of the premises.
4. Conclusion of a gift agreement.
5. Drawing up an apartment acceptance certificate.
6. Registration of the new owner's property rights in Rosreestr. The right of lifelong residence does not need to be registered.

The transaction is voluntary. The recipient cannot be forced to perform it.

We talked more about where and how to draw up a deed of gift for an apartment in a separate article.

Preparation of contract

According to the rules of Article 574 of the Civil Code of the Russian Federation, a gift agreement can also be concluded orally. But in relation to real estate, it would be correct to formalize the contract in writing. Part 3 of Article 574 of the Civil Code of the Russian Federation states that a contract of donation of real estate is subject to state registration. That is, you will need to submit a document. Therefore, the transaction must be completed in writing.

The text of the contract must indicate the following:

1. Date and place of signing.
2. Information about the parties to the transaction - last name, first name, patronymic of each, passport details.
3. Subject of the agreement. The address and total area of ​​the apartment are indicated here. If only part of the property is donated, then it is indicated how the room is transferred to another person.
4. A link to a document confirming the ownership of the former owner, for example, the date and number of the purchase and sale agreement.
5. Other conditions.
   Here it is necessary to indicate that the former owner has the right to live in the apartment for life. Moreover, this right is retained even if the new owner sells, bequeaths or donates the housing to third parties. The wording of this condition may be as follows: “The donor has the right to live in the apartment for life, have free access to the premises and use all utilities. This right is not lost when real estate is transferred to third parties.”
6. Rights, obligations and responsibilities of the parties.
7. Dispute resolution procedure. Any disagreements must be resolved through negotiations or in court.
8. Details and signatures.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

8 (800) 302-76-94

Important! The agreement is drawn up in three copies, one for each of the participants and Rosreestr.

Documents and design algorithm

Registration of a deed of gift with an encumbrance consists in following sequential actions - an algorithm.

First, the contract itself is drawn up, then it is advisable to contact a notary (mandatory in the case of donating a share in an apartment with shared ownership). After which, all documentation for the transaction must be checked for accuracy and correctness and registered in Rosreestr as a transfer of ownership from one party to another.

Registration in Rosreestr will take from three to five days. And after three weeks, a certificate from the Unified State Register is issued.

The notary will require the following documents to draw up a deed of gift for an apartment with the right of indefinite residence for the owner who presents it:

1. Civil passports of both parties.
2. If the deed of gift is drawn up for a person under 18 years of age, then his birth certificate.
3. Documentation for the apartment, proving the owner’s rights to the property (certificate of state registration).
4. A document indicating the presence of registered people in the specified living space (extract from the house register).
5. Cadastral passport and additional technical documents for real estate, which reflect the price and layout of the living space.
6. Certificate from the Federal Tax Service regarding the absence of tax arrears.
7. A certificate from the Unified State Register or Housing Management, proving state registration of the owner of the living space.
8. Consent of the spouse to make a gift transaction, which must be provided in handwritten form.
9. If the act of donation occurs with the participation of persons under 18 years of age, then written permission will be required from the state executive authorities responsible for them at the moment.

The deed of gift is drawn up in the presence of both parties. If it is not possible for one of them or both of them to be present at the same time, the transaction is concluded with the assistance of their attorneys under notarized powers of attorney.

Sample deed of gift with encumbrance

To draw up a gift agreement with an encumbrance, you must choose from three possible versions of this agreement: a standard gift deed, with a perpetual annuity, and maintenance with a dependent.

A generally accepted deed of gift with an encumbrance includes the following main points:

1. Name, contract number.
2. City/town where the deed of gift is registered.
3. Indication of information about the participants, who is the donor and who is the recipient.
4. Coordinates of the parties and their personal data.
5. Circumstances when committing an act of donation, referring to the legislation of the Civil Code of the Russian Federation.
6. Sometimes the time for which the contract is concluded is specified.
7. Rights and obligations of the parties;
8. It is required to specify when all ownership rights are transferred to the donee and under what conditions.
9. Reasons for canceling a deed of gift.
10. Standards for resolving disputes.
11. Unforeseen cases.
12. Other contractual terms agreed upon by the parties.
13. The sight of the parties is their signatures.

The gift agreement with the right of lifelong residence of the donor is in the presented file, you can download it right now and print the form.

Agreement for the donation of an apartment with the right of lifelong residence of the donor.

A deed of gift for an apartment in relation to the rights of the owner can be drawn up in the form of a perpetual rent agreement.

With such contractual obligations, the donee contributes a certain amount of money to the person who presented him with the apartment, either every month or according to a schedule.

This type of agreement must also be certified by a notary office.

Procedure for using real estate

The right of lifelong residence implies the former owner’s ability to remain in the apartment permanently. In addition, he can use not only a separate room, but also common areas - kitchen, bathroom, bathroom, hallway. This applies to household needs. This right only implies the use of the premises. The former owner will not be able to dispose of the property.

Reference! Donating an apartment does not relieve the tenant of his responsibilities. For example, he will have to bear the cost of paying for utilities.

Taxation of the contract

Taxation of real estate received under a gift agreement is regulated in accordance with Chapter. 23 Tax Code of the Russian Federation. Property donated to close relatives is not subject to taxes (in accordance with clause 18.1 of Article 217 of the Tax Code of the Russian Federation). In the circle of close relatives they admit:

• spouses who are officially married;
• parents (adoptive parents);
• children (including adopted children);
• grandparents and grandchildren;
• brothers and sisters (including full and half siblings who have one common parent).

Tax payment in connection with the donated property is made after registration and registration of ownership. If the recipient-relative sells the apartment within the next three years after receipt, he must pay 13% of the cadastral value.

For other citizens, the tax rate when receiving an apartment under a gift agreement is 13% of the appraised value of the apartment at the time of drawing up the deed of gift. There are no preferential categories in this case (this means that disabled people, pensioners, low-income citizens and other recipients of benefits pay 13% of the cadastral value of the property):

1. These rules apply to resident citizens of the Russian Federation who have a general civil passport of the Russian Federation and are at their place of stay or residence in Russia for more than six months annually (more precisely, over 183 days).
2. Non-residents pay tax on gifted property at a rate of 30% of the assessed value of the property.

The new owner of the apartment is obliged to send to the territorial bodies of the Federal Tax Service a declaration of income received in form 3-NDFL and other documents (identity card, gift agreement, other documents) by April 30 of the next year after the deed of gift is issued. Tax on donated property must be paid by July 15 of the following year after signing and registering the agreement.

If the deadlines for filing a declaration and paying the tax are violated, a fine may be imposed: if the 3-NDFL declaration is submitted untimely - 5% of the tax amount for each month of delay, but in total no more than 30%. A penalty for late payment is added to the amount of the fine if the payment of tax is delayed in the amount of 1/300 of the refinancing rate (discount rate) of the Central Bank of the Russian Federation daily.

Thus, the transfer of real estate through a gift agreement with the right of permanent residence is an effective, rational way that simplifies the procedure for entering into an inheritance, especially in cases of closely related relationships. In this case, the donor receives the right to permanent residence in the apartment and, in the event of failure to fulfill obligations by the recipient, can challenge and terminate the concluded agreement.

The right to use residential premises provided by testamentary refusal

I.B. ZHIVIKHINA

Zhivikhina Irina Borisovna, Professor of the Department of Civil Law and Process of the Academy of Law and Management of the Federal Penitentiary Service, Doctor of Law.

Along with the right of ownership, the right of lifelong use on the basis of a gift agreement or lifelong annuity (lifetime maintenance with dependency) and the right to use residential premises by a family member of the owner of the residential premises, real rights to residential premises also include the right to use residential premises provided by testamentary refusal.

According to paragraph 1 of Art. 1137 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the testator in a will has the right to impose on one or more heirs by will or by law the fulfillment at the expense of the inheritance of any obligation of a property nature in favor of one or more persons (legatees) who acquire the right to demand fulfillment of this obligation (testamentary refusal) <1>.

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<1> For details, see: Belitskaya N.A. Testamentary refusal as a special property testamentary disposition // Inheritance law. 2008. N 3. P. 17 - 20; Palshkova A.M. Testamentary refusal and relations from it: concept, essence and content // Inheritance law. 2009. N 4. P. 7 - 19.

The subject of a testamentary refusal may be the transfer to the legatee of ownership, possession under another property right or for use of a thing included in the inheritance, the transfer to the legatee of a property right included in the inheritance, the acquisition for the legatee and the transfer of other property to him, the performance of certain work for him or providing him with a certain service or making periodic payments in favor of the legatee, etc. (Clause 2 of Article 1137 of the Civil Code of the Russian Federation).

Often the subject of a testamentary refusal is the obligation of the heir to whom a residential house, apartment or other residential premises is transferred to provide the person specified in the will for the period of his life or for another period of time with the right to use this premises or a certain part of it. The legislator gives this property right to use residential premises or part of it a sign of succession, indicating that upon subsequent transfer of ownership of the property that was part of the inheritance to another person, the right to use this property granted by testamentary refusal remains in force (paragraph 3 p. 2, Article 1137 of the Civil Code of the Russian Federation), which allows us to speak about the proprietary nature of the specified right <2>.

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<2> See: Akhmetyanova Z.A. On the property right to use residential premises by virtue of a testamentary refusal // Inheritance law. 2007. N 1. P. 21 - 24.

The civil legal regulation of testamentary refusal in section five “Inheritance Law” of part three of the Civil Code of the Russian Federation allows us to point out the following fundamental provisions:

1) the subjects of execution of a testamentary refusal to grant the right to use residential premises can be both heirs by will and heirs by law, including those acquiring escheated residential premises <3> (municipalities and federal cities of Moscow or St. Petersburg in relation to residential premises located on their territory, as well as the Russian Federation in relation to residential premises located abroad (clause 1 of Article 1151 of the Civil Code of the Russian Federation));

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<3> For details, see: Blinkov O.E. New legal regime of escheatable residential premises in Russian inheritance law // Lawyer. 2008. N 2. P. 22 - 24.

2) a testamentary refusal to grant the right to use residential premises must be established in the will, and the contents of the will may be limited to such a testamentary refusal (clause 1 of Article 1137 of the Civil Code of the Russian Federation);

3) the object of a testamentary refusal to grant the right to use residential premises is usually a residential premises (a residential building, an apartment or other residential premises) included in the inheritance, or a part thereof, however, it is not excluded that the heirs are obliged to purchase residential premises at the expense of the inheritance and grant the rights to use it to the legatee (clauses 1, 2 of Article 1137 of the Civil Code of the Russian Federation);

4) the right to receive a legacy is valid for three years from the date of opening of the inheritance and does not pass to other persons, however, another legatee may be assigned to the legatee in the will in case the legatee appointed in the will dies before the opening of the inheritance or at the same time as the testator, or refuses to accept a testamentary refusal or does not exercise his right to receive a testamentary refusal, or loses the right to receive a testamentary refusal in accordance with the rules of clause 5 of Art. 1117 of the Civil Code of the Russian Federation (clause 4 of Article 1137 of the Civil Code of the Russian Federation);

5) the period for which the right to use residential premises is granted can be any, including lifelong, i.e. throughout the life of the legatee (paragraph 3, paragraph 2, article 1137 of the Civil Code of the Russian Federation);

6) the heir, upon whom the testator has entrusted a testamentary refusal to grant the right to use residential premises, must fulfill it within the limits of the value of the inheritance passed to him minus the debts of the testator attributable to him; if the heir to whom the testamentary refusal is entrusted has the right to an obligatory share in the inheritance, his obligation to fulfill the refusal is limited to the value of the inheritance transferred to him, which exceeds the size of his obligatory share (clause 1 of Article 1138 of the Civil Code of the Russian Federation). If a testamentary refusal is assigned to several heirs, such refusal burdens the right of each of them to inheritance in proportion to his share in the inheritance insofar as the will does not provide otherwise (clause 2 of Article 1138 of the Civil Code of the Russian Federation) <4>;

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<4> See: Blinkov O.E., Butova E.A. Common property of heirs: current problems of theory and practice // Inheritance law. 2015. N 1. P. 21 - 24.

7) if the legatee died before the opening of the inheritance or at the same time as the testator, or refused to receive a testamentary refusal (Article 1160 of the Civil Code of the Russian Federation) or did not exercise his right to receive a testamentary refusal within three years from the date of opening of the inheritance, or lost the right to receive a testamentary refusal refusal in accordance with the rules of Art. 1117 of the Civil Code of the Russian Federation, an heir obligated to execute a testamentary refusal is released from this obligation, except for the case when another legatee is assigned to the legatee (clause 1 of Article 1138 of the Civil Code of the Russian Federation);

a citizen living in a residential premises provided by testamentary refusal has the right to demand state registration of the right to use the residential premises arising from the testamentary refusal (Clause 3, Article 33 of the Housing Code of the Russian Federation (hereinafter - the Housing Code of the Russian Federation)).

The legislative formula for the right to use residential premises provided by testamentary refusal is quite simple: the legatee has the right to use the residential premises or a certain part thereof during his life or another period specified in the will. A citizen who, by testamentary refusal, has been granted the right to use residential premises for the period specified in the relevant will, uses this residential premises on an equal basis with the owner of this residential premises. Upon expiration of the period of use of the residential premises established by the testamentary refusal, the right to use it by the corresponding citizen is terminated, except in cases where the right to use this residential premises by the corresponding citizen arose on another legal basis (clause 1 of Article 33 of the Housing Code of the Russian Federation).

Citizens with active legal capacity and limited legal capacity by the court (as amended by Federal Law No. 49-FZ of April 24, 2008) living in residential premises provided by testamentary refusal are jointly and severally liable with the owner of such residential premises for the obligations arising from the use of such residential premises , unless otherwise provided by agreement between the specified owner and citizens (clause 2 of article 33 of the Housing Code of the Russian Federation).

A citizen using residential premises provided by testamentary refusal may demand elimination of violations of his rights to residential premises from any persons, including the owner of the premises (Article 305 of the Civil Code of the Russian Federation), which allows them to reclaim residential premises from someone else’s illegal possession (Article 301 of the Civil Code RF), to demand the elimination of any violations of their rights, even if these violations were not associated with deprivation of possession (Article 304 of the Civil Code of the Russian Federation). In turn, the legatee must not create obstacles in the use of residential premises by other persons who have the right to do so, including the owner, who, if otherwise, have the right to seek protection of violated rights in court. For example, the Judicial Collegium for Civil Cases of the Altai Regional Court considered the case on the appeal of the defendant Z. against the decision of the Biysk City Court of the Altai Territory dated July 10, 2013 on the claim of B. to Z. for the elimination of obstacles in the use of residential premises and occupancy. The panel of judges found that B. filed a lawsuit against Z. to remove obstacles to the use of residential premises and occupancy.

In support of the requirements, he indicated that he is the owner of the apartment on the basis of a certificate of the right to inheritance under a will. This apartment is burdened with a testamentary refusal in the form of the right of the defendant Z. to live in it for life, however, the defendant, abusing his right, prevents the plaintiff from moving in and living in the apartment from the date of death of the testator B.K.Sh., who is the plaintiff’s father, and the defendant was the actual wife of the deceased. The plaintiff does not have the keys to the disputed apartment, the defendant does not open the door. Since it is not possible to settle the dispute out of court, the plaintiff filed a claim in court.

The plaintiff asked to impose on the defendant the obligation to remove obstacles to the use of the disputed apartment, to hand over the keys to the apartment to him and not to create obstacles to the use of the residential premises, to move him into the apartment, and to recover from the defendant the costs of paying the state fee.

By the decision of the Biysk City Court of the Altai Territory dated July 10, 2013, B.’s claim was partially satisfied. B. moved into the apartment. Z. is entrusted with the obligation not to interfere with B.’s use of the apartment, and to provide B. with the keys to the specified apartment for the production of a duplicate. At the meeting the rest of the claim denied. The costs of paying the state duty were recovered from Z. in favor of B. as a refund.

In the appeal, defendant Z. asked the court's decision to be quashed and a new decision to be made to reject the claim. Z. referred to the lack of evidence that she interfered with the plaintiff’s use of the disputed apartment. The acts presented by the plaintiff do not reliably confirm these circumstances, since they were drawn up by the plaintiff’s side and were not properly certified; the court unreasonably rejected her explanations in this part. Z. also referred to hostile relations with the plaintiff, who did not intend to move into the disputed apartment and live in it, led an immoral lifestyle, and repeatedly expressed threats against her, which was confirmed by the refusal material. In her appeal, Z. drew attention to the fact that she is a pensioner, a disabled person of group II, and therefore it is not possible to live together with the plaintiff in a one-room apartment. When filing a claim, the plaintiff abused his rights, wanted to put psychological pressure on her, evict her and live alone.

Having checked the case materials, the legality and validity of the court decision in accordance with Part 1 of Art. 327.1 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code of the Russian Federation), within the limits of the arguments of the appeal, the judicial panel did not find any grounds for satisfying it.

In accordance with paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession (Article 304 of the Civil Code of the Russian Federation).

By virtue of Art. 288 of the Civil Code of the Russian Federation, the owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose. Residential premises are intended for the residence of citizens. A citizen who owns a residential property can use it for personal residence and for the residence of his family members.

According to paragraph 1 of Art. 30 of the Housing Code of the Russian Federation, the owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose and the limits of its use, which are established by the Housing Code of the Russian Federation.

From the case materials it followed that B. is the owner of the apartment. Z. has the right to live in this apartment for life on the basis of the will of the testator B.K.Sh. The plaintiff and defendant are registered at their place of residence in the disputed apartment. In fact, Z lives in the apartment.

Satisfying the plaintiff’s demands to eliminate obstacles to the use of residential premises and moving in, the court of first instance assessed the evidence presented in totality and came to a reasonable conclusion that on the part of the defendant there were obstacles to the plaintiff moving in and living in the disputed apartment.

The panel of judges agreed with these conclusions, which were confirmed by the case materials and do not contradict current legislation. At the same time, the judicial panel took into account that when considering the case, the defendant’s side did not recognize the claims, the parties voluntarily could not reach an agreement to resolve the dispute, as evidenced by Z.’s appeal to law enforcement agencies with a statement regarding threats from the plaintiff.

The reference in the complaint to the failure to prove that the defendant had interfered with the plaintiff’s use of the disputed apartment was untenable, as it was refuted by the case materials, including Z.’s response to the statement of claim and the explanations of her representative in the trial court that hostile relations had developed between the parties , therefore Z. objects to the plaintiff’s moving into the disputed residential premises; in addition, these circumstances are presented in the appeal itself.

The arguments of the complaint that Z. is a pensioner, a disabled person of group II, and therefore living together with the plaintiff in a one-room apartment is not possible, the plaintiff did not intend to move into the disputed apartment and live in it, abuses his rights, the judicial panel did not accept attention, since these circumstances cannot influence the rights of the owner of the disputed residential premises <5>.

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<5> See: Appeal ruling of the judicial panel for civil cases of the Altai Regional Court dated October 1, 2013 in case No. 33-7986/2013 // ATP “ConsultantPlus”.

According to paragraph 2 of Art. 35 of the Housing Code of the Russian Federation, if a citizen using residential premises on the basis of a testamentary refusal uses this residential premises for other purposes, systematically violates the rights and legitimate interests of neighbors or mismanages the residential premises, allowing them to be destroyed, the owner of the residential premises has the right to warn this citizen about the need to eliminate violations. If these violations entail the destruction of the residential premises, the owner of the residential premises also has the right to assign this citizen a reasonable period of time to carry out repairs to the residential premises. If this citizen, after warning the owner of the residential premises, continues to violate the rights and legitimate interests of neighbors, uses the residential premises for other purposes or fails to carry out the necessary repairs without good reason, this citizen, at the request of the owner of the residential premises, is subject to eviction based on a court decision <6>.

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<6> For details, see: Rakhvalova M.N. The right to use residential premises on the basis of a testamentary refusal // Family and housing law. 2006. N 2. P. 2 - 4; Kovaleva E.V. Features of the right to use residential premises granted by testamentary refusal and the grounds for its occurrence // Notary. 2007. N 2. P. 24 - 29.

If the legatee's right to use residential premises is terminated (expiration of the period specified in the will), this citizen is obliged to vacate the corresponding residential premises (stop using it), but if within the period established by the owner of the relevant residential premises, he does not vacate the specified residential premises, the legatee is subject to eviction at the request of the owner on the basis of a court decision (clause 1 of article 35 of the Housing Code of the Russian Federation).

Literature

1. Akhmetyanova Z.A. On the property right to use residential premises by virtue of a testamentary refusal // Inheritance law. 2007. N 1. P. 21 - 24.

2. Belitskaya N.A. Testamentary refusal as a special property testamentary disposition // Inheritance law. 2008. N 3. P. 17 - 20.

3. Blinkov O.E. New legal regime of escheatable residential premises in Russian inheritance law // Lawyer. 2008. N 2. P. 22 - 24.

4. Blinkov O.E., Butova E.A. Common property of heirs: current problems of theory and practice // Inheritance law. 2015. N 1. P. 21 - 24.

5. Kovaleva E.V. Features of the right to use residential premises granted by testamentary refusal and the grounds for its occurrence // Notary. 2007. N 2. P. 24 - 29.

6. Palshkova A.M. Testamentary refusal and relations from it: concept, essence and content // Inheritance law. 2009. N 4. P. 7 - 19.

7. Rakhvalova M.N. The right to use residential premises on the basis of a testamentary refusal // Family and housing law. 2006. N 2. P. 2 - 4.

Source: INHERITANCE LAW magazine

Advantages and disadvantages of the deal

The legislative norms of the Russian Federation do not require state registration of such restrictions on the right of ownership and do not provide for separate registration of the terms of the contract. Therefore, the notice of the right to lifelong residence in an apartment does not appear in the EGRN (Unified State Register of Real Estate) extract.

In this regard, as a guarantee to protect the interests of the donor, the donation agreement with the right of lifelong residence includes a statement that the donor has the right to register indefinitely at his place of permanent residence. Moreover, this situation does not change even after the apartment is transferred to new owners (after sale or donation).

When making a transaction involving the acquisition of residential premises, it is necessary to take into account documents (certificates) that list the residents (registered at the place of residence) who have the right to use this premises after its sale and change of owners (Article 558 of the Civil Code of the Russian Federation).

This means that when the owners of an apartment change, the donor retains the right of lifelong residence, since it is considered a contractual encumbrance on this apartment. In the event that the recipient of the apartment neglects his obligation to provide the donor with the right to continue living in the apartment, the donor may appeal to the courts and, after a decision has been made, terminate the contract (Article 450 of the Civil Code of the Russian Federation).

Each party is obliged to comply with the conditions specified in the contract, otherwise the contract may be challenged in court and the property will be returned to the previous owner. Further, after concluding an agreement, the donor does not have the right to impose prohibitions and restrictions on the actions of the new owner of the apartment aimed at completing property transactions, or otherwise interfere with the disposal of the accepted property (Article 209 of the Civil Code of the Russian Federation).

Donor's benefit

In the process of fulfilling the terms of the gift agreement, each party has a set of rights and obligations arising in relation to each other. Basic rights of the donor:

• has the full right to lifelong residence in the donated apartment;
• exercises the right of residence of third parties named in the contract for a period limited to a specific period or on an indefinite basis;
• the right to continue registration at the permanent place of residence with the migration registration authorities of citizens;
• the right to make changes and amendments to the gift agreement with mutual consent of the donee;
• the right to demand cancellation of the deed of gift and termination of the contract if the recipient fails to comply with the terms of its fulfillment.

Responsibilities of the donor:

• must transfer the property being donated;
• inform about all the reasons and encumbrances that may significantly affect the transaction;
• comply with the rules for using the premises provided for in the donation agreement;
• do not prohibit the recipient from performing property actions that are possible after receiving the donated apartment.

Thus, the beneficial aspects for the donor are obvious: he retains the indefinite right to live in the apartment without making payment, since all costs of maintaining the housing and utilities are borne by the new owner. The donor of the apartment gets the opportunity to live in the apartment if financial difficulties arise in the future.

Disadvantages that arise when drawing up a donation agreement for an apartment: the donor does not receive any property compensation in return and does not have the right to demand financial assistance or proper care for health reasons. It is very difficult to change the terms of a gift or cancel a contract: only by agreement with the recipient or by court decision. Existing judicial practice shows that such appeals can lead to the recognition of the contract as invalid.

Important! Oral agreements between the donor and recipient of the gift have no legal force and cannot be the basis for further claims; all preconditions must be included in a written agreement.

Benefit for the donee

The rights of the recipient also arise as a result of recognition of the gift agreement:

• the right to accept donated property free of charge;
• may, by agreement of the parties, make changes to the agreement in writing;
• the right of the donee to make any property transactions with donated housing (Article 396, Article 398, Article 573 of the Civil Code of the Russian Federation).

The direct responsibilities of the recipient are to preserve the right of the donor and third parties provided for in the agreement to be freely present in the given residential premises.

The main advantages that a deed of gift for an apartment with lifelong residence of the donor offers: receiving real estate for free, the possibility of further disposal (donation, sale, rental). Termination of property disputes between relatives during the life of the donor or in the process of registering an inheritance. In the event of a divorce, the donated property is not divided between the spouses, so there is no need to fear material loss.

Disadvantages for the recipient: the residence of the donor complicates the ability to dispose of the property received. If necessary, it is very difficult to sell an apartment with such an encumbrance at the average market price. When the donor stays free of charge, the recipient is obliged to bear all current costs of maintaining and maintaining the housing and to carry out routine repairs.

Important! The owner of an apartment can give it to a minor, in which case the agreement is drawn up with the participation of legal representatives or guardians.

Rights and obligations of the parties

As part of such an agreement, the donor transfers his rights to real estate to another person. The transfer must be free of charge. That is, the former owner does not receive any material compensation. But he retains the right to use the premises.

In turn, the recipient accepts the property and receives the right to dispose of it. But at the same time, he must ensure that the former owner can live in the premises.

In addition, the new owner is obliged to provide the resident with unhindered access to the apartment. That is, the former owner should be able to come and leave the apartment at any time convenient for him. Otherwise, there will be a breach of contractual obligations, which may lead to the cancellation of the transaction.

The recipient may subsequently even sell the apartment, but the former owner will still retain his right to reside. In fact, a transaction of this nature establishes an encumbrance on the apartment.

Judicial practice, examples

The presence of such an encumbrance in a gift agreement is considered completely legal in judicial practice, which corresponds to paragraph 3 of Article 308 of the Civil Code of the Russian Federation.

The fact is that legal liability does not establish duties for citizens who do not participate in it, except for those circumstances prescribed in legislation and other regulatory documents or contracts in which such agreements of the parties are specified.

And also, if liability is indicated not exclusively in relation to both parties, but also for other persons to whom any residential property will be transferred.

An example of this is the Resolution of the Perevolotsk District Court of the Orenburg Region. dated September 15, 2015 in case No. 2-788/2015.

With the termination of ownership of property, when it is transferred to another person, it does not affect the donor’s right to live in such living space in compliance with all his subsequent rights (Resolution of the Zheleznodorozhny District Court of the city of Voronezh dated September 21, 2015 in case No. 2-1730/2015).

It should be taken into account that legal proceedings are not always one-sided in their decisions.

All this is due to the fact that the laws of the Russian Federation lack certain standards that would ensure compliance with all rights by the new owners who acquired the property in relation to the donor of real estate.

Summary

A deed of gift for an apartment with lifelong residence of the donor is a regular gift agreement that specifies a specific condition. The Civil Code of the Russian Federation, as of 2021, allows this point and confirms its legality.

For both the donor and the recipient, the transaction has its pros and cons. In addition to the right to live for life and free of charge in the territory of the donated living space, the donor cannot demand any material rewards or require personal care in return for the gift. But, if he is threatened with eviction, the donor has the right to repossess the property based on failure to comply with a clause in the life agreement.

It is possible to secure a transaction or challenge it in court if the agreement was correctly drawn up, noted in Rosreestr and supplemented with all the necessary documents (including those that require notarization).

Reasons for refusal and solutions

The ban on entering into a transaction of this nature is established by Article 575 of the Civil Code of the Russian Federation. You cannot donate property in the following cases:

• on behalf of minors and incompetents;
• employees of educational, medical institutions, organizations providing social services, including for orphans and children without parental care, citizens receiving treatment, maintenance or upbringing there, spouses and relatives of such persons;
• persons holding state and municipal positions;
• in relations between commercial organizations.

The transaction will be considered void if the contract states that the donor receives material remuneration or a service. To overcome obstacles it is necessary to eliminate them. For example, recognizing a person as legally competent through a court.