The nuances of drawing up a rent agreement for an apartment between relatives

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A rent agreement for an apartment concluded between relatives is one of the alternatives to a deed of gift or a purchase and sale agreement. Such a transaction ensures the rights of the former owner to live in the apartment even after the actual transfer of ownership; in addition, he receives a stable monthly income in the form of rental payments.

Basic information

One of the parties (the rent recipient) transfers the rights to the property to the other party (the rent payer), subject to the fulfillment of certain requirements. After concluding the agreement, the rent payer will accept the obligation to transfer the agreed amount of money to the recipient, or provide him with another way - pay for housing and communal services, purchase food, help with housework, prepare food, etc.

The annuity agreement can be drawn up in 3 options:

Permanent annuity agreement. In this case, the rentee has the opportunity to transfer his rights to third parties upon assignment of claims. At the request of the parties, it is also possible to provide the rentee with food, medicine and other things against rent payments.
Lifetime annuity agreement. The agreement is valid until the death of the annuitant. Rent payments can only be made in cash equivalent. Assignment of rights of claim is impossible.
Lifetime maintenance agreement with dependents. In this case, ownership of the property passes to the buyer immediately after registration of the rental agreement, but until the death of the annuitant, he is obliged to pay the rent and take care of it.

The main legal act regulating this type of transactions is the Civil Code of the Russian Federation:

Article 584. It describes the need for state registration of transactions.
Article 590. The characteristics of the annuity are specified and its minimum amount is determined.
Article 591. Describes the timing of rental payments.
Article 595. The obligations of the payer of the transaction are listed.
Article 592 Describes the rights of the payer.
Article 593. The rights of the annuitant are listed.
Article 601. Describes the features of signing a life annuity agreement with a dependent.

Differences from a real estate purchase and sale transaction

An annuity agreement differs from a monetary contract:

It must be certified by a notary. Otherwise, it is considered invalid. It is quite simple to register the DCT with Rosreestr.
Rent is distinguished by the nature of consideration. At the time of signing, the parties do not know for sure to what extent the terms of the transaction will be fulfilled. The creditor cannot know what amount he will receive in the form of rental payments; accordingly, one of the parties may receive consideration in a smaller amount in comparison with what it provided to the other participant.

Rights of the parties

Participants:

Lender (rentee). This participant in the transaction is the owner of the property and is ready to transfer it to another person in exchange for cash payments or maintenance.
Rent debtor. This is the buyer who, upon entering into the annuity agreement, assumes the maintenance obligation of the lender.

Participants in the transaction can be both individuals and legal entities.

Rights of the annuity recipient:

Receive payments on time and in full even in the event of loss of property that is the subject of the contract.
Buy out the rent if the need arises.
Demand rent payments from the debtor.

Payer rights:

The payer has the right to terminate the annuity agreement subject to the consent of the other party to the transaction.
The payer has the right to transfer ownership of the property received by him under the terms of the agreement to a third party without the consent of the creditor.

Required items

The amount of rent, the procedure for payments and their schedule.
Personal data of the parties to the transaction.
Detailed description of the subject of the transaction.
Responsibilities of participants.
Liability for failure to fulfill the terms of the agreement.
Date and signatures of participants.

Types of agreement

Rent is a sum of money or its equivalent in kind that is paid by one party to another for property.
This type of civil transactions is regulated by Article 583 of the Civil Code of the Russian Federation . According to it, rent is income that can be obtained without conducting economic activity. It can be obtained from land, real or movable property or capital.

The transfer of rights to an apartment in exchange for receiving a regular payment is formalized by a written agreement.

It is essentially similar to a real estate purchase and sale transaction, but has some differences:

The rent is paid not in one go, but in installments over the period specified in the contract.
The renter retains certain rights to the apartment, which is collateral for receiving payment.
The payer receives ownership.
Rent can be free or paid. Paid rent has its own characteristics:
In addition to regular payments, the new owner pays a fixed amount after the transaction is concluded.
The minimum payment amount is set at 1 minimum wage.
In the event of the destruction of the apartment, the payee bears responsibility.
The annuity redemption amount is calculated based on the total amount of payments during the year.
A gratuitous transaction allows for the possibility of termination by the rentee if the payer violates essential conditions.

In addition, it can be permanent or lifelong.

A permanent annuity has no expiration date. Recipients can only be individuals and non-profit organizations. Terminates by agreement of the parties. The payment can be paid in money, work, services, or the provision of property.

A type of annuity can be considered lifelong maintenance with dependency. Here, instead of payments, material support for the rent recipient : payment for utility services, purchase of food, medicine, organization of recreation and treatment.

Lifetime annuity terminates after the death of the owner of the apartment , and its recipients can only be an individual. Payments are made in cash.

A sample life rent agreement for an apartment can be downloaded here.

How to apply?

An agreement is drawn up, which must necessarily reflect information about the remuneration of the transaction, its conditions and the timing of the transfer of the subject of the agreement to the renter.
Visit to a notary and certification of the executed agreement. This is a mandatory action; without notarization, the document will be considered invalid.
Visit to the Rosreestr office and submit a package of documents for registration. You will first need to pay the state fee for registration actions.
Rosreestr employees will check the submitted documents within 14 days and make changes to the Unified State Register of Real Estate.
The lender will receive an extract from the Unified State Register of Real Estate with a note that an encumbrance has been placed on the property.
The encumbrance can be removed from the property only after the obligations of the parties are terminated, i.e. after the rent payer provides Rosreestr with a certificate of the death of the creditor. After this procedure, he becomes the full owner of the property.

Registration cost

The cost of the state fee for drawing up a rental agreement is 2,000 rubles. There is also an additional fee for notary services. Their cost is defined as 0.5% of the total transaction amount, but not less than 300 rubles and not more than 20 thousand rubles.

How to legally formalize a rental agreement for an apartment between close relatives?

Shared alienation is carried out with the help of a lawyer and his obligatory call to the house and registration on the spot. The following clauses are required in the contract:

Subjects of the transaction: the rent recipient, that is, the owner of the property and the rent payer, that is, the future owner, their full name, passport data, payment details. It is more reliable to carry it out through a bank, so that in the future it can be proven that payments were made;
The nature of the transaction is paid. You must enter the payment amount. According to the legislation of the Russian Federation, it must be at least two subsistence minimums. In the case of lifetime income, it is better to fix the total amount of the transaction, which should be equal to the value of the property. In a transaction with a dependent condition, not only monetary payments can be prescribed, but also a list of works and services that will have to be performed and provided;
Object of the transaction. The agreement must include the address of the property, number of floors, residential and general footage, and layout. The cadastral number of the property is indicated;
Cost conditions are specified;
The rights and obligations of the parties are formalized;
The following must be indicated: documents of title to the property, complete information about the subjects of the transaction, the presence or absence of collateral and encumbrances on the property, information about citizens living in the living space and having the right of ownership, an indication of the transfer of ownership;
Instructions in case of death or damage;
Amounts and dates of payments;
Availability of a transfer deed for the property.

This is important to know: Is a semi-detached house an apartment building?

And also, it is worth noting that the registration of the agreement requires the permission of the second spouse, and the guardianship authorities, if a minor is registered in the housing register.

An income agreement is considered valid if it:

Notarized;
Registered in Rosreestr.

Additional information: read the agreement for apartment renovation between individuals at the link:

How much does it cost to draw up a rental agreement for a share of an apartment with a notary?

The state fee for registration is 2,000 rubles, the cost of notary services depends on the city and region. You need to contact several offices, find out the cost of providing this service and choose the option that suits you.

Can relatives challenge the rent agreement for an apartment?

It is possible to challenge the agreement in the following cases:

In case of non-compliance with payments;
Failure to comply with the terms of the transaction, namely the performance of prescribed works and services - not in full, irregularly, of poor quality;
If at the conclusion of the agreement the rentee was incompetent and this will be provable.

Rental agreement for an apartment between relatives with lifelong residence

Such a deed is quite often concluded between relatives; it differs from donation in that:

The owner receives payments for living space in the form of rent;
The owner retains the right of residence until death.

This transaction must be notarized and is concluded according to the same rules as a simple rent agreement, only it is necessary to indicate the retention of the right of residence and the transfer of ownership only after death.

Apartment rent agreement between close relatives - taxes 2018

In the case, both participants receive material benefits and are tax payers. The recipient pays 13% personal income tax for rent, since it is income for him, and tax for income from paid transfer of property. If the apartment has been owned for up to 3 years and its value is up to 1 million rubles, you can claim a property deduction from the sale of the apartment. If more than 3 years, an exemption from paying taxes on the sale of an apartment is possible.

When registering the agreement in Rosreestr, the payer becomes the owner of the apartment and if the transfer was paid, he is exempt from personal income tax and can claim the right to receive a property deduction in connection with the purchase of housing. (Find out everything about receiving a tax deduction when buying an apartment at the link:)

Apartment rent agreement - reviews

According to reviews, this type of transaction has many pitfalls for both parties. With a lifetime income or dependency, it happens that the donor very quickly passes into another world.

In the case of a transaction with a dependent, it is necessary to collect evidence for the provision of services: receipts, checks from pharmacies, for food, clothing. It is better to arrange delivery through intermediary companies. The contract can be terminated if the services are dissatisfied, the quality of the provision is difficult to prove and the money spent in this case also cannot be returned. With a lifetime deal, the amount of payments must be calculated so that it is equal to the cost of housing.

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Grounds for termination

The transaction may be terminated if the following conditions occur:

Failure to comply with the terms of the agreement.
The renter fraudulently obtained the living space that is the subject of the transaction.
The owner of the apartment was incapacitated at the time of signing the rent agreement.
The agreement was signed under pressure and there were threats or violence.

All changes relating to property transactions must be recorded in Rosreestr.

Features of a lifelong residence agreement

Such an agreement assumes that the owner of the property lives in the property until the end of his life, so during this time the apartment cannot be sold, donated, or similar actions taken with it.

At the same time, the renter continues to pay funds to the owner of the property. Such a transaction must be certified by a notary.

What features need to be taken into account when drawing up a rental agreement? Expert tips in this video:

Who and how can challenge a document?

The annuitant has the right to file a claim in court to buy out the annuity, terminate the contract and receive compensation for moral damage. There are also often situations when, after concluding an agreement, the relatives of the rentee initiate legal proceedings to defend the rights to the apartment.

Regardless of the reason why the parties express a desire to terminate a previously concluded agreement, all circumstances must be documented.

Can a claim be made after the death of the renter?

An annuity contract is considered fulfilled upon the death of the creditor and the fulfillment of the terms of the transaction . However, even after this, it can be challenged in court by filing a lawsuit and providing evidence of a violation of the rights of the rentee.

Comparison with donation: which is better, easier and safer?

In order to assess which method of alienation of property is most convenient, you need to know the pros and cons of each method.

Pros of annuity:

The conditions for the alienation of property are very clearly described.
The deal is difficult to dispute.
The legality of the transaction is confirmed by a notary.
The tenant has no right to dispose of the apartment until the encumbrance is lifted.
The creditor has the right to live in the apartment for life.
The lender receives constant income in the form of rental payments.
Housing and communal services are paid for by the renter.
The buyer receives the property at a price that is much less than the market price.
No need to pay taxes on income.

Minuses:

Violation of the conditions, even in small things, can lead to the termination of the transaction without reimbursement of expenses incurred.
The lender may be faced with the unscrupulousness of the rent payer.
There is a risk that the rent payer will have an interest in the death of the home owner.
In order to remove the encumbrance from the living space and gain the right to dispose of the housing, the buyer will have to wait for an indefinite period.

Pros of donation:

When transferring an apartment to close relatives, no income tax is charged.
A minimum set of documents is required.
Low cost of processing and registering a transaction.
Citizens registered in the apartment retain the right to reside.
If the deal was concluded under pressure, it is easy to prove and cancel the deed of gift.

Minuses:

Cannot be terminated without good reason.
There is a risk of the transaction being cancelled, which makes the alienation method unreliable.

Both documents are subject to mandatory registration with Rosreestr. Thus, it is impossible to give a clear answer to the question of what is more profitable - each situation is individual.

Taxation of the transaction

Any citizen of the Russian Federation is obliged to pay personal income tax in the amount of 13% of the income received. This also applies to an apartment received as property. An exception is the situation when real estate is transferred between close relatives or family members. In this case, the rent payer is exempt from paying income tax.

The rentee also receives income in the form of rental payments and is also required to contribute 13% of the profit received.