Sale of an apartment under a gift agreement

Features of donating a share of a room

A room is part of a living space, and according to Art. 244 of the Civil Code of the Russian Federation is in common ownership, which, in turn, is of two types:

• Joint, where shares are not allocated, real estate belongs to everyone on equal rights;
• Shared - with the allocation of shares by agreement of the owners or in court.

An apartment or house can be divided between the owners in kind, i.e. by allocating them specific premises that belong to them. But this will require the installation of separate inputs and compliance with a number of technical requirements, which is not always possible or advisable. If this leads to disproportionate damage, it will not be possible to allocate a share in kind.

To allocate a share in kind, it is important that the premises meet the established requirements:

• Complete isolation and independence from the rest of the apartment;
• Conducting individual communications;
• Having your own entrance;
• Compliance with sanitary and building standards.

Important! By law, you can donate a share of a room allocated in kind, but you will have to reconstruct the property. It is easier to draw up a deed of gift for a share of ownership, where specific premises are assigned to the owners by verbal agreement.

It is worth considering that a gift implies a gratuitous transfer of ownership of property, therefore the donor has no right to demand money or reciprocal services from the recipient. The gift agreement itself (hereinafter referred to as the DD) is drawn up in writing and must be certified by a notary in this case.

In an ordinary apartment

If the apartment consists of one or more rooms, you can donate a share in the ownership. The consent of the other owners will not be required. The allocation of a share in kind is permitted if this does not lead to the destruction of real estate and disproportionate damage to the owners. In practice, this is problematic to implement.

Example:

The spouses each own ½ share of the right to the apartment. The woman decides to give half of her share to the child. After the transaction, the man retains ½, as before, and the donor’s share is divided in half with the minor.

In a communal apartment

In communal apartments, the number of owners is usually equal to the number of rooms. Often there is a need to register a share for one more person, and this can be done by drawing up a deed of gift.

According to the DD, the room will go to the donee, but he will be able to use the common premises in agreement with the other owners.

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

What is shared ownership

As you can guess from the name, shared ownership is closely related to the concept of common property, which is formed in relation to indivisible property that is owned by several persons at once or in relation to certain divisible property, if common ownership of this divisible property was established by agreement of persons or , according to the requirements of the legislator.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

At the same time, common joint property (for example, movable and immovable property acquired by spouses during marriage) is significantly different from shared property, which implies the entry of property into the ownership of several persons at once, determining the size of their shares (while in common joint property property can be registered in the name of one person).

Thus, when establishing shared ownership in 2021, each of the real owners receives a strictly defined part of the property, which depends on the size of the common property, the number of owners, etc. For example, the volume of each share can be established on the basis of the content of the agreement between the owners or on the basis legislative norms. In the event that the size of the shares has not been established, according to paragraph 1 of Article 245 of the Civil Code of the Russian Federation, it is recognized as equal!

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Room donation agreement form

A deed of gift for any piece of real estate is drawn up in writing, because the document will be required for subsequent state registration of the donee’s property rights. Notarization is usually not necessary, but when alienating shares, the signature of a notary is always required, and the parties sign in his presence.

In addition to the usual (real) contract, the donor has the right to draw up a consensual agreement - a contract of promise of gift, according to which the real estate can be transferred to himself only upon the occurrence of a specific date or event: the recipient receives a diploma, wedding, etc.

The conditions for the commencement of execution of the contract are determined by the donor, but the consent of the donee is also required: on the basis of Art. 573 of the Civil Code of the Russian Federation, he can refuse the transaction at any time before receiving the gift.

How to correctly draw up a donation agreement for a share of an apartment and avoid mistakes?

Is giving by proxy possible and what are the risks for the donor? Deal Features

How to give a share of a room in 2021 – features and nuances

In our country, most citizens have long been accustomed to cramped living conditions. Take, for example, the fact that many of us continue to live in communal apartments, which, in most cases, are the property of a group of owners. Usually, there are as many such owners as there are rooms in the apartment, but sometimes it becomes necessary for one of the rooms to have several owners at once. For example, such a desire may arise among citizens if it is necessary to allocate a share in the right to living space to a minor.

Executing a donation agreement for a share of a room in an apartment implies that the donor transfers free of charge or promises to make a free donation in the future (an agreement of promise of donation) of this property in favor of a person specified in the content of the agreement (the donee).

It is worth noting that when concluding a consensual deed of gift, the content must clearly state the will of the donor to transfer the object, the description of which must also be defined in the document. Otherwise, the gift agreement will be considered void and the appropriate consequences established for such cases by the legislator will be applied to it.

Oleg Ustinov

Blog author and practicing lawyer. Experience 7 years.

Remember that all gift transactions in which the gift is real estate or part thereof must be formalized exclusively in writing!

Also, it is worth considering the fact that the donor of a share of the room has the right to draw up a deed of gift for any person (relative or stranger) without receiving an agreement for this from other owners. The so-called pre-emption rule does not apply in this case.

In the event that the gift is real estate that was acquired by the donor during marriage, the agreement of the second spouse will be required for the legal completion of the transaction. Also, if the list of room owners includes children who have not yet turned 14 years old or incapacitated persons, donation on their behalf (by legal representatives) is contrary to the laws of the Russian Federation!

In addition, a donation agreement for a share of an apartment cannot be concluded in favor of :

• employees of medical, as well as social or educational institutions, citizens who are associated with these institutions (for example, they are hospital patients or university students) and their relatives;
• municipal, as well as civil servants, if the donation concerns their professional activities.

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Who can I give a share in the room to?

Donating a share in a room in a communal or ordinary apartment is allowed in favor of any citizens:

• Close relatives: brothers, parents, sisters, grandparents, children;
• To other people: friends, acquaintances, etc.;
• To third parties.

Note! If the share was purchased during marriage, you will need the notarized consent of the spouse (Article 35 of the RF IC). An exception is when the donor receives real estate as a gift or through another gratuitous transaction: in this case, the share is in sole ownership, the spouse has no right to claim it.

When should you not give?

According to Art. 575 of the Civil Code of the Russian Federation, property cannot be given to incapacitated citizens and children under 14 years of age. If the share belongs to a child over 14 years old, the transaction is possible only with the consent of the guardianship authorities. Getting it is problematic, because... As a result of the donation, the property status of the minor worsens.

There are certain categories of persons to whom donation is prohibited:

• Employees of social, educational, medical institutions, if the donor is there for support, treatment, training;
• Employees of state or municipal bodies, banks, if the transaction is related to their official position.

The exception is gifts worth up to 3,000 rubles: they can be given to everyone. But the value of the share is always higher than the specified amount, and the transaction will violate the legal prohibition.

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Donation of a share of a room in a communal apartment

Transactions with rooms located in communal apartments stand out in the real estate market. The law does not provide a legal definition of such an apartment, however, it regulates in sufficient detail the rights of the owners of rooms in such apartments (Article - Housing Code of the Russian Federation).

Donating a share of a room in a communal apartment is carried out according to the general rules discussed earlier, but taking into account some features:

1. Ownership of a room in a communal apartment is not shared in relation to the entire apartment. The donor has shared ownership in such an apartment only for common areas (kitchen, bathroom, etc.). In this regard, the deed of gift must not only indicate the individual characteristics of the transferred room (or its share), but also the characteristics of the entire communal apartment (address, area, number of rooms), and also indicate the size of the transferred share in the right to common property.
2. The alienated room (its share) must be owned .
3. When donating, there is no need to observe the preemptive right of purchase and notify the owners of other rooms about the upcoming transaction.

The transfer of ownership under such a transaction is also subject to the state registration procedure with the submission of a similar package of documents. The issue of taxation is resolved taking into account the provisions of Chapter. 23 Tax Code of the Russian Federation.

How to draw up a donation agreement for a share in a room: step-by-step instructions

The procedure begins with the agreement of the transaction with the donee. It is recommended to clarify the contents of the DD, when and in which notary office to sign it.

The step-by-step process looks like this:

1. Preparation of contract. This is done by the donor together with the recipient or without him, but you can seek help from a notary or lawyer. It is important to consider that technical work is always rated higher by notaries than by law firms.
2. Signing the deed of gift. This is done in the presence of a notary. Previously, he studies the documents, explains the consequences of the transaction, the rights and obligations of the parties.
3. Submission of documents for registration. The service is available from a notary for free from 2021, but for certain reasons citizens have the right to contact Rosreestr or the MFC in person. The donor and recipient submit documents together.

Registration of the new owner is carried out within 10 calendar days. Based on the results, the donee receives an extract from the Unified State Register of Real Estate, where he is indicated as the owner.

Important! If documents are submitted to the MFC, the period may be slightly increased, because ownership is re-registered in Rosreestr.

Contents of the gift agreement

The agreement must include complete information about the transaction so that it can be registered in Rosreestr:

• Address, area of ​​the premises in which the share is donated;
• Full name, passport details of the parties, dates of birth;
• Information on the gratuitous transfer of a share in ownership;
• Start date of contract execution;
• Signatures of the parties.

The DD is drawn up in four copies. One remains with the notary, one each with the donee and the donor, the fourth is transferred to the registrar.

Sample donation agreement

Sample agreement for the donation of a room in a communal apartment: alt: Agreement for the donation of a room in a communal apartment

Consultation on document preparation

Documentation

When contacting a notary, you will need the passports of the parties and other documents:

• Certificate or extract from the Unified State Register of Real Estate from the donor;
• Information about registered persons;
• Technical passport.

Legal advice: if you cannot sign the DD in person, issue a notarized power of attorney for the representative. It is provided along with other documents.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

State duty

To a notary on the basis of Art. 333.24 of the Tax Code of the Russian Federation, for certifying a transaction, a state duty is paid in the amount of 0.5% of the contract amount, but not more than 20,000 rubles.

After visiting the notary’s office, the parties submit an application for registration to Rosreestr, having previously paid a fee of 2,000 rubles. If the share is donated to a legal entity, the duty increases to 22,000 rubles.

How to register a donation agreement for a share of an apartment in 2021 in Rosreestr

Compared to previous years, today the procedure for registering a donated share of a room is not so complicated and does not require state registration of the agreement itself. And in order for the donee to become the full-fledged new owner of the part of the real estate donated to him, it is enough to undergo a simple re-registration of ownership.

To do this, the parties to the donation need to visit the Rosreestr authorities and hand over to the employees of this organization the deed of gift and the package of necessary documents established for the procedure by the legislator.

Lawyer's Note

It is worth noting that all of the above should be carried out by the donor and the donee only after the gift agreement has entered into force. It is especially important to follow the order when concluding a consensual agreement when the transfer of the object to the donee is planned in the future. Simply put, the donee can declare his ownership of the property donated to him (in this case, a share of the room) only after the date specified as the deadline for the fulfillment of the promise of donation in the agreement.

So, after submitting the application for state registration of the new owner’s property rights and after checking all the documents by a specialist of the registration authority, the parties will receive a corresponding receipt, which will indicate the date of receipt of the documents and the approximate date of issuance of new title documents for housing (as a rule, the procedure takes no more than 10 days from the moment the donee and donor submit the application).

Now, carefully study the list of necessary documents that are required to complete the procedure :

1. passports of the parties to the transaction;
2. deed of gift for a share of a room;
3. all technical documentation for the donated real estate;
4. a receipt for successful payment of the state duty, the amount of which today is 2,000 Russian rubles;
5. a certificate of all citizens (including minors) who are registered in the apartment;
6. title documents confirming the legality of the disposal of property by the donor himself.

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In addition, in certain cases, when donating part of a room, the parties may need additional documents, which, for example, include a power of attorney (on whose behalf one or the other party acts), documents on the encumbrance (if there is one), written consent of the legal representatives of the donor or donee, etc.

Is it possible to challenge a donation agreement for a share in a room?

It is difficult to challenge a deed of gift for real estate, but it is possible.

The grounds are presented in Art. 578 Civil Code of the Russian Federation:

• The donee is guilty of the death of the donor (disputed by the heirs);
• The recipient of the gift committed a crime against the health of the former owner or his relatives;
• The donor executed a DD within six months after the decision on his bankruptcy was made, and the share was purchased with funds from business activities.

If the contract provides for cancellation in the event of the death of the donee before the donor, the property returns to the latter.

There are additional grounds specified in Art. 166-179 Civil Code of the Russian Federation. The deed of gift is contested if the donor signed it under the influence of delusion or threats from the donee; if you do not understand the nature and consequences of the transaction; in case of donation on behalf of a minor without the consent of parents or guardianship authorities, alienation of property of children under 14 years of age; drawing up a DD by an incapacitated or partially capable citizen.

Procedure for registering a donation agreement for a room share

Currently, there is no need to undergo state registration of a donation agreement for part of a room, since it is only sufficient to formalize the transfer of ownership rights to a new person. After signing the gift agreement, the donor and the donee together must submit an application to Rosreestr to register the ownership rights of the new owner, but this can only be done after the agreement comes into force.

Additionally

This rule is important in cases where the transaction involves a promise to donate a share of the room after a certain period of time, because in this case you need to contact the registration authorities only after the moment of transfer of the gift specified in this agreement has arrived.

After submitting a joint application for registration, as well as after checking such an application by a representative of the registering authority, the parties to the gift agreement receive a receipt indicating the deadline for receiving the completed documents, which cannot exceed 10 days from the date of submission of the documents . The documents are as follows:

• gift agreement;
• applicants' passports;
• documents of the alienating person for the share of the room being transferred as a gift;
• technical documentation for real estate;
• certificate of persons registered in the apartment;
• receipt of payment of the duty, the amount of which is 2000 rubles.

When donating part of a room, other documents may be required : a power of attorney under which one or the other party acts; consent of the legal representatives of the donee or donor to accept a gift or transfer a gift if a party to the transaction is a minor aged 14 to 18 years; all documents about the encumbrance (if any).

Arbitrage practice

Courts rarely satisfy the claims of plaintiffs who want to invalidate gift agreements and return property.

But there are also examples of decisions in real cases where people managed to get their property returned:

• Decision No. 2-3152/2019 2-3152/2019~M-2060/2019 M-2060/2019 dated June 4, 2021 in case No. 2-3152/2019;
• Decision No. 2-1752/2019 dated May 8, 2021 in case No. 2-5218/2017;
• Decision No. 2-1472/2019 2-1472/2019(2-6977/2018;)~M-6930/2018 2-6977/2018 M-6930/2018 dated June 5, 2021 in case No. 2-1472/2019 .

Advice: it is better to hire an experienced lawyer in advance who will help you get the deed of gift cancelled. Without a competent legal justification, courts rarely satisfy demands.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Lawyer's answers to frequently asked questions

Who pays taxes when donating a room?

If the room is donated to a close relative, taxation does not apply (Article 217 of the Tax Code of the Russian Federation). The rest of the donees who are not relatives of the donors (spouses, sisters, brothers, parents, children) pay 13% of the cadastral value of the donated property.

Is it possible not to contact a notary when donating a share?

No, Rosreestr will not accept an agreement without notarization.

How much does it cost to draw up a deed of gift from notaries and lawyers?

Notaries usually charge from 5,000 to 20,000 rubles for technical work. depending on the region. For lawyers, such a service will cost 2,000-5,000 rubles.

There are two owners in the apartment, one is a minor child. Can the second person donate his share without the consent of the guardianship authorities?

Maybe guardianship permission won't be required.

Is it possible, instead of a purchase and sale agreement, to draw up a deed of gift for a room in a communal apartment, so as not to require the consent of the other owners?

In theory, this is possible, but according to the law, such an agreement can be declared invalid on the basis of Art. 170 Civil Code of the Russian Federation. The transaction is considered sham, i.e. committed to cover up another transaction.