Is it possible to return a donated apartment to the donor?

About the opportunity

Is it possible to return a donated apartment back to the donor? That is, does the deed of gift for an apartment have retroactive effect ?

It turns out that it is possible to return an apartment that is the subject of a gift, although it is not easy.

The rights of the recipient of the apartment are guaranteed by the following documents:

Part 1 of Article 573 of the Civil Code of the Russian Federation;
clause 3 art. 574 of the Civil Code of the Russian Federation;
Art. 578 SCRF;
Art. 450 GKRF

Legally, refusal to receive real estate as a gift refers to somewhat casuistic cases , but there is still an opportunity to return the apartment legally.

Find out what is best to formalize: donation, will or purchase and sale on our website.

Is it possible to return a donated apartment or share in an apartment back at the initiative of the donor?

In order to answer this question, it is necessary to refer to the provisions enshrined in the Civil Code of the Russian Federation. A gift agreement is a transaction and, therefore, it can be canceled just like any other agreement. Since a deed of gift is essentially a transaction with a unilateral expression of will, there are special circumstances for its cancellation. At the initiative of the donor, this can happen in the following cases:

If the donee commits any illegal actions against the donor, for example, an attempt on his life or health.
If, under a gift agreement, a house or apartment was transferred, and the donee treats the object of the gift in such a way as to allow its destruction or destruction.
If the gift was transferred, for example, on the initiative of the wife, but there was no consent of the husband.
If the contract included a clause stating that it is subject to cancellation after the death of the donor.

These are the main cases when the contract can be terminated at the initiative of the donor. After the contract has been terminated, the apartment or share in the apartment must be returned through the registration procedure.

Grounds and reasons

As for the donor, it is difficult for him to backtrack after a gift; the presence of certain circumstances and reasons is required.

Learn about the cases in which you can challenge a deed of gift for an apartment, as well as the conditions under which a gift transaction can be declared invalid from our articles.

In relation to the recipient, the law does not provide for the existence of grounds, reasons, conditions: the citizen receiving living space has the right not to explain the background of his decision (Article 573 of the Civil Code of the Russian Federation).

Moreover, the reasons for a citizen’s deep-seated impulse not to take ownership of housing cannot be clarified or explained.

However, at different stages of the process, failure can be realized according to different scenarios. If the agreement was in words, or when the deed of gift is not registered, then the donee can, without any problems or consequences, not take the gift, refuse, but only in the case when the gift has not yet been accepted. Otherwise, it turns out that the transaction took place and the contract was fulfilled.

Find out whether it is worth accepting as a gift an apartment with encumbrances, for example, with the right of lifelong residence of the donor, debts and registered people, as well as a mortgage.

Can the donee refuse the gift agreement after registration?

How to refuse a deed of gift after its registration

This procedure has already been discussed above. Refusal of a deed of gift after registration is possible by agreement of both parties or on the initiative of one of them in cases provided for by law.

The fundamental document is the renunciation of the gift. This document is in writing.

It must contain the following provisions:

Document's name.
An indication of the parties to the agreement.
An indication of a previously concluded agreement.
Description of the donated item.
Reasons for cancellation.
Other essential conditions.
Date of the agreement and signatures of the parties.

Refusal of a gift is subject to state registration and must be made in writing. This is due to the fact that it is necessary to comply with the form of the original agreement. Otherwise, the refusal will be considered invalid.

It must be taken into account that it is not the agreement itself that is registered, but the transfer of rights under it.

Statute of limitations

There is a separate question about how long it takes to give up real estate or a share in it. For this purpose, the Civil Code of the Russian Federation provides for the so-called limitation period. As a general rule, it is three years. In case of refusal of donated property, this period is reduced to 1 year.

After registration

If someone gave an apartment as a gift, how to return it after registration?

Can relatives challenge the deed of gift?

A deed of gift is an expression of the will of the property owner, drawn up in accordance with legal standards and having legal significance. Is a gift deed really uncontested? Similar questions arise for persons who claim the status of heir or recipient, but are bypassed by the will of the owner of the property.

Quite a lot of citizens prefer to draw up a deed of gift rather than bequeath property.

This position is justified by the fact that the gift agreement is implemented during the life of the donor, who can justify the chosen position and defend his preference.

Deprived of what they expected, the remaining candidates are wondering whether relatives can challenge the gift deed and what steps will need to be taken to do so.

When it is impossible to issue a deed of gift for an apartment

The owner has every right to dispose of his property, but there are restrictions that do not allow the registration of a deed of gift.

These include:

a minor or incompetent citizen does not have the right to dispose;
if the property is not properly registered, that is, there is no certificate of ownership;
You cannot donate a municipal apartment; it must first be privatized;
the transaction is not legal between employees and patients of social institutions;
Some government positions do not allow an employee to become a donor or receive property by gift.

Currently, a deed of gift can be written without notarization; the participants in the procedure must appear together at Rosreestr and provide the agreement written by the owner.

However, in complex cases involving controversial and conflict situations, it is preferable to have the agreement certified by a notary. The specialist will make sure that the donor is aware of his act, is in a normal mental state and there is no fraudulent scheme.

The notary has every right to request from the donor a certificate from a psychoneurological dispensary for the date closest to the signing of the document.

Sometimes citizens learn their rights and obligations only in such a situation and cancel their decision to draw up a gift agreement. Otherwise, the notary registers the agreement between the parties to the transaction. Such notarization, although not mandatory, significantly reduces the chances of applicants challenging the will of the donor.

At the initiative of relatives, a judicial hearing opens on the issue of canceling the deed of gift, returning the property to the previous owner, or dividing it among heirs (after the death of the property owner). Sometimes the former owner himself files a claim for restoration of rights; the court will make a negative decision if compelling arguments are not provided.

Reasons for terminating a gift agreement

During his lifetime, the donor himself is engaged in restoring the lost status if he has good reasons. A statement that he simply changed his mind and did not realize the consequences will not be accepted for consideration.

Disputes usually arise after the death of the donor, when relatives learn about the disposition made during his lifetime.

In both cases, in order to overturn the fact of a change in ownership of the property, the court will need strong evidence and undeniable arguments from the plaintiff.

In judicial practice, cases are considered in which several recipients, as well as other heirs, take part. Since a deed of gift can be issued to several people, not necessarily relatives, disputes over shared ownership of a donated apartment are quite common. The law recognizes the following grounds as valid for canceling a contract :

the deed of gift was issued under psychological or physical pressure. Proving criminal intent is quite difficult, but it is possible if there are witnesses and documentary evidence;
incapacity of the donor. This is the most frequently cited argument for the nullity of a transaction, which is quite difficult to prove to interested parties. The court treats such statements with caution if the donor is not registered with a doctor and does not have an officially documented chronic mental illness. A statement from the former owner that he was intoxicated with strong substances, injected with drugs or forced to drink alcohol must be supported by witness testimony and a medical certificate;
registration of a deed of gift in a fraudulent, deceptive manner. For example, if one of the applicants for the owner’s real estate deceives him, distorting the consequences of an important step, draws up schemes to isolate him from other interested parties and arranges staging for his own benefit;
forgery of an agreement before submitting it for state registration to Rosreestr. This option is possible if the agreement has not been notarized. That is why it is recommended to make two copies for participants and one for filing for registration of ownership. Identical versions of the document are signed by both parties to the transaction. In a conflict situation, it will be easy to prove that the recipient committed a forgery;
lack of consent from other legal owners, such as spouses. Joint real estate can be donated if there is a notarized permission from the other half. The use of manipulations in which there is no stamp in the passport or there is a divorce certificate is punishable by law;
lack of a certificate of ownership. If during his lifetime the owner of the apartment did not carry out state registration, then the deed of gift written by him has no legal force. It will not be possible to present it for re-registration to the new owner; a judicial review will be required to recognize the right to register the property in the required manner with the participation of all interested parties. The court decision is submitted to Rosreestr and is the basis for re-registration of documents;
grammatical and semantic errors in the gift agreement. Inattention sometimes becomes a reason for canceling a signed agreement. For example, in the passport the name of the recipient is recorded with one spelling, but the donor wrote a distorted or everyday name, patronymic or surname. Errors in the year of birth or address details of the apartment will inevitably not allow you to pass state registration.

Actions of the donor to return his property

If the donor wishes to return the property, he must follow legal methods. If the recipient proves in court that the second party to the contract used threats, blackmail or extortion, then the court will definitely side with the new owner. The following circumstances are significant in which the contract is terminated:

The death of the recipient allows you to file a claim for the return of your former property. Disputes arise between the direct heirs of the person who received the apartment by gift and the former owner. Quite often, a compromise decision is made in which the property must be sold and the funds divided according to the share ratio established by the court;
Unfair use of real estate received as a gift. If the previous owner has evidence of deliberate damage, redevelopment or desire to sell the apartment, then he submits his claims to the court;
deterioration of material condition. Such an argument must be substantiated with documents and certificates of income at the time of donation and after the passage of time.

Relatives can challenge the gift agreement in other cases, depending on specific circumstances. In most cases, the court takes into account the fact that the owner disposed of the apartment at his own discretion. In the absence of controversial issues and conscious violations of the law, it is not possible to challenge the act of transferring the apartment.

Can relatives challenge a gift agreement?

Source: https://alljus.ru/grazhdanskoe-pravo/nasledstvo/mogut-li-rodstvenniki-osporit-darstvennuyu.html

Where to start, where to turn?

First of all, it is worth informing the previous owner of the property about your intentions - after all, you can refuse only until the moment of accepting the gift, and then you will have to coordinate all questions on this topic with the donor.

Then you need to find out where to go, what package of papers to prepare.

The agreement to cancel the deed of gift is drawn up by a notary.

It is best to contact the same office that drew up the deed of gift. If the latter has not been certified by a notary, then the agreement canceling it does not need to be certified.

Drawing up an agreement yourself will save time and a lot of money, and if the intervention of a notary is required, then it is worth adding a clause on the division of registration costs between the parties.

Summary

Is it possible to transfer a deed of gift for real estate (apartment)? Is it also possible to transfer a deed of gift? Lawyers sometimes hear these questions. To transfer real estate received as a gift, a citizen can begin the process after he officially registers the property in his name and becomes the full owner.

To avoid refusal to formalize the transfer of rights, you should seek the help of a lawyer. A professional will be able to correctly draw up any type of document, including a gift agreement. He will correctly prepare the required package of papers and will also provide for all the nuances that often arise when resolving such cases. There is an important addition - during the transfer of real estate, the first copyright holder can challenge the transaction in court if he considers the actions illegal.

Submission of documents

What documents are required? The package of documents includes:

statement;
deed of gift;
passports of the parties;
extract from the Unified State Register;
certificate of number of residents;
consent of residents to cancel a previously drawn up agreement;
receipt of payment of state duty;
documents on the subject of ignition of passions - real estate, including a cadastral passport and a paper on the estimated value;
power of attorney, if one of the parties is represented by a proxy.

This is a basic list; in each specific case, there may be nuances that include the presence of additional papers .

A set of papers is submitted to one of the authorities:

Registration Chamber of Rosreestr;
MFC.

Any method of providing papers is suitable: personal visit, postal mail, e-mail (if there is an electronic signature).

Of course, the fastest result will be if the personal appearance of both parties to the transaction is ensured.

The donor has the right to cancel the donation if the donee

Optimism can be given at least by the simple fact that in Russian judicial practice quite often a gift agreement is canceled precisely after it has been challenged.

So, you can revoke a deed of gift by taking advantage of mistakes and violations made when concluding a legal act.

We bring to your attention cases when a gift agreement can be annulled:

There is no state registration. If the Federal Registration Service was not involved when concluding the agreement, then the donor remains the full owner of the property, who can do whatever he wants with it.

There is state registration, but there are other violations:

The contract states that the recipient must perform some service or pay a certain amount for the gift received. Since this contradicts the condition of gratuitousness and becomes a will, the agreement loses its legal force;
The contract states that the donated property passes to the new owner after the death of the donor. Such a condition characterizes the document as a will, and not as a gift, so it can be canceled;
taxes are not paid. If there is evidence that the deed of gift was only a false document for the purpose of selling an apartment or house, then the document will be immediately canceled;
exceeding one's powers. This refers to officials who, due to their position, are able to influence the life and safety of the donor, as well as his close and distant relatives and family members;
the co-owner of the donated property has not legally certified his consent;
the donor did not sign the document (intentionally or accidentally). Even experienced lawyers sometimes experience such embarrassment. Of course, if such a glaring error is discovered, the contract immediately loses its force;
rendering a verdict on the incapacity of one of the parties to the transaction. When the document was signed, one of the participants in the donation process could be drunk or in a state of drug high. Here you will definitely need medical certificates and accurate testimony of witnesses;
incorrect registration of contact or other personal information. Even one single incorrect figure is a strong argument in favor of terminating the deed of gift.

This is important to know: What cannot be challenged: deed of gift or will

Processing times and costs

Consideration of the application with attachments and preparation of a decision takes approximately 7 working days . In any case, the date for receipt of documents will be announced after all papers are accepted and a receipt is issued for the seizure of the originals.

For state registration of a document, the applicant must pay 2 thousand rubles. upon independent application to Rosreestr. To redo the certificate you need to pay 200 rubles.

Notary services cost from 3 to 7 thousand rubles, plus for technical work you need to pay

Regulating the process

The concept of cancellation of a donation and the regulations for its implementation are contained in Article 578 of the Civil Code of the Russian Federation.

It lists the grounds for the seizure of a donated property already owned.

This is important to know: Tax when registering a deed of gift for close relatives

According to this article, under certain circumstances, it is possible to carry out the procedure for revoking (cancelling) a donation for significant or important reasons . It is necessary to prove the significance of the reasons through the court.

Articles of the Civil Code of the Russian Federation, which provide for the invalidation of concluded agreements, are applicable to the procedure for challenging a donation. According to these rules, the following types of transactions are canceled:

Compiled in violation of the requirements of the law. The donation is absolutely free and unconditional. The presence of conditions that the donee must fulfill in order to become the full owner deprives it of legal force. These include, for example, the transfer of rights after the death of the donor (Article 168 of the Civil Code of the Russian Federation).
Imaginary. Transactions are recognized as such when, under the guise of a gift to reduce the state duty, a purchase, sale or exchange is carried out (Article 170 of the Civil Code of the Russian Federation). In such conditions, the second party will have to return the money paid.
Prisoners with an incapacitated person. These contracts are terminated without fail if the legal representatives of the incapacitated person were not aware of them (Article 177 of the Civil Code of the Russian Federation).
Committed under threats or through deception or misrepresentation. Such documents are often signed under the guise of other papers, and the person does not understand what he is doing. That is, the agreement does not reflect the real will of the owner (Article 179 of the Civil Code of Russia).

These rules apply to cases where the apartment is not transferred to the recipient of his own free will .

Independent refusal of the donated property by the recipient is carried out under Article 573 of the Civil Code of the Russian Federation. A concluded and already executed agreement is revoked by submitting an application to Rosreestr. Unlike a challenge, such a refusal is carried out without the participation of a court.

The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.
If the gift agreement is concluded in writing, the refusal of the gift must also be made in writing. If the gift agreement is registered (clause 3 of Article 574), refusal to accept the gift is also subject to state registration.
If the gift agreement was concluded in writing, the donor has the right to demand from the donee compensation for real damage caused by refusal to accept the gift.

Article 575 of the Civil Code of the Russian Federation lists unacceptable cases of concluding agreements. Cancellation of the deed of gift is made if:

The property was registered as a gift by the legal representative or guardian of a minor under 14 years of age or an incapacitated person on his behalf.
The apartment was received by a municipal employee or a bank representative as an incentive for services rendered.
The property was accepted as a gift by employees of guardianship authorities, educational or medical institutions on behalf of pupils or patients .
The deal was concluded between employees of commercial institutions .
The transaction was made by a person who does not have legal rights to the property.

All these types of transactions are prohibited by law and are subject to mandatory cancellation .

Find out on our website whether the procedure for donating an apartment with an encumbrance, for example, with the right of lifelong residence or a mortgage, is legal, as well as other special cases.

The deed of gift can be challenged or canceled either by the donor himself or by a third party in the event of his death or recognition as incapacitated. According to Article 56 of the Code of Civil Procedure of the Russian Federation, the responsibility for collecting and presenting evidence of the grounds for challenging a transaction lies with the applicant in court.

If the transfer of the apartment to the new owner has not been registered and the transaction is still in the process of being finalized, it can be canceled by submitting an application to Rosreestr.

The process of transferring the apartment to another person is stopped and canceled automatically .

A document that is not registered with Rosreestr is also considered invalid.

The owner of real estate is considered to be a person who has a Certificate of Ownership ; in this case, a deed of gift does not give rights to the property.