Is it possible to donate an apartment with a mortgage? How to donate an apartment with a mortgage and is it possible to do this if the bank is against it?

When a person takes out a mortgage on an apartment, he often pays it off for at least 10-15 years.

During this time, a lot can change, the borrower’s plans may change, for example, he may want to give a mortgaged apartment to his child, spouse, or parents.

But a logical question arises: “Is it possible to donate an apartment with a mortgage if the debt has not yet been paid?”

Resolving the issue of changing the owner of an apartment that is encumbered by a bank is difficult and there are subtleties in this matter, which will be discussed below.

The procedure for registering a deed of gift for a mortgage apartment in 2021

If the borrower plans to donate mortgaged housing to a third party, then he must:

Obtain the bank's consent to carry out the transaction for the transfer of housing.
Collect a package of documents for the bank.
Draw up a deed of gift.
Submit documents with an application to Rosreestr for re-registration of property rights to housing.
Receive an extract from the Unified State Register of Real Estate.

How to negotiate with the bank and donate a mortgage for an apartment?

In isolated cases, banks agree to change the owner of a mortgaged apartment . If in the future the borrower plans to donate mortgaged housing, then even at the stage of drawing up and signing an agreement with the bank, he must insist that the contract contains a clause on the possible donation of housing in favor of third parties (with the consent of the bank).

Only in this case does the borrower have at least some chance of donating an apartment that is under encumbrance.

If this clause is included in the agreement, then the borrower’s next step is to agree with the bank on the issue of donating housing under encumbrance.

To do this you need:

Go to the bank branch with which the borrower entered into a mortgage agreement.
Write an application for obtaining the right to donate an apartment. The application must be accompanied by documents for the collateral property, as well as papers in the name of the person to whom the borrower plans to gift the home.
Explain and, if necessary, prove to the bank employee why he should agree to change the borrower (for example, it is difficult for the current borrower to pay the mortgage, but the new owner has a much better financial condition).

Algorithm of actions

The initial step for further actions will be obtaining permission from the banking organization.

To do this, the potential donor must visit the institution and provide the following documentation:

Applicant's identity card.
Documentation confirming the prerogative of ownership of the subject of the procedure.
Proposed text of the donation agreement.

After approval from the institution is received, you need to directly draw up an agreement for transferring the preference for ownership of real estate to another person.

Here you should have paper support with you:

passport of the property owner;
identification card of the person receiving the gift;
certificate of preference of ownership;
technical documentation for housing;
cadastral passport of the apartment;
extract from the unified register;
if the square meters were purchased in a marriage, then the consent of the second spouse will be required, certified by a notary;
extract from the house register;
in the case of affecting the preferences of a minor - consent to the transaction from the guardianship authorities;
approval from a credit institution.

How to draw up a deed of gift for an apartment with a mortgage? Features of compilation

If the borrower has received written consent from the bank to donate a mortgage, then it is worth thinking about drawing up a deed of gift.

The document is drawn up in writing; the text of the contract must reflect the following information:

information about the parties to the transaction: the donor, the recipient and the creditor (bank);
information about the documents on the basis of which the apartment is the property of the donor;
documents regarding the subject of the transaction (technical passport, etc.);
information that the apartment is being donated free of charge;
rights and obligations of the parties to the transaction (indicate that the recipient receives the obligation to pay the balance of the mortgage debt);
procedure for transferring an apartment;
information that the transferred housing is pledged to the bank;
signatures of the parties (donor, recipient, responsible bank employee).

The deed of gift does not need to be notarized . The main thing is that the agreement is correctly drawn up and registered with Rosreestr.

You must complete the deed of gift registration procedure within 12 months. If you do not meet this deadline, then the contract will lose its legal force.

Registration of a donation agreement for a mortgaged apartment

According to Part 3 of Art. 574 of the Civil Code of the Russian Federation, the deed of gift must be drawn up in writing and it must undergo state registration. Therefore, after signing the agreement, it is necessary to submit all necessary documents to Rosreestr.

It is mandatory to provide a mortgage agreement, which will indicate the possibility of transferring the subject of the agreement to another person as a gift. Also, a Rosreestr employee will not accept documents from the applicant if he does not provide written consent from the bank to carry out the transaction.

Only if you have this document, as well as the mortgage agreement itself, can you register a deed of gift and subsequently transfer the apartment to the donee.

Step-by-step instruction

First of all, you need to decide who exactly you want to give the apartment to.
Next, review your mortgage agreement. If he has permission to carry out such a transaction, then you can come to the bank.
At the bank's office, employees will check your credit history, as well as find out your solvency and other documents that characterize you as a client (call the bank in advance, find out where and when you can approach them with your question).
If the data received about you meets the necessary requirements, you proceed to the next step.
The bank must give you written permission stating that it is not against you making such a transaction.
After this, you can draw up a gift agreement with a notary, or without certification by one.
Then you register ownership of the person in respect of whom you made the transaction.

It would seem that everything is very simple, but this transaction has a number of nuances. Let's get to know them in more detail

Where to contact?

In order to receive clarification about the possibility or impossibility of making a donation, you need to go to the office of the credit institution that issued your mortgage.

It is very important that the office of this company is located in the same region as you, and also preferably in the city where you received mortgage lending and where you purchased housing. It is there that you will be given all the instructions, whether the transaction will be refused or approved.

List of required documents

When the bank has given its consent, the time comes to draw up a deed of gift for the apartment taken under the mortgage lending program.

For state registration of an agreement, the following package of documents is required:

Passports of citizens of the Russian Federation belonging to the donor and recipient.
Application for registration.
A document confirming the right to real estate.
A technical passport for the living space that is given by one person to another.
The approval of the second spouse, which must be certified by a notary. This is necessary if the home was purchased during marriage.
An extract from the apartment register about the persons registered in this living space.
Approval from the Board of Trustees. Requested when the gift transaction concerns the rights of incapacitated or minor persons.
Bank consent.

If the apartment has several owners , then they all must sign the agreement.

The relationship between the donor and the recipient is sometimes formalized in simple written form.

However, it is better to contact a notary, since this approach will help to correctly draw up the document .

The very fact of transferring real estate as a gift must be recorded with the registration authority throughout the year (read about registering a gift in Rosreestr). The document will lose its validity if this is not done.

Design features

A special feature of this agreement is the direct participation of the bank. The agreement cannot be executed until there is permission from the credit institution.

The gift agreement must necessarily contain the fact that the property is pledged to the bank, however, at the time of the donation, the right to it passes from the bank to the new owner. At the same time, the donor is not relieved of the burden of making payments to the credit institution.

This condition must be indicated in the contract, and without it it is impossible to register property rights in Rosreestr.

How much will you have to spend?

The gift transaction is absolutely free, but only if it occurs between close relatives.

However, if the transaction is carried out between citizens who are strangers or distant relatives to each other, then the parties are required to pay 13% of the amount of the property.

The agreement specifies which party is obliged to pay this amount in the form of taxes to the state.

In addition, registration of new property rights for a new person implies a state duty to Rosreestr in the amount of two and a half thousand rubles.

If you use the services of a notary, they are also paid. But obtaining bank permission is a free procedure.

What is the time frame for the transaction?

The donation transaction is carried out immediately upon receipt of permission from the bank.

As a rule, registration with Rosreestr will take one working week.

The bank's consideration of your application for permission to make a gift may also take from three working days to one week, depending on the workload of the credit institution.

On average, this transaction can be completed in less than one month.

In what cases can you obtain the bank’s consent to donate a mortgaged apartment?

When considering a borrower’s application to donate housing to another person, the bank pays attention to the following points:

terms of the mortgage agreement . If the agreement contains a clause on the possible procedure for donating housing under mortgage, then the bank will consider the application. Otherwise, banks often refuse borrowers;
percentage of remaining debt . If the borrower has repaid most of the mortgage, then he can actually obtain the bank’s consent to donate mortgaged housing. If the borrower has not repaid even 50% of the amount that the bank gave him, then the chances of approval of the application are reduced;
solvency of the new owner . When considering an application for donating a mortgaged apartment, banks are sure to ask where the person to whom the current borrower plans to donate an apartment works, how much he earns, how long he has been working, etc. If the financial condition of such a person is favorable, and the current borrower loses his previous financial stability, then the bank can approve the procedure for donating a mortgaged apartment.

Is it possible to donate a mortgaged apartment without the bank's consent?

Some people mistakenly think that they can give a mortgaged home to one of their relatives . However, without the bank's consent, this cannot be done.

Even if the donor and recipient enter into a gift agreement, such a document will not have legal force, since it will then have to be registered with Rosreestr, and no one there will accept the agreement without the consent of the financial institution where the borrower took out the mortgage.

And even if the borrower has some connections, he registered the agreement in a cunning way, then if this fact is discovered, the bank may demand to cancel the transaction and oblige the borrower to repay the mortgage prematurely.

If the borrower does not comply with the bank's requirements, then the lender has the right to demand the sale of the borrower's collateral property in court.

Requirements for deed of gift

This is the main document containing all the key aspects of the procedure. Therefore, it should be drawn up correctly or entrusted to a specialist - a notary.

The finished version of the deed of gift contains:

Details of three parties - the donor, as the previous owner, the recipient and the bank itself.
Data on the title document - the purchase and sale agreement under which the citizen initially purchased housing on credit.
Characteristics of the property, including technical description.

Also:

The fact of gratuitous transfer of the object. The donee must not contribute money or provide any services to the donor in return.
Indication of the rights and all obligations of the parties.
Information about the fact of transfer of ownership rights. It is emphasized that the recipient is aware of the status of the housing, that it serves as collateral.
Signatures of the parties.

Upon completion of registration of the transaction, the donee will take a certificate of ownership (USRN extract), where the encumbrance will be indicated.

Transaction cost

According to the law, the gratuitous transfer of mortgaged real estate to another person is subject to tax. According to the provisions of Article 220 of the Tax Code of the Russian Federation, family relations between the parties to the transaction are important:

if strangers participate in it, then the recipient pays 13% of the cost of the object;
if relatives, there is no tax.

A close relationship is considered, i.e. children, parents, grandparents or full sisters and brothers.

The state registration itself will cost 1000 rubles (fee).

Is it possible to give an apartment with a mortgage as a gift to a child?

An apartment purchased with a mortgage is pledged to the bank until the debt is paid off. Only with the consent of the bank can the borrower carry out any real estate transaction taken on a mortgage.

Even if the bank agrees to change the owner, it will carefully check its solvency . And since the child does not have his own income, the bank may refuse to process the transaction for him, even if he has the consent of his parents or they have confirmed their solvency.

If the bank has approved the borrower’s application to donate a mortgaged apartment to a child, then the donor must enter into a deed of gift with the recipient, obtain written consent from the bank and send documents for registration to Rosreestr.

Who will be allowed to donate an apartment?

Is it possible to donate a house with a mortgage? What about an apartment? For a bank, changing a borrower is a troublesome process. Donating living space for which the debt has not yet been repaid implies that not only square meters, but also loan obligations are transferred to the new owner. He will have to make monthly payments in the future, pay for insurance, etc.

The likelihood of approval of the transaction increases if the original borrower has paid more than 50% of the total amount under the agreement.

Accordingly, the recipient's candidacy is subject to careful consideration and study. The new borrower must be solvent and within the age limits established by the specific lender. And the “old” debtor will definitely be required to prove the reasonableness and necessity of such a transfer of obligations.

If we are talking about the presence of a serious illness, an extract from the medical record and a certificate from a specialized doctor will be useful. If the financial situation worsens - a dismissal order, a copy of the work record book or a 2-NDFL certificate.

Important! If the lender's security service decides that the risks of non-repayment of funds increase with a change of owner, the transaction will be prohibited.

Below we consider the attitude of credit structures to different categories of persons - apartment recipients.

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How to re-issue a mortgage to another person: procedure and conditions is detailed in another article.

The apartment is transferred to a minor or relative

Is it possible to give an apartment with a mortgage to your daughter or son? The option is unlikely if he is not yet 18 years old. He is considered incompetent and does not yet have his own income sufficient to pay off the debt. In 99% of cases, the bank will not agree to a change of owner.

Assuring parents that they will take over the loan payments themselves or going to court to recognize the recipient as legally competent will not help. Banks insure against such risks and in most cases stipulate in the agreement a ban on transferring property to a minor.

If, for various reasons, the borrower wants the apartment or house to go to a specific son/daughter/nephew, he can draw up a will and have it certified by a notary. This procedure is not prohibited by law.

Is it possible to gift an apartment with a mortgage to a relative? Yes, provided that he meets the bank's requirements, is solvent, has not reached the upper age limit set by the lender, and does not have his own credit obligations.

Lenders do not approve the procedure of gifting real estate to elderly people, regardless of the degree of relationship. It is believed that the only stable income is a pension, but it will not be enough to pay off the debt. An exception is the provision of additional collateral, guarantors or co-borrowers.

Gift recipient - spouse

In accordance with current legislation, spouses automatically become co-borrowers under the Credit (Mortgage) Agreement and co-owners of the purchased property.

Important! Banks strongly “recommend” registering living space not as shared ownership, but as common joint ownership.

There are only two cases when a spouse is not included in the list of co-borrowers:

he/she is not a citizen of Russia. Some banks refuse such restrictions and issue loans to residents of the Russian Federation. But most of the creditors are conservative, not wanting to cooperate with those who can leave the country at any time and never return here;
The spouses entered into a prenuptial agreement providing for separate ownership of real estate. In this case, the husband/wife does not become co-borrowers and cannot claim a share in the purchased apartment.

The process of donating a mortgaged apartment to a spouse is considered inappropriate and is not practiced. Initially, the contract implies a community of ownership, and therefore responsibility. There may be exceptions, but in a very limited number of cases, for example:

the loan agreement was signed by the husband/wife before marriage;
The apartment was purchased during marriage, but the union broke up. One of the spouses wants to get rid of unnecessary property and transfer it to the other.

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Regardless of the reason for the transfer of square meters, the bank will assess the recipient’s solvency, taking into account all the requirements and rules in force in the credit institution.

Donating an apartment to a co-borrower

Co-borrowers are special people in the relationship between mortgagees and title borrowers. They are fully liable for debts to the creditor, but do not always claim square meters. Is it possible to gift an apartment with a mortgage to a co-borrower (not husband or wife)? The issue requires separate consideration.

The relationship between the main debtor and each co-borrower is governed by additional agreements. For example, he is allocated a share in an apartment in the amount of 25-30-40-50%, provided that he deposits the required amount into the lender’s account. If the main debtor, for various reasons, stops paying under the agreement, the bank automatically switches its attention to the co-borrower. He won't even have to go to court for this.

Transferring the debt to a co-borrower is possible (the situation when a husband/wife becomes a co-borrower was discussed earlier). For example, the main debtor wants to transfer both obligations and property to a second person specified in the contract due to health reasons, due to the inability to make payments in the future.

Important! Regardless of who the borrower wants to give his property to, the lender will calculate his risks. If, based on the results of the analysis, it is decided that the likelihood of non-return of money increases, the transaction will be prohibited.

In order for the lender to treat the procedure favorably, the recipient must have an income higher than that of the current payer. He should not have debts in banking structures or negative entries in his credit history.

Is it possible for a co-borrower to take out a mortgage and how to increase the chance of approval - is described in detail in another article on our website.

Is it possible to donate a share in a mortgaged apartment?

You can donate a share of an apartment, as well as the entire apartment under a mortgage, only with the consent of the bank.

According to Art. 37 of the Law “On Mortgage”, property pledged under a mortgage agreement can be transferred to a third party only with the consent of the mortgagee (bank). Consent must be expressed in writing. Without it, you cannot even donate a share in an apartment with a mortgage.

In theory, it is possible to donate an apartment that has a mortgage, but only with the consent of the bank, which issued the money to the borrower . In practice, not every borrower the bank gives its consent to such a transaction, because it does not want to risk entering into a relationship with a new borrower.

But if the donor proves that it is beneficial for the bank to give his consent (for example, indicates that the recipient is a solvent person), then there is a chance of obtaining the bank’s approval.

It is impossible to donate a mortgaged apartment without the written consent of the bank (unless the borrower pays off the mortgage in full and becomes the full owner of the apartment).