1. Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party . If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. The rules provided for in paragraph 2 of Article 170 of this Code apply to such an agreement.
2. A promise to transfer a thing or property right to someone free of charge or to release someone from a property obligation (promise of donation) is recognized as a gift agreement and binds the promisee if the promise is made in the proper form (clause 2 of Article 574) and contains a clearly expressed intention to commit in the future, the gratuitous transfer of a thing or right to a specific person or to release him from a property obligation. A promise to donate all of one’s property or part of one’s entire property without indicating the specific object of the gift in the form of a thing, right or release from obligation is void.
3. An agreement providing for the transfer of a gift to the donee after the death of the donor is void. The rules of civil inheritance law apply to this type of gift.
Participants in the gift agreement. Decor
Donation agreement article No. 572 in paragraph No. 1 states that the deed of gift must be drawn up in written format. The subject of the transaction is an object of movable or immovable property. The essence of the transaction is the free transfer of a thing or rights to an object without reciprocal obligations.
It is noteworthy that the recipient may refuse to accept the gift and not explain the reasons. The law of gifting also states that a person who decides to donate property may not fulfill the conditions of the transaction if:
- The person accepting the gift threatened the health or life of the donor, incl. to his loved ones and relatives.
- After signing the agreement, the health level or quality of life of the donor sharply deteriorated, incl. other circumstances occurred. This right is contained in the Civil Code of the Russian Federation in Article No. 577.
Please note that you do not have to register or enter into a written agreement for a deed of gift if we are talking about a gift worth less than 3,000 rubles
The law of gifting also suggests that you can give both an object and the title documentation for it or a symbolic aspect (for example, a key to a house or car).
When a deed of gift is carried out on behalf of a donor registered as a legal entity, and the price of the object of donation is over 3,000 rubles, then the transaction must be carried out in writing.
In a situation where the donation will be made in the future tense, the agreement must also be drawn up on paper.
A donation under the Civil Code for a real estate property is subject to a mandatory registration procedure with government agencies. To do this, you should collect papers confirming ownership. For example, if an apartment is given as a gift, then you need to take technical and cadastral passports, a certificate from the house register, etc. The collected documents are transferred to Rossreestr and undergo legal examination.
In case of shared ownership of property, permission must be obtained in writing, which must be certified by a notary.
According to the standards of the Tax Code of Russia, deeds of gift are subject to a tax levy of 13%. The preferential category includes only those participants in the transaction who have close family ties. In all other cases, tax is paid on the value of the gift, which is indicated either in the cadastral passport or in the contract.
Civil Code deed of gift for an apartment
- Name;
- personal data of the parties (full name, passport details, date and place of birth, registration and actual residence address);
- subject of the agreement (apartment address, number of rooms, floor, total and living area);
- a document allowing the donor to dispose of the housing;
- the period during which the apartment is transferred to the new owner (after signing the document or after an agreed period of time);
- rights and obligations of the parties;
- procedure for resolving controversial issues;
- date and place of conclusion of the agreement;
- signatures.
We recommend reading: Period of Temporary Registration in the Owner’s Apartment
Conditions for the invalidity of a transaction
The Donation Law and civil law in Article No. 572 indicate situations in which transactions will not be considered invalid.
- The text of the document contains a requirement to provide counter services, payment, or otherwise.
- The donor verbally promised to donate the item, but did not sign the agreement.
- There is no indication of the subject of the donation.
- There are no characteristics of the transferred property, incl. There is no inventory of the items that the donated object includes.
- A donation cannot be an agreement under which the item will be transferred after the death of the donor.
Article 575 of the Civil Code of the Russian Federation prohibits donations. It is valid in the following cases:
- The donor cannot be a minor or an incapacitated person, incl. You cannot act on their behalf in such transactions.
- According to the Civil Code of the Russian Federation, a gift agreement cannot be concluded between commercial companies.
- Persons holding positions in the state apparatus, incl. educators, social service workers, clinic representatives, etc.
The law of donation also provides for the cancellation of a deed of gift if it is drawn up with errors.
drawn up in accordance with the current Legislation of Russia (Article 574).
Article 575. Prohibition of donation
1. Donation is not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles:
1) on behalf of minors and citizens recognized as incompetent, their legal representatives;
2) employees of educational organizations, medical organizations, organizations providing social services, and similar organizations, including organizations for orphans and children without parental care, citizens who are in them for treatment, maintenance or upbringing, spouses and relatives these citizens;
3) persons holding government positions in the Russian Federation, government positions in constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia in connection with their official position or in connection with the performance of their official duties;
4) in relations between commercial organizations.
2. The prohibition on gifts to persons holding government positions of the Russian Federation, government positions of constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia, established by paragraph 1 of this article, does not apply to cases of donation in connection with protocol events, official business trips and other official events. Gifts received by persons holding government positions of the Russian Federation, government positions of constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, employees of the Bank of Russia and the value of which exceeds three thousand rubles are recognized, respectively, as federal property, property of a constituent entity of the Russian Federation or municipal property and are transferred by employees according to an act to the body in which the specified person holds a position.
Pros and cons of gifting with other types of transactions
The gift agreement, according to the Civil Code, provides for the re-registration of property rights. But just like any other type of transaction, the civil code presents both pros and cons for donations. Let's compare the deed of gift with other types of contractual relations.
Sales contract and the law of gift
The advantages of a free transaction in comparison with purchase and sale are:
- Ease of design. When the gift is inexpensive and does not exceed the threshold of 3,000 rubles, then the agreement is reached verbally. There is also no need to have documents endorsed by a notary unless the cases are included in the exclusive list.
- Speed of closing a deal. Depending on the situation, donation can be carried out within one day.
- Under a gift agreement, you can donate a share in property (Chapter 32), this allows you to exclude the rule of first priority for the purchase of part of the property from other owners.
The disadvantages include the mandatory payment of 13% income tax, and a narrow circle of people has the right to receive benefits. Another disadvantage is the revocation of the deed of gift, i.e. the donee cannot be sure that the contract will not be canceled in the future.
Deed of gift and exchange
The law of gift has the following advantages over exchange:
- Convenience and speed of registration.
- Property can be transferred bypassing the heirs, i.e. those relatives and persons entitled to property cannot make claims under the deed of gift. The legislation provides for this in Article No. 1149.
- The gratuitous transfer of any piece of property without the recipient having to pay for it.
From the point of view of the minuses, here we can talk about mandatory taxation and the free nature of the transaction.
Gift agreement and annuity
The law of gift in the case of annuity has a number of advantages, such as:
- A contract for re-registration of ownership is quickly and easily drawn up.
- Registration takes up to 14 days.
- There is no need to specify additional clauses if this is not dictated by the current civil legislation.
As in previous versions of transactions, the main disadvantage of donation is the payment of a tax of 13%.
Additionally, you can refer to Article No. 583 of civil law, on the basis of which financial resources must be paid under the annuity agreement. But the deed of gift not only does not imply such a condition, but it is forbidden to indicate this point in it.
Article 576. Restrictions on donation
1. A legal entity to which a thing belongs under the right of economic management or operational management has the right to donate it with the consent of the owner, unless otherwise provided by law. This restriction does not apply to ordinary gifts of small value.
2. Donation of property that is in common joint ownership is permitted with the consent of all participants in joint ownership in compliance with the rules provided for in Article 253 of this Code.
3. The donation of the right of claim belonging to the donor to a third party is carried out in compliance with the rules provided for in Articles 382 - 386, 388 and 389 of this Code.
4. Donation through the fulfillment of his obligations to a third party for the donee is carried out in compliance with the rules provided for in paragraph 1 of Article 313 of this Code.
A gift through the transfer by the donor of the donee's debt to a third party is carried out in compliance with the rules provided for in Articles 391 and 392 of this Code.
5. A power of attorney for making a gift by a representative, in which the donee is not named and the subject of the gift is not indicated, is void.
What is a deed of gift? Rules for the execution of the contract
Issues of donation are regulated by the Civil Code of the Russian Federation, part two, chapter 32, art. 572-582. According to the Civil Code, a deed of gift is an agreement on the gratuitous transfer of property for the use of a certain person, with the transfer of all property and legal obligations.
The agreement should not contain conditions for a counter transfer of property, otherwise it is considered invalid as a gift and must be formalized as, for example, a sale. Otherwise, such a gift is an imaginary transaction, and this may entail criminal liability.
The deed of gift is drawn up by a notary, or in words. The completed paper is subject to mandatory state registration in Rosreestr. Only a registered transaction can be subsequently challenged or canceled in court.
According to the Civil Code of the Russian Federation, the document can indicate the future point in time at which the property will become the property of the donee. However, the moment of death of the donor cannot be this “starting point”: inheritance rules apply to such transactions. Accordingly, the will of the donor must be formalized as a will.
A deed of gift cannot be drawn up for the entire property of the donor: the text of the agreement must contain specific wording about the thing (gift) that goes to the donee.
Article 578. Cancellation of donation
1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor.
In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor.
2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss.
3. At the request of an interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within six months preceding the declaration of such a person as insolvent (bankrupt).
4. The gift agreement may stipulate the right of the donor to cancel the gift if he survives the donee.
5. In case of cancellation of the donation, the donee is obliged to return the donated item if it was preserved in kind at the time of cancellation of the donation.
Article 572 of the Civil Code of the Russian Federation
Compensation or gratuitousness depends solely on whether the action of one person is in a certain legal dependence on the action of another person or not. A legal relationship will be gratuitous if it consists of an obligation of only one subject, which is neither conditionally nor causally dependent on the actions of another counterparty or at least on the obligations of both parties, but if the obligation of one party is, in its content, only defining or limiting the obligation the other side.
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