Gift deed for a room in a communal apartment: sample 2020

One of the separate types of residential premises is a room . According to paragraph 4 of Art. 16 of the Housing Code of the Russian Federation, a room should be considered a part of a residential building or apartment , which is intended for the direct residence of people in it. Thus, one should distinguish between several types of such premises - rooms in apartments, communal apartments or dormitories.

For your information

Since a room, like a living space, according to Art. 15 of the Housing Code, is an object of housing rights; it can act as an independent object of property rights. All other premises (bathroom, kitchen, utility rooms, etc.) will be in shared ownership of the co-owners of the residential premises, for example, communal apartments.

Acting as an independent object of property rights, it can be donated under a gift deed . According to Art. 572 of the Civil Code, such an agreement will imply an agreement between the donor and the donee on the free transfer in favor of the latter of property rights to the room.

Please note that donating a room is only possible if it is separated from the shared property and is in the private property of the donor. Otherwise, the donee can only receive a share in the ownership.

Registration of a room donation agreement

When formalizing the donation of a room, the parties to the transaction must take into account all the regulatory requirements imposed on it by the legislator. In particular, the most important aspects of the validity of a deed of gift should be considered the form of the agreement and its content . Since the room is real estate, which has special rules of civil circulation, the general rules established by Art. 574 Civil Code.

Important

Residential real estate requires state registration, the procedure for which involves submitting documents, including a gift agreement . According to Art. 18 Federal Law No. 122, all submitted documents must be executed on paper.

State registration requires a mandatory written form of the room donation agreement . Violation of this requirement will be the reason for refusal to carry out this procedure, as a result of which the ownership rights to the residential premises will not be transferred to the donee.

In addition to the mandatory form, the parties must comply with the legality of the terms of the gift agreement. The most basic requirement is the condition on the subject (Article 432 of the Civil Code). It involves describing the gift in a way that will distinguish it from similar real estate items.

Thus, the contract must contain the full address of the room , its area, data from the cadastral and technical passport, including description, defects, shortcomings, etc. At the same time, the agreement must also indicate the donation of common property , in the case of donating a room in a communal apartment (Article 42 of the Housing Code).

If there is a contract of promise to donate a room, then according to clause 2 of Art. 572 of the Civil Code, it must contain an indication of the donor’s intention to transfer the property in the future. In this case, it is also advisable to specify the method, terms and conditions of the transfer, attached documents, division of costs for processing the transaction, etc.

Additionally

Since housing is subject to personal income tax, calculated from its market value, such value must be indicated in the contract. For an objective assessment, it is advisable to resort to the services of an expert appraiser.

If there are defects in the room that threaten the life and health of the recipient, in accordance with Art. 580 of the Civil Code, he must be warned about them . In order to avoid subsequent proceedings on this matter, it is advisable to describe them in the contract itself or the transfer deed (Article 556 of the Civil Code).

Example

D. and K. entered into a deed of gift, according to which D. received a room in a communal apartment. However, the agreement contained only an indication of the room and did not imply the donation of common shared ownership of other premises in the apartment, which is required by paragraph 3 of Art. 42 LCD. K. decided to keep them for himself. Since common property follows the fate of a room in a communal apartment, giving one without the other is impossible. Based on this, the Rosreestr authorities refused K.’s state registration of real estate, due to the non-compliance of the agreement with the requirements of the law (Article 168 of the Civil Code).

Step-by-step instructions for donating an apartment: sample agreement

The new owner will not have any special obligations in relation to the donor (for example, to support him, to allow him to live in the apartment or to use it).

As a general rule, it is impossible to cancel a transaction of donating an apartment without a reason after registration of rights. This requires serious reasons, which are provided for by law. The donor's desire alone will not be enough in this case.

Grounds for cancellation of donation:

if the new owner died before the donor, and such a condition was stated in the contract.
if the new owner uses the housing for other purposes and worsens its condition, or there is a threat of destruction of the apartment;
if the donee has encroached on the life of the donor or his family;

The listed grounds are specific only to the gift agreement.

It can also be canceled on the general basis provided for all transactions. We wrote about how to do this in ours. The practice of concluding transactions for donating an apartment with lifelong residence is controversial for the following reasons:

State registration of donation of a room

State registration of real estate donation agreement was canceled by Art. 2 Federal Law No. 302 dated December 30, 2012 However, this norm did not cancel the requirement for state registration of the real estate itself , established by Art. 131 Civil Code. Thus, this procedure is carried out in the manner established by Federal Law No. 122 of July 21, 1997, taking into account special Methodological recommendations.

For your information

The state registration of rights to real estate is carried out by the Federal Service for State Registration of Cadastre and Cartography (Rosreestr), its local branches and Multifunctional Centers (MFC).

State registration of real estate is carried out in the manner prescribed by Art. 13 Federal Law No. 122. According to it, registration of rights begins from the moment the applicants (donation parties) submit a number of documents , a detailed list of which is advisable to find out in the Rosreestr branch. Before submitting documents, applicants must pay a state fee, which, according to Art. 333.33 of the Tax Code, amounts to 2 thousand rubles for citizens and 22 thousand rubles for organizations.

After submitting the application and documents, the applicant receives a receipt, which will indicate a specific date when he will be able to receive the expected state registration certificate. After receiving the documents, the state registrar carries out a legal examination of them for legality, after which he enters information into the register of rights (USRE) and applies certification inscriptions to the title documents .

According to paragraph 3 of Art. 13 Federal Law No. 122, registration is carried out within 10 working days . After this period, if all the information submitted complied with the requirements of the law, the applicant receives title documents and a certificate of state registration . From the moment of receipt of these documents, ownership of the room passes to the donee (clause 2 of Article 223 of the Civil Code).

Gift deed for a room in a communal apartment

If the property is managed by several persons, it is necessary to obtain consent from everyone.
When donating a room to an outside individual or organization, neighbors in the apartment can make a property claim.
If the donor has a minor child, it is necessary to obtain permission from the guardianship authority.

Draw up the text of the agreement yourself, in a notary office or through a lawyer.
Collect the necessary documents.
If the property is divided into shares, obtain permission from the co-owner.
Visit the regional registration authority located in the MFC (multifunctional center), a branch of RosReestr or a local government office.
Fill out the application form with a request to register the transfer of property rights.
Submit a package of documentation and receive a receipt for acceptance of papers, which indicates the date of the second visit to the registration authority to receive a response (the period for reviewing the paperwork is 10 - 30 business days ).
By the specified date, visit the RosReestr branch to receive an answer. If the request is granted, receive a certificate of title to the property; if the request is denied, an official sheet with a list of necessary amendments.
Draw up a deed of transfer and transfer the property to the donee. A real estate transfer and acceptance sheet can be issued at any stage of the paperwork.

Special cases of donating a room

A room, as a residential property, has quite specific features . Thus, its donation is possible only if it is in the private property of the donor, i.e. is an independent object of law . The procedure for its transformation into such an object of law depends on its belonging to a specific residential premises, of which it is necessarily a part (apartments, communal apartments or dormitories).

Thus, to donate a room in an apartment, the donor must initially separate it from common property into private property (Clause 2 of Article 252 of the Civil Code). According to paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 8 dated August 24, 1993, the allocation of a share of property in kind is possible only if it is technically possible to transfer to the owner not only an isolated premises, but also other premises, as well as equipment for a separate entrance.

Donating a room in a communal apartment

The mode of ownership of a room in a communal apartment presupposes the right of private ownership of the room itself, as well as the right of common shared ownership of the premises in this apartment - kitchen, bathroom, corridor (Article 41 of the Housing Code).

Important

When receiving premises in a communal apartment as a gift, the recipient also receives a share in the common ownership of the apartment itself, the size of which is proportional to the area of the room (Article 42 of the Housing Code).

Paid alienation presupposes the right of owners of other rooms to pre-emptive purchase (Article 250 of the Civil Code). A gift, being a gratuitous transaction, avoids the emergence of such a right, but excludes the possibility of the donor receiving property benefits.

Donating a room share

To donate a share of a room, it must also be allocated. Based on this, donating part of a room located in an ordinary apartment, if there is no technical possibility of allocation, seems impossible . donation of shares in property rights can be carried out

Donating a dorm room

To donate a dorm room, you first need to acquire ownership of it. This is possible through privatization (Federal Law No. 189 dated July 4, 1991), taking into account the norms of the Housing Code of the Russian Federation, which is free until March 1, 2016 .

To carry it out, a combination of a number of factors - the hostel must be on the balance sheet of the municipality, previously it was the property of a state or municipal enterprise, and now it is used for its intended purpose - for citizens to live in it.

After privatization, the rightful owner is free to dispose of the room in the hostel at his own discretion, including donating it to anyone , in accordance with Art. 572 Civil Code.

The procedure for donating a privately owned dorm room is subject to all general rules for donating residential real estate.

Registration of donation of a share in an apartment in 2020

2 tbsp.

246 of the Civil Code of the Russian Federation. And nowhere is it stated about the consent of other owners in such a situation - not in Chapter 32 of the Civil Code of the Russian Federation. Donation, nor in the Federal Law of July 13, 2015 No. 218-FZ, on the basis of which all real estate transactions are registered.

Stages:

Stage No. 1 – collecting documents
Stage No. 3 – Registration of the gift transaction
Stage No. 2 – order a donation agreement for a share of the apartment

Stage No. 1 – collecting documents Documents are needed in originals. Below I have listed a minimum list of documents, but in each specific case additional ones may be required. The full list can be found in the information window from an MFC consultant or the Registration Chamber (UFRS).

You can also find out from our lawyer.

Ask your question in the online consultant window at the bottom right of the screen or in the comments. You can also call the numbers (24 hours a day, seven days a week) in Moscow and the region; 8 St. Petersburg and region; all regions of the Russian Federation.

general information

So, a deed of gift for an apartment, what is it? This is a document according to which one party to the transaction undertakes to transfer certain property free of charge , and the second party must accept it.

The parties to the agreement are:

The donor is the one who owns the property and makes the transfer. This can be either an individual or a legal entity who has ownership rights to the thing being transferred.
The recipient is the one who accepts property as a gift . It can also be an individual or a legal entity.

A deed of gift for an apartment can be drawn up both between relatives and between people who are not related.

However, not all entities are allowed to formalize the donation of an apartment - in some cases this transaction
is prohibited :

between commercial organizations;
from the patient to the doctor or social worker;
a civil servant, if this is related to the performance of his official duties;
from a student to a teacher.

Legally permitted in this case is the transfer of an item worth no more than 3,000 rubles. – drawing up a contract is not required.

For a gift agreement to be valid, it must have certain characteristics:

The transaction is gratuitous – there is no payment for the item received as a gift.
The presence of two parties to the transaction - to conclude an agreement there must be both a donor and a recipient.
The absence of conditions in the contract , the fulfillment of which is mandatory for receiving a gift - the transaction must be concluded without any encumbrances for the recipient.
It is worth noting that with the help of a gift agreement, you can transfer not only a thing, but also certain rights - to receive property, money or other benefits.

A deed of gift for real estate has its pros and cons.

What documents are needed to legalize a transaction?

Purchasing real estate under a gift agreement involves the preliminary collection of a small package of documents. The parties will need:

passport;
a document proving ownership rights;
registration certificate for the property;
certificate from the BTI;
a certificate indicating the absence of any encumbrance;
tax payment certificate.

The registration of the deed of gift is completed by the signing of the transfer and acceptance certificate. Only this document can secure the rights of the new owner to the apartments and he will be able to fully dispose of the received property through registration with the registration authority. If they talk about concluding a regular purchase agreement, then according to it it can be transferred to the use of another person immediately after registration.

What is more profitable - donation or sale?

zoomingfoto1712/Fotolia The main difference between a gift agreement and the sale and purchase of real estate is its gratuitousness.

In the case of transfer of a counter item under a gift agreement, the agreement is a sham transaction, that is, void. Advantages of a gift agreement:

Real estate transferred under a gift agreement during marriage is not subject to the regime of common joint property of spouses. Real estate is the sole property of the spouse who received it as a gift (Article 36 of the RF IC).
The gift agreement can be terminated by the donor in cases specified by law. Thus, if the donee has made an attempt on the life of the donor, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor, then he has the right to cancel the donation (Article 578 of the Civil Code of the Russian Federation).
Reduced waiting period for subsequent disposal under a purchase and sale agreement. Upon subsequent sale of real estate accepted as a gift, personal income tax does not have to be paid after three years (clause 3 of Article 217.1 of the Tax Code of the Russian Federation). And with a purchase and sale agreement - after five years.
When concluding a contract for the donation of a share of real estate, it is not necessary to comply with the rule on the pre-emptive right of purchase by other co-owners. And when concluding a purchase and sale agreement, the remaining participants in shared ownership have a pre-emptive right to purchase a share (Article 250 of the Civil Code of the Russian Federation).
There is no obligation to pay personal income tax (hereinafter referred to as personal income tax) in the event of an agreement between close relatives (clause 18.1, clause 18 of Article 217 of the Tax Code of the Russian Federation). These are parents and children, grandparents and grandchildren, brothers and sisters.

The main disadvantages of a gift agreement:

When concluding a gift agreement between third parties, it is necessary to pay personal income tax in the amount of 13% of the value of the property accepted as a gift.
It is easier to challenge a gift agreement in court and invalidate it.
Donation is prohibited in relations between commercial organizations (clause
4, clause 1, article 575 of the Civil Code of the Russian Federation)

How legal is it to purchase 1 share of a room in a communal apartment through a donation?

It is difficult to collect refusals from owners.

Therefore, they offer to purchase part of the room through a donation, and part under a purchase and sale agreement.

As I understand it, you have to pay tax on a complete donation; the room has been owned for 5 years (bought in the same way).

The cost is 1,200,000, is tax paid on the entire cost if the entire area is donated? How legal is the proposed method? If there are any claims from the owners (which is unlikely to happen), provided that we are like-minded with the seller, in which direction can the matter be decided? Thank you in advance! 18 August 2020, 13:24, question No. 1349539 Varvara,

St. Petersburg Collapse Online legal consultation Response on the website within 15 minutes Answers from lawyers (1) 384 answers 116 reviews Chat Legal company EdHock, St. Petersburg Varvara, hello!

This method of purchasing rooms in communal apartments is indeed widely used in practice.

The danger is that the transaction between you and the seller may be declared invalid under Art. 170

"Civil Code of the Russian Federation (Part One)"

dated November 30, 1994 No. 51-FZ, as feigned. As a rule, in order to make this more difficult, one room is divided into two agreements: purchase and sale and donation.

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But in any case, such a risk always remains, it is simply somewhat minimized by concluding two contracts. If there are no problems expected with the owners of other rooms, then in principle you can agree to this option.

Just in case, we point out that the consequences of declaring a transaction invalid on this basis will be the application of the rules about the transaction that the parties had in mind, that is, the rules of the sales contract will apply to your transaction. However, since the sham transaction will be concluded in order to avoid the need to exercise the right of pre-emption, it is likely that the court may apply another consequence of invalidity, which is to transfer the rights and obligations to the one whose right was violated.

Description of the agreement

A gift agreement involves the transfer of property, not necessarily an apartment, for free use. He doesn't have to pay money for the property. The agreement is always concluded in writing, and after that it is submitted to a notary for verification. He checks the documentation of all parties involved and puts his stamp on the completed agreement. You need to keep in mind that every notary registers a deed of gift, so the tax office will always know about the fact of transfer of property. The parties sign the agreement and only after that it comes into force.

The donor will have to give money to the state treasury if he decides to donate the apartment to a stranger. Such transactions are taxed at a standard rate of 13% of the amount .

However, in a situation where the property is transferred to the use of immediate relatives, there is no need to pay a fee. The list of close relatives includes parents, brothers and sisters, children, grandparents, grandchildren and adoptive parents.

Some citizens cover up the fact of selling an apartment with a donation, hoping that the tax service will not notice this trick. In fact, it turns out that the inspectorate also monitors such transactions. Unscrupulous citizens in such a situation may face a serious fine. Its size is established by law.