We weigh the pros and cons: the pros and cons of deeds of gift for an apartment and a house

All articles

26609

2020-03-13

This article will help determine what needs to be taken into account when drawing up an apartment donation agreement, which persons pay the tax fee, and which are exempt from payment. You will also find out what package of documents you need to have in order to take ownership of real estate and which government agencies you need to contact.

Donation of an apartment

- This is a complex process that needs to be legally formalized. Among all types of valuables (family jewels, silver cutlery, money), real estate is the only one that requires registration in accordance with the rules established by law.

It is important to remember that by donating square meters, the owner is giving away the living space free of charge. The apartment donation agreement does not provide for the transfer of funds for the property received. If the agreement states that the owner of the apartment receives money for the property, the transaction may be canceled and declared illegal. If the owner wants to receive compensation, it is recommended to draw up a purchase and sale agreement.

Donating an apartment, what do you need to know when registering?

If, after his death, the donor wants the apartment to be transferred to another person, it is not recommended to indicate this data in the agreement. To do this, it is better to draw up a will.

Procedure for donating an apartment

Donating an apartment in 2020 begins with drawing up an agreement and collecting a package of documentation.

You can complete the transaction either independently or with the help of a notary (application to a notary increases risk reduction).

The agreement is signed by both parties, which indicates that the residential property passes into the ownership of another owner. Drawing up a contract is an important point; the document contains many legal nuances and aspects that must be displayed.

Afterwards, a package of documentation is collected and sent to Rosreestr, where they will make a note that the property has a new owner.

Sample apartment donation agreement

will help determine what main nuances should be displayed in the document.

Important! The main document for conducting a donation transaction is an Extract from the Unified State Register of Real Estate , which you can order on our website.

Types of deeds of gift for an apartment

An agreement to donate an apartment to a relative can be of several types, depending on whether the entire property or a share is transferred and the number of owners. Another type of deed of gift for an apartment is a gift with an encumbrance.

Types of gift agreement

In addition to common features, agreements also have differences. The following types of deed of gift are distinguished:

1. Real gift agreement
   . Implies the transfer of things without additional conditions. This could be a donation agreement for a plot of land, real estate or a car.
2. Consensual agreement
   . Contains information about when and under what conditions the right to property will pass to the disposal of the donee. The donor can set certain conditions, subject to which the property will be transferred to the new owner.
3. Donation agreement
   . Property is given under the condition that the recipient will use it for the benefit of society. In this case, the donee must keep a record of all transactions performed with the property.

Drawing up a contract yourself

The seller can draw up an agreement on his own; the law does not prohibit such a procedure. The only caveat is that all points must be drawn up correctly.

A sample agreement for donating an apartment between close people will help you understand what points should be included in the agreement.

It is important to remember that independently drawing up a contract with errors can lead to the cancellation of the transaction and its recognition as illegal.

Before drawing up a contract, you must order an extract from the Unified State Register of in order to correctly enter data about the property.

The sample donation of an apartment contains the following main points:

1. What is the subject of donation? The agreement must indicate square meters, address, how many rooms, if a multi-storey building, then on what floor the apartment is located, telephone number.
2. Who is the party to the transaction? It is necessary to register the details of each party, for example, passport details, full names, where the persons reside at the time of drawing up the agreement.
3. When and on what date the transfer took place.

The agreement is confirmed by the signatures of both parties. This is only the first stage of the transaction; then the new owner must assume legal rights.

Actions after drawing up the clauses of the agreement:

1. Write an appeal to the MFC or the Registration Chamber.
2. Pay the state duty
3. Receive a certificate indicating that the application has been accepted.
4. Come for help.

What is a gift deed?

A document is an agreement made between individuals or companies. A gift agreement is a transaction in which one party must transfer the right to dispose of property free of charge. The agreement can be drawn up in relation to a car, apartment, house, land or debt obligations. For example, one participant can pay off a debt to the bank for another person, while drawing up a gift agreement for the amount contributed.

What does a gift agreement look like?

The agreement can be concluded not only in writing, but also orally. This applies to small things, for example, a telephone, a small amount of money. Written documentation is required only when it comes to real estate, expensive items, or in the case of a transaction where one of the parties is a legal entity. The distinctive features of a gift agreement from other documents are as follows:

1. The document does not contain any indication of the recipient’s obligation to place property or a sum of money at the disposal of the other party in exchange for the subject of the gift agreement.
2. The execution of the transaction is voluntary, and both the donor and the acquirer must agree to sign.
3. The conditions under which a gift agreement is canceled or declared void are regulated by law.

Conditions and rules for donating an apartment

Donating an apartment between loved ones is a responsible process where you need to think through every step. The owner of square meters must do this consciously, understand that after the transfer of the residential property the owner will change.

There should be no pressure from the receiving party; no money is paid when transferring property.

The basic rules include:

1. Only the owner can transfer a residential property.
2. This is a voluntary process.
3. A minor can accept an apartment, but not as a gift.

The same conditions are suitable for a donation agreement for a share in an apartment or the entire property.

Terms of the gift agreement

Although the recipient of the property does not acquire any obligations, the agreement on gratuitous transfer must contain a number of necessary points. Otherwise, the transaction may be declared invalid. The terms of the deed of gift are as follows:

1. The document must contain complete information about the transferred object. This could be the address of an apartment, house or land plot, cadastral number, location.
2. Time limit for transferring rights to property. The donor has the right to set any time for the transfer of property.
3. Conditions for the return of property or termination of the transaction. In the event of a deterioration in the financial situation or health, the donor may demand the return of the subject of the transaction, if such a provision is reflected in the contract.
4. When promising a gift, the contract must indicate the possibility of the recipient's heirs having rights to the property in the event of his death.

Differences in gifts to relatives and non-relatives

When preparing documents for the transfer of a residential property to another person, all owners must adhere to the same procedure regulated by law. When transferring an apartment to a relative as a gift, the seller is exempt from paying tax.

The tax is not paid if the square meters are transferred between the following relatives:

1. Parents transferring an apartment to their children.
2. Grandfathers and grandmothers passing on living space to their grandchildren.
3. Sisters and brothers who have a common parent.
4. The adoptive parent transfers real estate to the adopted person.
5. Spouses.

If brothers and sisters are cousins, or property is transferred to nephews, payment of tax is mandatory. This is the difference between gifts to relatives and non-relatives.

The tax amount is 13% of the total amount of real estate.

Parties to the gift agreement

Each grant agreement can only have two participants. They are:

1. Individuals
   . An agreement between the parties can be signed if both participants are adults and have legal capacity.
2. Legal entities
   . Organizations and individual entrepreneurs can act as participants in the donation. Moreover, if both parties to the transaction are commercial enterprises, the value of the gift cannot exceed $40.
3. State
   . Can act as a donor under any conditions.

Who can be a donor?

If we are talking about individuals, then to conclude a transaction it is necessary to meet the following conditions:

1. The donor must be an adult. Children under 18 years of age are not entitled to enter into gift agreements, even if they have the right of property.
2. The donor must have legal capacity at the time of signing the agreement. If, after concluding an agreement, it is proven that the person was not aware of his actions, the transaction will be challenged.
3. The donor must have ownership of the thing being transferred. If we are talking about real estate, a car or a plot of land, it is necessary to confirm that the property actually belongs to the person.
4. A gift agreement may be concluded between close relatives. They are considered children, parents, grandparents, brothers and sisters. Other relatives are treated as strangers by law.

Who cannot be the recipient?

Almost any person can take possession of property, but there are a few exceptions. The recipient cannot be:

1. A civil servant or official, if the gratuitous transfer of property is related to the position held.
2. An employee of a medical, educational or social protection institution, when the donor is a patient or a supported person.
3. Foreign citizens and organizations, if the subject of the donation is a land plot located on the border territory.
4. A deed of gift to a relative or stranger who has not reached 18 years of age or has been declared legally incompetent is issued only with the consent of legal representatives.

Does the document have retroactive force?

An agreement on donating a share of an apartment to a close relative or donating all property has a retroactive effect. The agreement can be terminated out of court or in court.

Does the document have retroactive force? When drawing up a gift agreement, experts recommend simultaneously drawing up a termination agreement. The deed of gift is drawn up in writing and signed by both parties. If the document is certified by a notary, the cancellation of the deed of gift must also be certified by a notary.

If the owner decides to reject the gift agreement, the agreement must indicate:

1. When the contract was concluded and when it happened.
2. The main purpose of the document is to cancel the deed of gift.
3. When and on what date was the agreement signed?
4. Information about real estate transferred as a gift.
5. Number of copies.

It is important to indicate in the document what expenses the parties incurred and within what time frame they will be compensated.

The document has retroactive force even after registration. To do this, the former owner needs to submit an application to cancel the registration.

If the old owner understands that the reasons for termination are justified, but in fact it was not possible to terminate the contract, it is recommended to go to court. When submitting an application to the court, you must have substantial evidence of the reasons for termination of the agreement and attach it to the package of documents. For example, you can attach photographs or video materials or involve witnesses.

How to correctly draw up an agreement to donate an apartment to a close relative through the MFC

The transfer of ownership of real estate is carried out by concluding an agreement and subsequent registration with Rosreestr.

Donation is a type of agreement that records the transfer of ownership of real estate. Its difference from purchase and sale lies in the gratuitous nature of the transaction.

Drawing up a gift agreement is not particularly difficult, so you can do it yourself or with the help of a realtor or lawyer and submit a package of documents for registration to the multifunctional center.

The gratuitous nature of the transaction implies that the property is transferred without equivalent compensation from the donee. In addition, the law does not allow the contract to indicate the conditions upon the occurrence of which the transfer of ownership will take place: death of the owner, lifelong maintenance, etc.

The only requirement for drawing up a gift agreement is that it be in writing, unless we are talking about shares.

Note! If there is a donation of a share in the ownership of real estate, the transaction is formalized by a notary.

Details required to be included in the contract:

• the full name of the donor and donee or their representatives by law or by power of attorney;
• passport data of the parties, address of residence, SNILS data;
• information about the property - address, total and living area, floor, number of rooms;
• information about registered rights to the property - title documents - foundation agreement, certificate of ownership;
• powers of attorney of representatives or proof that the representative acts on the basis of the law;
• condition for registration of the agreement in Rosreestr for its entry into legal force;
• date and signatures of the parties.

ATTENTION! Look at the completed example of a donation agreement for an apartment to a close relative:

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Taxation when donating an apartment

The first expense that one of the parties will incur is real estate tax.

Since square meters are transferred under a gift agreement, the gifted person does not pay any money for housing. The exception will be tax.

When calculating tax, you need to use a standard formula; the interest rate depends on the subject. If the new owner lives in Russia for more than 6 months, or is abroad for more than six months, such a person will be considered non-resident. Accordingly, the tax amount will be 30% of the total value of the property received.

In all other cases, the tax amount when donating an apartment will be 13% of the total cost of the apartment.

Required documents

In order to register an agreement with the Rosreestr authorities, the applicant must provide the MFC with a strictly established set of documents.

The list includes:

• prepared and signed gift agreement;
• title documents for real estate - foundation agreement, certificate of ownership of real estate;
• cadastral and technical passport or other document confirming the inventory value;
• information about persons registered in the residential premises;
• if a gift agreement is concluded by one of the spouses, then the notarized consent of the other is required;
• if a minor child is registered in the living space, permission from the guardianship and trusteeship authorities is required;
• passports and their certified copies;
• receipt of payment of state duty.

Watch the video. We draw up an apartment donation agreement:

Submitting documents to the MFC: step-by-step instructions

First of all, an agreement is concluded according to the rules described above, and a set of documents that are mentioned in the agreement is also collected.

Next, you need to pay off all debts on utility bills and make sure that no one is registered in the apartment. The owner receives a certificate about this from the housing office.

After the documents and the contract have been prepared and the certificates have been received, you should make an appointment at the multifunctional center using one of the methods described, reserving the date and time for the transaction.

At the appointed time, both applicants are required to come to the multifunctional center, hand over documents and confirm their identity using their passport. An employee of the center will draw up an application for registration of the transfer of ownership, which will be signed by the parties, accept the documents and provide a receipt stating that the documents have been accepted by the authority. Registration of the transfer of ownership occurs within five working days.

After ten days, the parties can receive a signed and state-registered gift agreement and an extract from the state register of real estate rights, and the donee can also receive a certificate of registration of ownership.