Is it possible to donate an apartment with registered minor children?

Who can legally be considered a close relative?

Who are close relatives?
This concept, as well as a detailed list of those included in it, can be found in any regulatory acts of the Russian Federation. You should pay attention to some features of the interpretation of closeness among relatives. For example, SK in Art. 14 thinks:

1. Close relatives are parents and children, grandparents, grandchildren. These also include siblings and half-brothers, as well as adopted children with adoptive parents;
2. Husband and wife are not considered close relatives because they are not related by blood. They are only family members. In case of divorce, this status is also lost. The Criminal Procedure Code has a slightly different attitude to the issue of kinship.

Draw up a gift agreement in accordance with the Law

When drawing up a deed of gift, the following fundamental codes of the Russian Federation are used:

• Civil and Family;
• Land and Tax.

You should know that a plot of land and a house standing on it cannot be donated separately. You also cannot make a transaction on a house that is secured or mortgaged.

The conclusion of an agreement to donate a house is possible only in writing. There is no need to have the document certified by a notary. According to changes in 2013, land received as a gift does not need to be registered at the state level. The fact that the property now has a different owner is registered.

The agreement is drawn up in two copies; according to the rules, the donor and recipient of the deed of gift must have the originals of the document signed by both parties.

How to issue a deed of gift for an apartment for a minor child

1. Is it possible to issue a deed of gift for a minor child? The law does not contain any prohibitions on issuing a deed of gift for an apartment (or other living space - a residential building, room) to a minor. You can issue a deed of gift, but subject to a number of conditions, which will be discussed below.
2. Donation after death. It is unacceptable that the gift passes to the child only after the death of the one who gave it. Such a transaction is void. If you want the property to pass to the child after death, draw up a will.
3. Donation of joint property of spouses. If the living space that you plan to donate was purchased during marriage and is registered in the name of one of the spouses, then you will need to visit a notary to obtain the consent of the second spouse.
4. Gift with conditions. Conditional gifts are not permitted. You cannot demand anything in return for what is given.

This is interesting: Where to get a certificate of registration in a private house in Kemerovo

Donation is a fairly common real estate transaction among relatives or close people. Its essence is that the donor transfers or undertakes to transfer real estate belonging to him into ownership free of charge to another person.

Some nuances

The procedure for donating a house to a close relative in the Russian Federation has its own characteristics that citizens should be aware of.

A plot of land can also be transferred by a power of attorney certified by a notary.

It must indicate the passport details of the person to whom the gift is made, and indicate the specific site.

Please note: donating a house separately without a land plot is impossible!

You can draw up a deed of gift for a house with land in different ways:

• donate the entire property;
• allocate some part of the house and a share of the land;
• donate a share of the house, indicating specifically the premises that will go to the recipient;
• You can register a deed of gift as shared ownership by specifying several people in the agreement.

You can use other gift options that are available in the relevant legal documents.

How to give a share in an apartment to a minor child

The requirement to carry out registration activities applies to all types of transactions with real estate assets, including shares in housing. To register, citizens can choose one of the following methods of application:

1. type of property - apartment;
2. characteristics of the object of law - share in the apartment, its size as part of common law;
3. unique cadastral number;
4. technical characteristics of the share and residential premises - footage, number of storeys, type of house, etc.;
5. object location address.

10 Jun 2020 lawurist7 201
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Is it possible to donate an apartment with people registered in it?

Today, all issues related to the implementation of a gift transaction are within the jurisdiction of civil law.

Chapter 32 of the Civil Code of the Russian Federation is entirely devoted to issues of donation. Therefore, it is more reasonable to turn to this legal act to answer this question.

The Civil Code states that it is necessary to prepare real estate for donation. Namely, to remove all encumbrances and liens from her, and, if possible, to discharge registered persons.

However, if it is not possible to carry out this action, or you simply do not have time, then such a factor is not grounds for canceling the transaction.

Attention! If registered people find out that the owner has changed, it means they will not be able to properly use the property and may go to court.

In a number of situations, they may be recognized as victims, which means that the transaction may be canceled by law.

But what if you were given an apartment with a registered person? We will consider the procedure in detail later in the article.

Real estate donation agreement with registered minor children

It is almost impossible to donate real estate in which minor children are registered. It turns out that their parents can easily go to court and cancel the deal, because it turns out that the owner of the property literally left the child on the street.

But what to do in a situation where the owner urgently needs to sell the property, and such an encumbrance as the presence of children makes donation impossible?

Of course, there is a procedure for this, although it is somewhat complicated. You should first try to come to an agreement in a conversation with the children's parents. You need to convince them to give their written consent to make the gift.

If the mediation procedure cannot be carried out, that is, the parents are categorically against your desire to donate the property, then, accordingly, you can try to go to court.

You must discharge the person to the court. To do this, you must indicate who you need to write out, and also indicate the basis that will be significant.

For example, you want to sell real estate because you have become bankrupt, which means you need cash. The court will make a decision that will be binding. The decision can be made either in your favor or vice versa, against your consent. Be that as it may, you must be prepared for any turn of events, and if the decision categorically does not satisfy you, you can appeal to a higher court.

Is it possible or not to issue a deed of gift for a house if people are registered in it?

A party that unreasonably evades state registration of the transfer of ownership must compensate the other party for losses caused by the delay in registration.

• the legal capacity and majority of the owner of an apartment or other real estate;
• fulfillment of the condition of absolute voluntary action of the donor in relation to his property.

Having found out whether it is possible to donate an apartment if a minor child is registered in it, you should talk about how to do this.

How to give? Instructions on how to donate an apartment with registered people in it: First, you need to discuss the donation of an apartment with registered people and with the recipient - you cannot do without their participation, because personal documents will be required.

Disclosure can only be avoided if the recipient is a child, whose official papers can be disposed of by one of the parents or guardian.

What to do in such a situation.

Expert, director of the Linsat Real Estate Agency Rakhimov Bakytzhan Gazimovich advises: “I believe that you should not accept real estate as a gift from such a person, since you may subsequently be drawn into litigation. Older people, often emotional: they can change their mind several times, they seem to get along, then because of something they get offended by the children and cancel their decision.

The court, as a rule, is loyal to the elderly.

Is it possible to challenge a deed of gift for an apartment and on what grounds? The possibility of canceling a donation in this case is confirmed by expert Rakhimov Bakytzhan: “Article 512 of the Civil Code provides for cases when a donation is canceled and, accordingly, the gift is returned. If this is due to the recipient’s improper handling of the donated item and there is a threat of irretrievable loss, then the gift agreement can be canceled in court.”

Attention

In your case, one definitely won’t do it, I guarantee it. If there are difficulties in any of these stages, a lawyer can do it for you (i.e.

It is not necessary to involve a lawyer in everything; if you put everything together yourself and he just writes a claim, then it will be inexpensive, but it will be written legally correctly) Is it possible to draw up a deed of gift if another person is registered in the house? 1 answer. Moscow Viewed 101 times.

Asked 2012-11-19 14:57:42 +0400 in the topic “Real Estate” How to correctly draw up a deed of gift for a house and land not from a relative? — How to correctly draw up a deed of gift for a house and land not from a relative.

what happens to minor children and disabled children. It is a clear proposal to place the draft Law dated 02.12.2015 No. 2118 “On amnesty in 2020”, which the Committee for Legislative Security of Law Enforcement Activities recommends to the Verkhovna Rada to adopt as a basis, “ZiB” was informed by the Verkhovna Rada.

Deed of gift with a registered person

And, accordingly, such agreements are concluded mainly between “friends”: spouses, relatives or very close friends. It is in these most common cases that the gratuitousness of the transaction does not hide a “double bottom” - we are really talking about a gift that does not bring any material benefit to the donor.

Important

In general, the law allows you to give real estate to almost anyone: individuals and legal entities, and even the state of Ukraine or the Autonomous Republic of Crimea. There is only one restriction: a parent, guardian or adoptive parent by law does not have the right to donate property to their children and/or wards.

How can I draw up a deed of gift if there are registered people?

In situations where a gift agreement is drawn up between strangers and not relatives, the transaction is subject to a 13% tax on the price of the transferred property. The second big drawback of the transaction in question directly follows from its gratuitous nature. Based on this circumstance, it is much easier to invalidate the deed of gift.

Of course, not every deed of gift can be defined as insignificant. However, if a transaction is concluded between a healthy person and, for example, an elderly owner who could draw up a deed of gift without fully assessing the consequences of his actions, the agreement can be challenged in court.

Thirdly, a deed of gift belongs to the category of unconditional transactions. The bottom line is that when transferring his property, the owner does not have legal grounds to impose any kind of encumbrances on the object of the transaction.

Deed of gift for a house: pros and cons

In it, one of the parties, which is called the donor, transfers real estate (apartment) belonging to it into the ownership of the other party, which is called the donee, absolutely free of charge. Gift deed for a minor? Will I be left with nothing when my son turns 18? Weird question.

The apartment was purchased during marriage, it is legally considered the joint property of the spouses, and it does not matter which spouse it is registered to. You legally own half of this apartment! Why you and your husband did not share it is not very clear to me. Property disputes are resolved within three years after the divorce according to the law.

So think carefully again. The house has been built, it’s about to be handed over, and the acceptance certificate needs to be signed. And my husband went on a business trip. And then the construction company called and said: “We built your apartment two meters more.” Would you like to come to us and pay for these two meters?

It really was like that at one time. The developers even stipulated in the DDU that if after measurements it turns out that the apartment is larger by a certain number of meters, then the shareholder undertakes to pay extra for them.

My husband, I repeat, is on a business trip, the developer is in a hurry. The husband calls his wife and says: “Take the money in the nightstand and pay.”

The wife goes, pays for these two meters, and receives a payment in her name.

Then, I think, everything is clear to the quick-witted reader. Website about real estate Since we are talking about donating an apartment, then, like any real estate transaction, it is notarized and is subject to mandatory registration with the justice authorities.”

Donation of an apartment (deed of gift), share in an apartment, room with the right of lifelong residence. An exception to these rules are persons (citizens) who, at the time of privatization of the apartment, were registered at the place of residence (“registered”) in this apartment, but at the same time, in privatization the apartments did not participate, that is, they refused privatization in favor of their relatives, for whom the apartment was privatized. Such citizens automatically have the right to live in this apartment for life until they are “discharged” at their own request from privatized housing. Firstly, if the donor of an apartment of retirement age is “registered” in this apartment and he no longer owns other residential real estate, no one will be able to expel him from there, even in court. 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.

• A promise to transfer a thing or property right to someone free of charge or to relieve 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 make a gratuitous gift in the future. transfer of a thing or right to a specific person or release him from a property obligation. A promise to donate all of one’s property or part of one’s entire property without indicating a specific object of donation in the form of a thing, right or release from an obligation is void.

Agreement on donation of an apartment: form, sample filling. Is it possible to donate an apartment with registered minor children? Accommodation in an apartment for minors, incl.

and the factual one also does not prevent the donor from exercising the right to donate an apartment with a registered child. A minor owner of real estate does not have the right to gift it to an individual or legal entity, even with the assistance of a guardian.

The gift agreement has legal force if:

• carrying out state registration of the document (in accordance with Article 551, paragraph 1 of the Civil Code of the Russian Federation) - otherwise the alienation of property will be declared invalid; Civil Code of the Russian Federation Article 551.

• Gift deed for an apartment
• What are the features when buying an apartment with a registered person?
• Deed of gift with a registered person
• Is it possible to do this somewhere with registered people with a deed of gift?
• Deed of gift and long-registered people
• Is it possible to issue a deed of gift if another person is registered in the house?
• Agreement for donation of an apartment or deed of gift for an apartment Donation of an apartment (deed of gift), shares in an apartment, room with the right of lifelong residence

Deed of gift for an apartment Lyudmila Goliy, a private notary of the city notary district of Kyiv, spoke in detail about how correctly and legally it is now possible to donate real estate.

Source: https://lcbg.ru/mozhno-ili-net-oformit-darstvennuyu-na-dom-esli-v-nem-propisany-lyudi/

In what cases is it necessary to obtain the consent of other residents? How to register it?

If there are no minors among the registered persons, then you can make a donation without obtaining the appropriate consent. You can present the tenants with the fact that you are going to carry out a transaction. They must accept this fact.

However, if you are not the owner of the entire property, but only a share of it, then you must obtain consent not only from the owner of the other shares, but also from the registered persons.

After all, it turns out that by carrying out your transaction you will cause them damage, and perhaps they are not ready to see the future donee as the new owner.

You will need to gain their support and consent.

Features of the approach to deed of gift

Samples of deed of gift have a standard form.

It contains all the necessary information:

• date and place of the transaction;
• full passport information about the donor and donor;
• cadastral data of the house and plot indicating the exact address and area, number of rooms;
• certificate of ownership of the house and land (with all details), confirming the absence of encumbrance on third parties.

People with psychological health problems (even if they are close relatives) cannot receive land as a gift.

Please note: to avoid any complications in the future, you must listen to the advice of lawyers involved in the preparation of documents.

Features and nuances of donating a share in an apartment to minor children

• causing harm to the life and health of the donor to minors;
• threats or misrepresentation to obtain a gift;
• incapacity of the person transferring the gift;
• inability to understand the consequences of a transaction at the time of its completion;
• a sharp deterioration in financial condition immediately after the gift was made for reasons beyond the donor’s control, etc.

Is it possible to donate a share in an apartment if a child is registered in it? It is possible to give as a gift part of the living space with a minor registered in it.

Package of documents

To carry out a transaction, you need to contact the Federal Registration Service at the location of the object. The citizen will be provided with a list of necessary documents that will be required.

The document folder is quite large:

1. Passports of the donor and recipient.
2. Certificate of ownership of the house and land that will be donated. You cannot do without a receipt for payment of the state duty on the right of ownership.
3. The donor writes a statement that the rights will be transferred to another person. A citizen who receives a house or a share of it also needs to write an application. It concerns the registration of rights to acquired real estate.
4. Gift deed for the house. When a notary helped draw up the gift agreement, then in addition to the original, a copy will be required. If the notary did not take part in the preparation of the documents, the originals are also needed, as well as the original establishing the right to the transaction.
5. Cadastral passport for a house and land plot (not given separately).
6. If, in addition to the donor, other relatives live in the house (joint property), then they must write a consent to the donation and have it certified by a notary.
7. For an inventory assessment of the house, you will need a certificate from the BTI.

If the citizen in whose name the deed of gift is drawn up has not reached the age of majority or is incapacitated, then a guardian or trustee must be present during the transaction.

After the residential building is officially transferred to a close relative, he becomes its authorized owner, owner.

Please note: the gift agreement may be refuted. This can happen when, after transferring the property, the donor's standard of living has deteriorated. This cannot be allowed.

Deed of gift for a house

One of the most popular transactions with real estate, namely, with a house and the adjacent land plot, is the preparation of a deed of gift for the house.

A gift agreement, also known as a deed of gift, is most often drawn up between close relatives.

In what cases is it recommended to draw up a deed of gift, and when is it better to write a will to transfer a house, read below.

What is a deed of gift for a house?

A deed of gift is a written document that confirms the fact of transfer of property (in our case, a house), as well as rights to it from one person to another.

A deed of gift can be issued to a close relative, friend, or to a stranger.

After signing such an agreement, the parties cannot make any claims to each other regarding the subject or terms of the deed of gift, since the document comes into force immediately from the moment of its signing.

Which is better: a deed of gift or a will for a house?

A will is a disposition made by an individual in the event of his or her death. During his lifetime, the testator can change the will, revoke it, or make a new one.

A gift agreement is a bilateral agreement under which the donor transfers property to the recipient free of charge . The right of ownership to the donated property arises from the moment of its acceptance.

When donating a house, ownership can arise either upon receipt of a donation agreement by the recipient, or upon receipt of the keys to the house (at the discretion of the parties). The gift agreement cannot be canceled only by the donor unilaterally.

A will does not provide any guarantee to future heirs, as it can be changed or revoked. But the gift agreement does not provide a guarantee to the donor, since after transferring ownership of the house to another person, there is a possibility of being left homeless.

In this case, especially older people, you need to be more prudent. It is necessary to take into account who will receive the property, and whether the attitude of the recipient to the donor will change after receiving the house.

Any contractual relationship must be built on personal respect, trust of the parties and confidence in the favorable consequences of their actions. If there is no such certainty, then it is better to make a will.

It is impossible to say unequivocally what is better to draw up: a gift agreement or a will, since it all depends on who the benefit is sought for.

The pros and cons of deeds of gift and will for a house are presented in the table below:

A deed of gift will be better for the person to whom the house is left, because then the rights to the house will be transferred immediately after signing the agreement, because in the case of a will, the testator can rewrite the will at any time.

Features of registering a deed of gift for a house between close relatives

If a person wants the house to be registered in the name of a close family member (wife, son, daughter, parents), then the best option would be to issue a deed of gift. The fact is that in this case the recipient will not have to pay tax on income from the received real estate.

Also, the process of drawing up a gift agreement does not require compliance with rules such as notarization.

A person who wants to donate a house can independently draw up a deed of gift for a close relative without a notary. The main thing is that the contract is correctly and competently drawn up.

However, lawyers still advise not to neglect the services of a notary, since there are situations when one of the parties loses its copy of the deed of gift . In this case, she can contact the notary and ask for a copy of the agreement.

You should not be afraid of registering a deed of gift if a trusting relationship has developed between relatives and the donor is confident that after the transfer of ownership of the house, the attitude towards it will not change.

The disadvantage of a deed of gift is that after signing the agreement and transferring ownership rights to the name of the new owner, the old owner will no longer be able to change his decision.

For example, if the donor and the recipient quarreled, the donor had a desire to return the house to his possession, then he will not be able to do this.

The deed of gift for the house does not need to be registered with government agencies, as was the case before 2020. Now you only need to register the fact of transfer of ownership of the housing.

Deed of gift for a house between people who are not relatives

Very rarely, a gift agreement is drawn up between people who are not close relatives.

And all because when registering a deed of gift between strangers, the donor loses one important advantage - he will have to pay a tax of 13% of the value of the house.

How to issue a deed of gift for a house: step-by-step instructions

In order for the house to pass into the possession of another person, you must follow these recommendations step by step:

Step 1

The donor must discuss the subject of the gift and the terms of the agreement with the recipient.

Step 2

The donor must contact the Federal Cadastral Chamber and request the issuance of a cadastral passport for real estate (house).

Step 3

After receiving the cadastral passport, the donor must draw up a gift agreement in the presence of the recipient. You can write it yourself or type it using a computer. You can have it certified by a notary, or you don’t have to do it.

Step 4

After signing the agreement, the parties to the transaction collect the necessary package of documents, which are attached to the agreement.

The enclosures are the following documents: cadastral passport, cadastral register (taken from the BTI), consent of the spouse to draw up a deed of gift (if the house was bought when the spouses were already married), an extract from the house register about the number of people registered and their data, as well as other additional documents (for example, a power of attorney, if the interests of the recipient are represented by someone else, etc.).

Step 5

Pay the state fee at the place of registration of the contract.

Step 6

Copies and the original of the donation agreement, along with a package of documents (appendices) and a receipt for payment of the state duty, must be submitted to Rosreestr or the MFC.

Step 7

2 weeks after submitting the documents, the deed of gift will be formalized accordingly. The recipient needs to come to the relevant authority and receive the completed documents.

How much does it cost to issue a deed of gift for a house in 2020?

It all depends on who the recipient is to the donor and whether the deed of gift was drawn up in the presence of a notary or not.

So, if we are talking about registering the right to transfer a house, then it is necessary to pay a state fee in the amount of 2 thousand rubles for a residential building.

If a plot of land is also attached to a residential building, then you need to pay 350 rubles for it separately. If the contract was drawn up by a notary, then the amount of the state fee may be increased, because the notary’s services are also paid.

What documents are needed to formalize a deed of gift for a house?

In order for the parties to the transaction to correctly formalize the deed of gift for the house, they will be required to provide the following documents (originals and copies):

• civil passports of the parties to the agreement;
• gift agreement in 3 copies;
• documents for the house: certificate of state registration. registration, cadastral passport, house plan, extract from the house register;
• application by the parties to the agreement with a request to register the transfer of ownership of the house.

In some cases, additional documents may be required, for example:

• permission of the second spouse to donate the house to a third party;
• a prenuptial agreement stating that the rights to the house after divorce will belong to the husband (wife).

Is it possible to revoke a deed of gift for a house?

Revocation of a deed of gift, from a legal point of view, can mean 2 options:

1. The process of canceling a gift.
2. Invalidation of the deed of gift.

The possibility of revoking a deed of gift is regulated by Art. 578 of the Civil Code of the Russian Federation. Thus, the donor can revoke the deed of gift if:

• the recipient made an attempt on his life or on the life of a family member of the donor;
• the recipient caused bodily harm to the donor;
• the recipient took the life of the donor. In this case, the donor’s heirs have the right to initiate the revocation of the deed of gift for the house;
• the recipient does not take care of the house, does not monitor it, and also if his actions create a threat to the loss of the house;
• the donor will survive the recipient (this point must be indicated in the deed of gift).

The deed of gift can be revoked only in court by filing a statement of claim with the court at the location of the object of the donation (house).

Is it possible to cancel a deed of gift if the parties to the transaction are unanimous?

Yes, you can . If the deed of gift for the house was drawn up by a notary, then you need to contact the notary who certified it and ask to draw up a reverse agreement on the annulment of the deed of gift.

If the deed of gift was drawn up without the participation of a notary, then the parties to the transaction need to apply to the court with a request to cancel the deed of gift.

Is it possible to challenge a deed of gift for a house?

A deed of gift for a house is usually contested by the relatives of the donor after his death. Challenging occurs by filing a claim in court. A judge will consider a case challenging a donation agreement for a house only if the plaintiff has grounds for doing so.

The following may serve as grounds for declaring a contract invalid:

• proof that the donor was misled by the recipient by using threats against him;
• proof that at the time of the conclusion of the deed of gift the donor was an incapacitated person;
• evidence that the deed of gift was forged (for example, the donor’s signature was forged);
• the fact that the gift agreement was drawn up in order for the parties to the transaction to avoid additional financial burdens, and a purchase and sale transaction was disguised under the guise of a gift agreement;
• lack of consent of the second spouse to donate the house (if the house was purchased during marriage).

Within what period can a deed of gift be contested?

According to Art. 181 of the Civil Code of the Russian Federation, the limitation period for the invalidity of a deed of gift is 3 years. This period begins to count from the moment the gift agreement comes into force.

However, the statute of limitations may be extended if the interested party knew nothing about the fact that the donor had drawn up a deed of gift for another person.

In this case, the period for filing a claim to invalidate the transaction may be extended to 10 years . After this period, it is almost impossible to challenge the gift agreement.

Is it possible to draw up a donation agreement for a residential building if the donor plans to live in the house?

Yes, a deed of gift can be issued, but you need to understand that if the recipient receives documents for this house, he will dispose of it at his own discretion.

If the relationship between the donor and the recipient deteriorates, then the latter has the right to kick the donor out of his home.

Therefore, in order to insure himself in this case, the donor must include a clause in the gift agreement, according to which he will have the right to live in a residential building until the end of his days.

In this case, the donee will not be able to kick out the donor because he agreed to the terms of the deed of gift and signed it.

Deed of gift for a house with an encumbrance

It is possible to issue a deed of gift for a house that is under mortgage, under arrest or with rent, but this fact must be stated in the deed of gift itself. In this case, the recipient receives not only the donated property, that is, the house, but also the encumbrance itself.

If the house is under a mortgage, then in order to formalize the deed of gift it is also necessary to obtain the bank’s consent to the transfer of ownership of the house. Otherwise, the transaction will be considered invalid.

A deed of gift for a house is an agreement between two persons: the donor and the donee regarding the fact that the property is transferred to the person for free use.

Many people mistakenly believe that a deed of gift can be easily revoked or annulled . However, in practice this is not the case. In order to recognize such a transaction as void, it is necessary to collect evidence on which the judge can cancel the contract.

A deed of gift, unlike a will, is almost impossible to cancel or change . However, a donation is completed faster and easier, unlike a will.

Source: https://expert-nasledstva.com/darstvennaya-na-dom/

Is it possible to expel the donor from the donated apartment?

If we turn to theory, donation is the act of gratuitously transferring property from one person to another. In other words, from the moment the gift is accepted, the recipient becomes its full owner and can dispose of the received property at his own discretion: sell, rent, use according to his needs, etc. Consequently, the new owner has the right to evict its previous owner from the apartment, but only if the latter does not have the right of lifelong residence.

What may be the grounds for registering the donor?

1. Possible sale of the apartment by the new owner. Registered persons complicate the sales procedure, and sometimes even reduce the cost of housing.
2. The previous owner does not live in this apartment, violates public order or does not fulfill the responsibilities for maintaining the housing, including not paying utilities.

Important! In some situations, the donor may cancel the transaction. For example, if his financial situation or living conditions have worsened, if the recipient threatens the donor or his family, or if the recipient of the gift kills the former owner of the apartment (in such a situation, the cancellation of the transaction is initiated by the relatives of the donor).

In addition, it should be taken into account that since donation is a gratuitous transaction, counter conditions cannot be put forward in the contract, such as exchange for other property or obligations. In this case, the transaction may be declared sham or invalid.

Possible difficulties

There are pitfalls in any process, and deregistration is no exception. It will not be possible to remove minor members from the donated apartment unless they are provided with another home in return.

It will be possible to cancel the registration only by proving to the judicial authority that the minors have another place to live. At the same time, minors will not be able to be discharged until they turn 18 years old in any type of residential facility. This is the most difficult and practically unprofitable procedure.

In general, any extract presupposes that the citizen has another place to live. If he is not there, then the court may offer to provide him with such housing or collect evidence that there is a place where he can be registered.

We suggest you read: Is it possible to register the ex-wife of your home?

There are also situations when the court decides that a relative will temporarily stay in the plaintiff’s living space until he finds a new home. However, in practice, such a wait can drag on for a long time, because this relative may not even try to find something.

In the case of privatized housing, if the registration process took place when the spouses were already married, and one of them refused privatization in favor of the second, this does not provide grounds for discharge. The only option for deregistration is his voluntary consent. Some women, during a divorce, exchange the statement for a refusal to file alimony for the spouse.

In any case, it is always difficult to discharge a person from a living space without his consent, but it is possible. For a successful result in such a case, you need not only a competent approach, but also a well-trained lawyer.

The features of donating a share in an apartment are discussed in the article: donating a share in an apartment. The procedure for remodeling a studio into a one-room apartment is described here.

Read about what needs to be done to re-register a cadastral passport here.

Reasons

The very possibility of deregistering the donor is defined in Article 292 of the Civil Code of the Russian Federation (clause 2). In this case, a transfer of ownership occurs, and only on this basis the new owner has the right to deprive the donor of registration. Of course, provided that he is not his close relative. However, relatives can also be discharged if desired. So, for example, he can be deprived of registration if such a relative:

• Doesn't pay for utilities.
• Uses the apartment for other purposes.
• Disturbs public order.
• Does not live permanently in this apartment, and so on.

Once again, it is worth clarifying the fact that if the donor is not a relative and does not have any other rights to this housing (for example, the right of lifelong residence), then he can be evicted from the apartment on the basis of the above paragraph of the law. There is no need to put forward additional reasons for this.

Regardless of the grounds and features, for eviction and discharge you will have to go to court and receive an appropriate decision. An exception is made only for persons serving in the army or serving a sentence.

Example : The donor is not a relative and for some reason wants to make the recipient happy with his apartment. He draws up a gift agreement and transfers ownership rights to another, completely stranger, individual. At the same time, the donor does not want to move out. The recipient, having received the gift, does not think of refusing it, but does not want to live with the donor. After spending some time and going to court on the basis of Article 292 of the Civil Code of the Russian Federation, the new owner gets the opportunity to evict such a person.

It should also be remembered that under certain conditions the donor has the opportunity to take back his gift. Most often, this is a sharp deterioration in the financial situation, a direct threat to the life of the donor from the recipient (or even murder, in such a situation the procedure for canceling the gift is initiated by the relatives of the deceased), and so on. Thus, before starting the procedure, it is worth checking how this will affect the donor, and whether this will give him the right to cancel his gift.

Separately, it should be noted that the donor can, of his own free will, check out of the apartment, but in this case this is not relevant, since the recipient does not have to do anything at all for this. In practice, most often the forced deregistration of a donor is carried out when this person simply does not want or cannot engage in the voluntary deregistration procedure (for example, he works in another city, has disappeared, and so on).

Time limits for challenging

It is necessary to understand all the responsibility that a person assumes when drawing up a gift agreement. If a mother or father has written a will stating that after their death the property will pass to their children, this means that while they are alive, they are the rightful owners of the apartment or house. The execution of a gift agreement means that they are depriving themselves of property rights and only through the court, under certain circumstances, will they be able to return it back.

We invite you to read: Agency agreement for cash acceptance

Eviction of the donor from the donated apartment

If the donor is registered in the apartment he is donating, eviction is possible only by court decision. But if the donor is not a relative of the donee, then it’s easy to evict him, because he does not have the right to live in an apartment.

The relatives of the donor (Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14) include:

• Persons living together in the apartment (spouse, children, parents).
• Disabled persons who live with the donor.
• Other relatives (grandparents, brothers, sisters, etc.).
• Other persons who live with the donor (unregistered marriage, etc.), if they moved into the apartment as family members.

In any case, with a problem you need to contact qualified specialists who will weigh all the nuances, all the pros and cons and find the right way out of the current situation. Call 8-800-500-61-85 and find out how to sign the donor out of the donated apartment.

Can a registration remain with a donation?

The testator can dispose of his property or any part of it by drawing up one or more wills. Moreover, he is not obliged to inform anyone about the contents, execution, change or cancellation of the will. Unfortunately, this document also has disadvantages: freedom of testament is limited by the rules on compulsory share in the inheritance. Namely: minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator who are subject to inheritance, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law. Despite the great advantages of a will, citizens prefer to donate their real estate to relatives during their lifetime.

How long will it take to register the donor?

If the donor voluntarily checks out of the apartment, then this procedure will not take much time: usually no more than 3 days. However, sometimes the period may be longer if the deregistration occurs simultaneously with a new registration or through a proxy. If the donor does not want to cancel the registration, the case will be heard in court. In this case, the extract will take much more time, and it is not a fact that the court will make a positive decision.

Example. An elderly aunt wrote a deed of gift in favor of her niece, indicating in the contract a condition that allowed her to use the living space for life. The niece, having settled in the apartment, began to demand that her relative leave the premises on the grounds that she was the sole owner. The aunt did not agree, and the recipient had to go to court. The verdict of the assessors: “Refuse the plaintiff, since the contract stipulated the condition of lifelong use of the apartment.”

Procedure

The procedure presented below and all the features of the procedure take into account the fact that the donor refused to voluntarily check out of the apartment he donated and the fact of his deregistration does not give the person any opportunity to terminate the gift agreement. In this case, it is not particularly important whether the donor is a relative or not. It’s just that if he is still a relative, the package of document evidence will be a little more extensive. Instructions for registering a donor:

1. Register ownership of the received housing.
2. Prepare evidence documents for the eviction of the donor.
3. File a claim.
4. Submit the claim and documents to the court.
5. Pay the state fee.
6. Get a court decision.
7. Based on the decision to expel the donor from the apartment.

Agreement for the donation of an apartment with the right of lifelong residence of the donor

Any property encumbrance is a serious obstacle to the disposal of the gift. But receiving a valuable gift absolutely free with a minor caveat is worth the sacrifice. how to donate an apartment and stay in it This is quite simple to do in practice. It is enough to correctly draw up a regular deed of gift.

Transferring property to a third party and retaining the right of use is absolutely not an obstacle to concluding a gift agreement.

In case of donation, what rights do other relatives registered in the apartment have?

residential premises in accordance with its purpose and the limits of its use, which are established by this Code.

2. The owner of residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, an agreement for gratuitous use or on other legal grounds, as well as to a legal entity on the basis of a lease agreement or on other legal grounds taking into account the requirements established by civil legislation and this Code.

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How the process works

Let's take a closer look at the entire process described above. Registration of property rights must be the first step without fail, since without this registration the donee still has no rights to evict anyone. To register your property as a property, you must contact any branch of Rosreestr with your passport and gift deed.

The next stage is negotiations with the donor. First you need to try to convince him to check out “in an amicable way.” At least in order to accurately understand the impossibility of this. Further, if a refusal follows, it is necessary to file a claim against the former owner of the apartment with a requirement to check out voluntarily on the basis of current legislation. This is usually given 1 month or more, at the request of the applicant.

The claim must be submitted either in the presence of a witness or by registered mail. The new owner must have confirmation of the fact that the claim was transferred. Formally, you can try to do without it, but then the court will have a completely logical question: has the new owner tried to solve the problem pre-trial. And if not, why not? Words that the recipient had conversations and asked to be discharged will not be taken into account. Every action and word must be documented.

If there is no response to the claim within a month or the donor immediately refuses to comply with the requirements, you can prepare a claim and go to court. This document is quite difficult to draw up, because you need to take into account all the features of the legislation. You can use the sample below as a basis, but it is always better to seek help from an experienced lawyer. So the risk of missing or, conversely, indicating something important tends to zero.

At the same time as preparing the claim, evidence should also be prepared. Their list can be very extensive and directly depend on the current situation.

Example: If the donor is not a relative and does not have the right to live in the apartment in question, it will be sufficient to confirm the transfer of ownership (donation agreement, new extract from the Unified State Register, etc.). But if the donor has the right to live in an apartment, then he will have to prove that, for example, he does not pay for utilities, uses the housing incorrectly, and so on. Let us remind you once again that no one will believe anyone’s words. We need documentary evidence, photographs, videos, checks, receipts, and so on.

After filing a claim, you will have to wait until a court hearing is scheduled. It is highly recommended to attend in person. As practice proves, this way you can influence the court’s decision and, most likely, turn it to your advantage if something goes wrong.

After the hearing, the court will make a decision. But you cannot use it right away. Participants in the court are given 1 month to challenge such a decision, therefore it comes into force, as you might guess, only after 1 month.

Only now, having in hand a court decision that has entered into force, can you contact the MFC (My Documents) and demand that the donor of the apartment be forcibly discharged. After deregistration, the donor must be informed about this and required to leave the apartment. If he refuses, you can contact the bailiffs or the police.

By type of housing

A municipal, privatized, donated or bequeathed residential property has its own characteristics when canceling registration from a citizen who does not agree with such cancellation.

In municipal housing, all citizens registered in its area have equal rights to use the facility. Which of them is the main tenant does not matter.

In this case, there are three key grounds for discharge:

1. Use of real estate for purposes other than its intended purpose. For example, setting up a beauty salon or other commercial facilities in a residential building.
2. Disturbing the peace of neighbors, destroying premises, causing irreparable damage to housing.
3. Lack of utility payments, long-term non-residence at the specified address and availability of other housing.

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In order to discharge a citizen from the municipal square, the first step is to accumulate evidence of the occurrence of the above situations. After this, a complaint is filed with the municipality, using the collected evidence base.

He is reprimanded and asked to stop his inappropriate behavior. If, after these manipulations, brawls and scandals continue, you should go to court and file a claim to cancel the registration.

However, in practice, the judge will grant the plaintiff’s application only if the defendant has another home where he can be registered. Moreover, it must be his property. If he does not have another apartment, it will be almost impossible to discharge him.

If one of the members of a municipal facility does not pay for utilities, then it will be possible to discharge it, but it will not be easy to do. In the absence of payments, it is the main employer who suffers first.

The judge will consider the case in favor of the plaintiff if at the same time there are no payments, the defendant does not reside at the address for a long time and the fact that he has other property. Divorce also does not become a basis for discharge. In this case, it will be possible to cancel the registration only by agreement with the former spouse.

The easiest way is to discharge your ex-wife or husband from an apartment purchased or privatized before the wedding. Although this happens through the court, the procedure is simple and quick.

If the acquisition took place during marriage, this will not be easy. Even if the owner is only one of the spouses. He has no rights to dispose of property, but he can live in the apartment according to the law. After all, after a divorce, all property is divided in half.

If the defendant does not come to the hearing, this does not mean that the judge will immediately declare the case won in favor of the plaintiff. On the contrary, the procedure threatens to drag on for many years. However, after a certain period of time, if the defendant never attends the hearing, in the end the judge will still rule in favor of the plaintiff. Here you just need to be patient.

Deregistration of a citizen from a privatized home requires an individual approach to each individual situation.

Here things are much simpler. The legislation regulates this issue in favor of the new owner to whom the residential property has been gifted or bequeathed.

The procedure looks like this:

1. First, a petition for deregistration is drawn up. It is better to use the services of lawyers for this, because the literacy of the claim is very important.
2. Then the claim is transferred to the judicial authority where the residential property is located.
3. During the court hearing, the judge is obliged to make a decision to terminate the right to use the living space of those for whom the application was made.

If the deed of gift was drawn up by the spouse, then it will be possible to write it out only in the event of an official divorce. One month is given for discharge after the court decision is made.

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Statement

The statement of claim for the donor’s expulsion from the apartment must comply with Article 131 of the Code of Civil Procedure of the Russian Federation and include the following information:

• Header: this describes who is sending the application, where and regarding whom (who will be the defendant in this claim).
• Main part: This section describes the current situation.
• Requirements: here the applicant proves that he is right and puts forward specific demands on the defendant.
• Attachments: here is a list of documents attached to the claim, including the evidence base.

The claim ends with the applicant's signature and date.

Sample

What to do when checking a donor out of an apartment

Extract from the donor’s apartment is carried out in the same way as any other procedure for deregistering residents. If both parties agree with this decision, then the citizen can be discharged pre-trial. Forced deregistration is carried out only through the court.

Voluntary procedure

The donee draws up a notice of discharge addressed to the donor. If both parties agree and have no claims against each other, then the citizen who donated the apartment draws up a special application in Form No. 6. It can be submitted to such authorities as:

1. Territorial division of the Main Directorate for Migration Issues of the Ministry of Internal Affairs of Russia - GUVM MIA.
2. Accredited government center.
3. Passport office is a branch of a homeowners association or management company that deals with registration and check-out of residents.

You can also carry out a voluntary deregistration through the government services portal by filling out an application in the user’s personal account. The only documents you will need are a passport. The procedure itself will take from three to six days - this is the period for deregistration.

Voluntary deregistration is always fast and free. The parties will not incur any costs, since in this case there are no government duties or commission payments. The main thing to remember is that voluntary deed must be truly voluntary, because if the donor proves that they tried to evict him from the apartment by force, he will be able to revoke the deed of gift and bring the recipient to criminal liability (Article 330 of the Criminal Code of the Russian Federation).

Judicial proceedings

If the citizen who donated the apartment does not agree with the conditions, the recipient has no choice but to go to court and force the citizen to be discharged.

The owner submits a written statement of claim to the court at the place of registration. The application itself must reflect all the requirements and conditions of the tenant - both about the discharge from the apartment itself, and the reasons for such a decision. The structure of the statement is as follows:

• name of the judicial authority;
• Full name, passport details and contacts of the plaintiff;
• Full name, passport details and contacts of the defendant;
• factual part;
• pleading part;
• list of attached documents;
• date and signature of the plaintiff owner.

The content itself, that is, the factual and pleading parts, must be drawn up correctly, since on the basis of this data the court will make a decision. In order to clearly reflect the essence of the matter even at the application stage, it is better to engage a lawyer who will not only provide advice, but also help draw up the application itself with references to the legislative framework.

The package of documents, in addition to the claim itself, must include a copy and original of the owner’s passport, a gift agreement, which determines the plaintiff’s right to dispose of the housing. Also attached are certificates - a certificate of state registration of property, as well as a certificate of ownership of the apartment.

Going to court requires the presence of an evidence base, so it is necessary to collect information about the donor, whether he has other housing, and the frequency of his presence or residence in the donated housing.

The testimony of witnesses - for example, neighbors - will also be used in the case. The eviction procedure through the court is not free, unlike a voluntary one: the plaintiff must pay a state fee of 300 rubles for an individual and 6,000 rubles for a legal entity.

Once a claim is filed, legal proceedings begin. The judge examines all materials on the case, taking into account the legality of the actions of the owner and the competence of the donor. Based on the results of the hearing, a writ of execution is issued to deregister the citizen who donated the apartment. This is a direct basis for discharge; it must be submitted to the territorial division of the Main Directorate for Migration of the Ministry of Internal Affairs of Russia.

Cases in which you can challenge the donation of an apartment

In order to donate an apartment with citizens registered there, it is necessary to draw up a gift agreement and have it certified by a notary. It should be understood that the person for whom the transaction is made may refuse such a gift.

To conduct a transaction in accordance with the law of the Russian Federation, you need to know the basic conditions that accompany the donation of an apartment with the persons registered in it:

1. 
   The most important thing is the legal grounds; only its real owner according to the documents can donate the apartment.

2. If minor children are registered in the apartment, then the transaction on transfer of ownership will not have legal force.
3. If an apartment has several owners, then when transferring rights of ownership of part of the property, the consent of its remaining owners is required.
4. If the persons registered in the apartment are disabled, then donating the apartment will also not be possible until the registered citizen has checked out.
5. If you want to donate part of the apartment or all of it, but at the same time leave some persons registered, then this is also possible. It is necessary to indicate in the contract that these persons have the right to use the donated apartment.
6. An incapacitated citizen and children under 14 years old will not be able to donate an apartment.
7. According to the law, a civil servant has no right to receive an apartment as a gift.
8. The recipient cannot be an employee of the organization of which he is a client. This applies to educational and educational institutions, as well as health organizations.

You can donate an apartment if only adult citizens are registered in it; the issue of expelling them from the living space can be decided later on voluntary or compulsory grounds. But it is also worth understanding that there is a list of categories of persons who cannot be deregistered even forcibly. Let's look at them in more detail:

• Persons who live in an apartment under a rental agreement, that is, have not privatized the property.
• If ownership is transferred through an annuity agreement, the grantor cannot be written out.
• Children deprived of parental care.

Reference! In some cases, it is possible that the new or previous owner provides the registered persons with a new place of residence temporarily, while the conditions in this housing must be at the same level as the previous place of registration.

One of the most basic requirements applicable to donation is the absence of children registered in the apartment who are minor citizens.

If such a transaction is carried out, then in the end it will turn out to be illegal, that is, invalid.

If a minor child has his own share of ownership of the apartment, then the transfer of ownership of it occurs only with a positive decision, that is, approval, from the guardianship and trusteeship authority.

If a minor has an alternative place to live, then he can be discharged from the apartment, the ownership of which has been transferred to third parties in accordance with legislative norms.

Donating a share of an apartment, as well as any property, is not allowed in the cases established by law:

• lack of documents for real estate;
• when the owner of this apartment either has a poor mental state or is incapacitated;
• a person's requirement to fulfill certain conditions in exchange for a deed of gift;
• when the owner of a share of the property is a minor;
• it is impossible to register such a document for a nurse or caregiver who was chosen to care for the owner of the apartment.

Can relatives challenge a gift agreement if they decide to write it under such circumstances? Today, legislation provides for the possibility of recognizing the moment of conclusion as invalid. In court, you can cancel the deed of gift and challenge the right of lifelong ownership. It is permissible to make a new division between the heirs or for the former owner to take ownership of the property.

• if the gift agreement was executed incorrectly or illegally (Article 168 of the Civil Code of the Russian Federation);
  This refers to violation of the form and procedure for signing the contract, lack of registration of the apartment, etc.
• if the donor was incapacitated at the time of registration of the gift of the apartment (Articles 171, 177 of the Civil Code of the Russian Federation);
  Article 171 of the Civil Code of the Russian Federation implies that the donor was under the influence of a mental disorder at the time of signing the gift agreement.

  Article 177 of the Civil Code of the Russian Federation determines the reason, such as the donor’s legal capacity, but lack of awareness of his actions at the time of donating an apartment, for example, in the stage of intoxication. It takes into account whether the person understood what actions he was taking.

• if the person to whom the apartment was presented deliberately caused bodily harm to the donor, and also committed an attempt on his life, on his family members or even his close relatives (Part 1 of Article 578 of the Civil Code of the Russian Federation);
• if the gift agreement was actually signed to cover up some other transaction (Article 170 of the Civil Code of the Russian Federation);
  The so-called “sham” or “imaginary” transaction is carried out to cover up another transaction. For example, in order to avoid paying taxes, the buyer and seller of an apartment decided not to formalize the purchase and sale of an apartment, but rather a deed of gift.
• if the gift agreement was signed due to a threat, under pressure and against the will of the donor (Article 179 of the Civil Code of the Russian Federation), i.e. under duress;
• if the donor misunderstood the essence of the donation transaction;
  For example, the grandfather did not realize that he was giving away his apartment or this was not explained to him, thereby hiding the essence of the transaction from him.
• if there is no consent of the legal spouse in the case of donation of jointly acquired property;
  This consent must be formalized by a notary. If the donee’s property was acquired by one of the spouses before marriage, then consent is not required.

How to donate an apartment - I describe all stages of the transaction. What is better - to donate or bequeath real estate?

• if the recipient treats the apartment improperly (Part 2 of Article 578 of the Civil Code of the Russian Federation);
  The actions of the recipient can be anything, but they must jeopardize the condition of the apartment. For example, he starts fires inside over and over again.
• if the recipient has died, but the donor has not yet died (Part 4 of Article 578 of the Civil Code of the Russian Federation).
  However, such a condition must be specified in advance in the gift agreement. A person cannot simply take the apartment back to himself as soon as the recipient dies. In this case, he can demand that the rights to the apartment be transferred back to him.

1. If the gift was made illegally.
   In the case of donating an apartment, the agreement must be subject to mandatory state registration, in accordance with the provisions of Article 574 of the Civil Code of the Russian Federation. In this case, in order to challenge the apartment donation agreement, there is no need to take any fundamental actions: without the appropriate state registration, such an agreement is considered void. This means that the apartment continues to remain the property of the donor.
2. If the donor was incapacitated at the time the gift was made.
   In this case, the executed gift agreement can be challenged in court. It is necessary for an authorized person (this may be the legal representative or guardian of the donor) to file a claim in court. The statement of claim should also be accompanied by documents confirming that the donor was insane at the time of registration of the deed of gift: a certificate from a doctor, examination results or other evidence.

   After this, a court hearing is scheduled at which the case is considered on its merits. If the claim is satisfied, the gift agreement is declared void, and the apartment becomes the property of the donor. However, the donor is obliged to reimburse all expenses incurred by the donee in relation to the apartment during the period when the apartment was at his disposal.

3. If the recipient treats the apartment improperly.
4. If the donee in any way attempted to cause harm to the life and health of the donor or his loved ones.

In these two cases, issues of cancellation of the gift are resolved exclusively through the court - this is indicated by the relevant parts of Article 578 of the Civil Code. A statement of claim is written in the name of the recipient with a request to cancel the gift agreement in a forced judicial manner, indicating the basis on which you make such a decision.

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Cancellation or challenge of the apartment donation agreement can be carried out by the person interested in this. However, in any situation you need to go to court. After all, a correctly drawn up and registered agreement causes legal consequences, which can only be canceled in the manner established by Russian law.

How to discharge a person from a municipal apartment - if without his consent, then only through the court.

How long does it take to check out?

Voluntary deregistration occurs quite quickly. If a citizen submitted an application to the Main Department of Migration, to a multifunctional center or through the public services portal, the result will be available in three days. The passport office processes documents from three days to two weeks. It takes two weeks for deregistration along with registration. If the donor lives in another city, the procedure may take up to three months.

The statement of claim is accepted for consideration within five days. The time frame for consideration of cases in a civil or magistrate court takes from one to two months (Article 154 of the Code of Civil Procedure of the Russian Federation). The judge in his decision announces the period during which the citizen must be discharged from the housing donated to him. In some cases, the court may grant a deferment for up to one year.

Sources

• https://naslednik.guru/darenie/darstvennaja-na-dom.html
• https://mylawyer.club/nedvizhimost/kvartira/darenie/prodazha-podarennoj-kv/s-propisannymi-lyudmi.html
• https://pravo-sfera.ru/pravo/kak-vypisat-daritelja-iz-podarennoj-kvartiry/
• https://ros-nasledstvo.ru/kak-vypisat-daritelya-iz-podarennoj-kvartiry/
• https://100Yuristov.com/cat/zhilishnoe-pravo/kak-vypisat-iz-podarennoj-kvartiry-daritelya/
• https://rtiger.com/ru/journal/kak-vypisat-daritelya-iz-podarennoi-kvartiry/

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