What transactions are allowed to be made, and how can you dispose of an apartment if there is a deed of gift?

What is the difference between a purchase and sale agreement and a gift agreement?

The execution of a gift agreement (hereinafter referred to as DD) is regulated by Chapter. 32 of the Civil Code of the Russian Federation, purchase and sale – Ch. 30 Civil Code of the Russian Federation. Both procedures are considered bilateral, and are aimed at alienating the property of one person in favor of another. Transactions can be concluded orally or in writing, but if the donation occurs free of charge, then the sale is exclusively for money.

There are other differences:

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

Risks of purchasing an apartment received by gift

If the basis for obtaining property rights to housing is a gift agreement, then there are some risks for the buyer.

1. Incapacity of the donor or termination of the gift agreement . If the donor is declared incompetent or he terminates the deed of gift, the apartment cannot be sold by the recipient to a third party. If the transaction has already been concluded, then claims will arise against the seller from the donor himself and his heirs (relatives) - this will entail legal proceedings.

Cancellation of the gift agreement does not affect the consequences of the purchase and sale transaction concluded by the donee - the buyer does not lose his rights to the apartment. All claims are presented to the seller, who also pays the awarded compensation. But this is only valid if the transaction itself was concluded in strict accordance with the law. Any violations in the execution of the document will entail negative consequences for the buyer - he may lose the right to housing.

To eliminate possible difficulties, you should approach the drafting of the contract with great care - it is better to entrust the work to an experienced lawyer. The absence of inaccuracies in wording and other errors in the document will protect you from risk.

1. Evasion of the seller from paying tax . Difficulties may arise if the seller has not paid the gift tax - personal income tax is charged if the donor is not a close relative of the recipient (Article 217 of the Tax Code of the Russian Federation). Having identified a violation on the part of the seller, Rosreestr may suspend registration.
2. A sham deal . Another risk is that a purchase and sale could be disguised as a gift. At the request of the deceived party through the court, the transaction may be recognized as a sham and become invalid. If the statute of limitations has not expired (3 years), then this possibility cannot be excluded. It is worth considering that the period is calculated from the moment the injured party learned of the fact of a violation of their rights.
3. Donation of real estate by a legal entity or individual entrepreneur . One of the schemes for “merging” assets in the event of a threat of bankruptcy is the registration of a deed of gift in favor of an individual with the subsequent sale of real estate. An interested party can challenge such a transaction in court.

Features of registration of deed of gift

According to Art. 574 of the Civil Code of the Russian Federation, the transaction is concluded orally, with the exception of cases when written form is required:

• Real estate is alienated;
• A legal entity gives a gift worth RUB 3,000 or more;
• The giver plans to give the gift in the future (promise of gift).

The written DD is drawn up by the donor independently, but if necessary, the parties have the right to seek help from a lawyer or notary. Notarization is required if a share in the property right is alienated, the donor is a minor or a person with limited legal capacity, or a representative by proxy participates in the procedure on behalf of the owner or donee.

Important! When alienating real estate, registration of ownership of the donee in Rosreestr is required, but specific deadlines are not established. If a car is donated, information about the new owner is entered into the PTS, and it must be registered with the traffic police within 10 days after signing the deed of gift.

Pros and cons of deed of gift

Let's consider the advantages and disadvantages of a deed of gift:

Contents of the gift agreement

When drawing up a deed of gift, you need to provide clear information about the transaction, the gift and the parties:

• Full name, passport details of the donee and the donor;
• Information about the item - gift;
• The nature of the DD: real (fulfilled immediately) or consensual (promise of donation);
• Obligations and rights of the parties;
• Conditions for cancellation or modification;
• Referral to obtain consent from the spouse (if required);
• Signatures of the parties to the transaction.

The agreement is drawn up in at least two copies, one each remains with the donor and the donee. If real estate is donated, you will need a third copy for Rosreestr.

Sample apartment donation agreement:

When it's possible

In order to be able to sell an apartment after donating it, you first need to correctly formalize the procedure for the gratuitous transfer of ownership of this property. In the vast majority of cases, such transactions are carried out between close relatives, but even in this case there must be a written agreement certified by a notary.

From the moment the agreement is signed, the recipient receives ownership rights, and together with this document he will need to go to the Registration Chamber so that the employees of this body enter the data of the drawn up agreement into the database. In particular, employees of this body will need to provide a donation agreement, a receipt for payment of the state duty, a cadastral passport for the specified housing and a number of additional papers.

A corresponding certificate is provided as a document confirming ownership rights, and only after the completion of the registration procedures can the recipient be called the full owner of the property, who can independently dispose of the property at his own discretion, that is, donate it, exchange it or sell it.

Many believe that more than 3 years must pass from the moment of donation for the recipient to have the opportunity to sell his own property, but in practice this is far from true, since there are no such requirements in the legislation. It is not at all necessary to wait a certain period of time to sell newly acquired property, so you can register its sale immediately after the certificate of ownership has been issued.

The only caveat in connection with which it is recommended not to sell the specified property in the first three years is that in this case you will have to pay additional taxes, which will depend on the value of the property being sold. In this regard, if the seller is going to sell his property on the most favorable terms, it is best for him to wait.

Features of drawing up a purchase and sale agreement

The purchase and sale agreement (hereinafter referred to as the PSA) is drawn up on a reimbursable basis: the seller undertakes to promptly transfer the goods or other things to the buyer, and the buyer undertakes to provide money in return. The procedure is regulated by Ch. 30 of the Civil Code of the Russian Federation and is divided into several types: contracting, supply of goods, sales of real estate or enterprises, retail trade.

The DCP is drawn up in simple written form, and notarization is required only in a few cases:

• A share in the right to real estate is for sale;
• Sale of real estate to a minor or person with limited legal capacity.

As with a gift, in the case of the sale of common property, the notarized consent of the seller’s spouse will be required.

Note! If the DCT requires a notarial form, and the interests of the seller or buyer are represented by an attorney, the power of attorney must be certified by a notary.

Pros and cons of a purchase and sale agreement

The advantages of the DCT include the ease of execution: it is enough to draw up the document in several copies, having previously agreed on the terms with the parties to the transaction.

There are other advantages:

• There are no restrictions for the parties, as in the case of DD, where it is prohibited to transfer gifts free of charge in favor of employees of municipal and state bodies, social institutions, and healthcare organizations, if the procedure is related to their work activities;
• The seller, unlike the donor, receives a benefit - money;
• PrEP is easier to cancel than DD.

There are also disadvantages:

• The seller is required to pay income tax. The donor does not pay it. If a valuable thing is acquired by spouses during marriage in the absence of a marriage contract, it is recognized as common property and will be divided upon divorce.
• The most significant disadvantage, due to which some are trying to cover up the sale of DD, is the obligation to notify the remaining owners in the event of a paid alienation of the share.

Legal advice: it is better not to try to cover up the sale of DD. Based on Art. 170 of the Civil Code of the Russian Federation, other owners whose pre-emptive right has been violated may recognize the transaction as sham. This entails its invalidity: the deed of gift will be cancelled, the donor and the donee will be returned to their previous position.

Elena Plokhuta

Lawyer, website author (Civil law, 6 years of experience)

Contents of the purchase and sale agreement

The content of the DCP must comply with the requirements of Chapter. 30 of the Civil Code of the Russian Federation, depending on the type of transaction. The document includes almost the same information as in the DD, but the cost of the property being sold must be indicated.

What else will you need:

• Information about the seller and buyer;
• Product data;
• Duties of the parties;
• Conditions for canceling a transaction;
• Signatures of the buyer and seller.

Sample agreement for the sale and purchase of an apartment:

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How to avoid problems when buying an apartment under a gift agreement?

Purchasing housing through a gift in most cases does not involve serious risks, but they should not be completely excluded. Even at the stage of discussing the details with the seller, it is worth consulting with a lawyer - he will tell you which points deserve special attention and where you can get the necessary information. In general terms, the algorithm will look like this.

Obtaining information from Rosreestr

This is a mandatory step when purchasing real estate, regardless of the method by which the seller obtains ownership rights (this can be either a gift, a purchase or sale, or an inheritance).

An extended extract from the Unified State Register can be obtained at the multifunctional center, the territorial body of Rosreestr of the Russian Federation, on the Rosreestr website or using the State Services service. In any case, you must pay a state fee. If the property was registered before 1998, you will have to contact the MFC for information - an extended extract from the house register will be provided.

The document provides detailed information regarding the transfer of rights to the property - personal data of all owners and the period of time during which they owned the property. The certificate contains information about encumbrances, claims/claims, and the number of owners in the case of shared participation. This will eliminate the risk of claims to ownership rights from third parties.

The statute of limitations at common law is 3 years, and in the case of a voidable transaction - 1 year. It is calculated from the moment when a person learned about the violation of his rights (Part 1 of Article 200 of the Civil Code of the Russian Federation).

Conversation with the seller and donor

If, in the process of studying the information, questions arise for the seller, then it is worth getting reasoned answers from him (the facts are confirmed by certificates, extracts and other documents). In particular, this applies to payment of gift tax (13% for an individual who is not a close relative of the donor). Confirmation of the fact that personal income tax has been paid into the state treasury is a certificate from the tax office. If the seller claims that he has the right not to pay tax, then he must provide the relevant documents (birth or marriage certificates, court decision on adoption).

If the donor is alive, you should definitely talk to him - this will allow you to assess his legal capacity and make sure that the deed of gift will not be canceled for one reason or another.

A telephone conversation is not enough - you need to organize a face-to-face meeting. It doesn’t hurt to make sure that it was the donor who came to see her. If the seller wants to hide something, he can organize a fake “interview.”

Document text development

Once you have made sure that there are no obstacles to concluding the deal, you can begin to draw up the contract. In this matter, you should trust a lawyer - when developing the text yourself, you can make a mistake or miss important points.

To eliminate possible risks, it is worth adding an additional clause to the contract. It must indicate that in the event of claims from third parties, the seller assumes full responsibility and undertakes to compensate for the damage.

A correctly drawn up document guarantees the security of the transaction. Thanks to him, even if difficulties arise, the buyer will be able to defend his rights to the purchased property. The responsibility will fall on the shoulders of the seller and he will have to bear the responsibility.

At first glance, the acquisition of an apartment received by the seller under a deed of gift does not actually differ from concluding a standard transaction. In fact, this is not the case - the procedure requires much more attention to detail. How to avoid pitfalls and risks when buying an apartment under a gift agreement? The site’s lawyers will advise on the legal aspects of the transaction, answer any questions that may arise, and help you avoid mistakes when drawing up a purchase and sale document.

Challenging contracts

The grounds for challenging PrEP and DD differ.

In the first case, the list of reasons is much wider:

• Violations committed during privatization;
• The apartment is inherited, and some time after accepting the inheritance, another heir appears who did not declare his rights within the established time frame. He has the right to challenge the transaction;
• Drawing up a written contract by an incapacitated owner;
• The share was sold without granting a pre-emptive right to other owners;
• Common property was sold without the consent of the seller’s spouse;
• The seller is involved in bankruptcy proceedings and wants to avoid foreclosure by selling it. At the initiative of the creditors, all transactions over the past 3 years are disputed;
• The property of a minor was sold without the consent of the guardianship authorities.

The DD is canceled on the grounds specified in Art. 578 Civil Code of the Russian Federation. The court recognizes the DD as invalid if the donee intentionally killed the donor or caused harm to his health; when creditors apply to cancel a transaction concluded by a donor-participant in bankruptcy proceedings.

If the deed of gift was drawn up under the influence of threats or misconceptions, by an incapacitated or partially capable citizen, there is also a chance to cancel everything.

Tax amount

If you sell an apartment under 5 years of ownership, you will pay 13% of the profit received . If the apartment was inherited or donated or received under a lifetime annuity agreement and you sell it up to 3 times in ownership, pay 13% of the difference between the cadastral value of the apartment and the price for which you sell it.

In all other cases, do not pay anything.

You have become the owner of your own apartment, your cherished dream has come true! Congratulations to you! But after the first joyful moments, the time comes when you begin to think - what to do next after acquiring the treasured square meters? How to register? How to register ownership? Don’t worry, our experts will tell you everything in detail and teach you how to do and formalize everything correctly and legally.

Arbitrage practice

Recognizing a policy or DD as invalid is a complex and painstaking matter that requires high legal literacy. But there are chances, and this is confirmed by several solutions:

• Decision No. 2-5126/2019 2-5126/2019~M-3901/2019 M-3901/2019 dated July 29, 2020 in case No. 2-5126/2019 (Donation Agreement);
• Decision No. 2-1851/2019 2-1851/2019~M-1711/2019 M-1711/2019 dated July 17, 2020 in case No. 2-1851/2019 (Donation Agreement);
• Decision No. 2-140/2019 2-140/2019~M-118/2019 M-118/2019 dated July 30, 2020 in case No. 2-140/2019 (Purchase and Sale Agreement).

Are you planning to draw up a gift deed?

We’ll show you how to properly formalize and draw up an agreement so that it won’t be challenged in the future.

Challenging a gift transaction

In addition to direct prohibitions on the basis of which such an agreement can be declared invalid, there are many other options in which the transaction can be challenged in court or even simply canceled by the donor:

• If the donee, from the donor's point of view, mistreats his gift, he can take away the object of the gift.
• If a transaction was made using a power of attorney, the latter may be declared invalid, which automatically entails the recognition of all transactions made using this power of attorney as invalid. By the way, sometimes scammers generally work with initially expired or outright fake powers of attorney.
• The donor may declare that at the time of donation of the apartment he was in an insane state, this will also be the reason for termination of the transaction.
• If the property has several owners, then each of them must agree to the transfer of this apartment as a gift, otherwise the transaction is considered invalid.

There are many other options in which different persons can claim that the transfer of an apartment as a gift violates their rights (for example, the heirs of this very apartment). And in all such cases, there is a high probability that the transaction will be declared invalid.

The main problem is the impossibility of linking the fact of transfer of ownership of an apartment to the fact of transfer of money. Otherwise, it will no longer be a gift agreement, but a purchase and sale agreement. Thus, regardless of the reason for which the contract is challenged, the donee will almost never be able to prove that payment for the apartment was made.

Lawyer's answers to frequently asked questions

What is cheaper for the recipient of property: donation or purchase and sale?

With DD, the donee pays personal income tax, unless the donor is a close relative - this is the only financial burden on him. When purchasing real estate, some citizens have the opportunity to receive a deduction. But you have to pay money.

What happens to the property donated or sold if the new owner dies?

If the DD provides for the possibility of cancellation upon the death of the donee, the donor has the right to cancel it (Article 578 of the Civil Code of the Russian Federation). Anything purchased under DCT is included in the inheritance estate.

What is cheaper in terms of registration with a notary: DCP or DD?

Prices are approximately the same everywhere. For mandatory certification, 0.5% of the value of the property is paid.

How to re-register ownership of real estate from a mother to an adult child faster and cheaper: by deed of gift or DCT?

It’s easier and cheaper to use a deed of gift: just draw up a deed of gift in writing, then submit documents to register ownership. Under PrEP, the child will have to pay money.

The apartment has two owners and was inherited. What is the easiest way to donate your share to the second owner?

The grounds for acquiring ownership rights do not matter. You can draw up a gift or sale agreement.

What is a deed of gift in 2020

From the point of view of the current legislation of the Russian Federation, a gift agreement or a deed of gift for a house is an agreement on the transfer (alienation) of real estate from one party to another free of charge, that is, without any benefit (money, things, services) for the donor of the property.

Today, the wide popularity of this method of transferring property is due to the short period of registration of ownership rights and financial savings. However, in order for the gift agreement not to be ultimately declared invalid, it is necessary to follow certain rules, having information about the “pitfalls” when concluding such a transaction.

For example, the grounds for canceling a deed of gift may include the completion of the transaction in question without the mutual consent of the parties or the presence of any conditions that imply that the current owner of the house receives a certain benefit after the execution of the contract.

In such cases (if there are reciprocal obligations), according to the laws of the Russian Federation, the parties are obliged to enter into another transaction - an exchange. Otherwise, the legality of the contract can be challenged in court at any time.

Also, as we already mentioned in the article about donating a garage, real estate objects are directly related to the land plots on which they were built. Thus, the deed of gift will be considered invalid if the house is donated without ownership of the land. In this case, the plot of land on which the building (in this case, a house) is built is also subject to re-registration.

From the above we can conclude that:

• Registration of a deed of gift for a house is impossible without transferring into the ownership of the recipient not only the building, but also the plot.
• In some situations, a transaction is concluded with one contract for two objects at once.

For example, even when donating part of a house, the donor is obliged to transfer to the donee a certain part of the land, the size of which is calculated based on the general data of the building and the share.

Let us note that if the donor has a long-term lease on the property and, according to the law, he has the right to use it, he can transfer his right in full to the donee. At the same time, the former owner will continue to act as the owner.

Deadlines for filing a tax return and paying taxes

From the date of mandatory state registration of a real estate donation agreement, the tax authority monitors the deadlines for the recipient to send a declaration. The obligation to pay the contribution must be fulfilled within the period , namely:

• In the year when the transaction for donating residential property was completed, the citizen who received the gift does not pay tax and does not declare the income received.
• By April 30 of the next calendar year, the taxpayer is required to submit a completed declaration in Form 3-NDFL to the authorized institution at his place of residence. The document must indicate the value of the property.
• A citizen must pay the tax contribution no later than July 15 of the year in which the declaration was sent to the tax authority.

If the declaration is not submitted on time, the tax service has the right to collect from the violator a fine in the amount of 5% of the amount of tax not paid on time for each full or partial month from the day established for submitting the document, but not more than 30% and not less than 1,000 rubles.

The fine can be collected either voluntarily or in court .

In a situation where the donee permanently resides abroad , tax is payable until the state registration of property rights.

Is it possible to issue a deed of gift if the apartment has a mortgage?

Registration of a deed of gift for an apartment that is under mortgage is a complex process. It is complicated by the fact that the apartment is encumbered. In addition, the owner of the apartment is not the one who plans to donate it, but in fact, the bank. Until the final repayment of mortgage payments, the payer has no right to dispose of it as an owner.

However, donation is possible with the permission of the bank. To do this, you must submit a corresponding request to the credit institution that issued the mortgage loan.

Practice shows that banks usually refuse to make a donation.

This is motivated by the fact that the mortgage loan was issued to a specific person, and the donee was a completely different person. However, if consent is obtained, the donation can take place. In this case, the donee will be obliged to assume the burden of repaying the remaining portion of the mortgage. Also, a bank employee must be present when registering the right, otherwise the transaction will not be registered.