What is a gift agreement and its types?
We all love to receive gifts, and if ordinary items are given, even very expensive ones, no formalities are required.
It’s another matter if the gift is real estate. In this case, it is necessary to draw up a gift agreement (deed of gift) so that the recipient can re-register ownership of the property. Most often, apartments or houses are given to each other by close relatives, for example, parents to children. Much less frequently, but there are cases when real estate is given to a person who is not related to the donor by family ties.
The owner of the home has every right to donate it to any person, organization or foundation. If the agreement is drawn up correctly, then it will be very difficult for even the closest relatives to challenge the fact of the gift.
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A gift agreement can be drawn up without notarization, but lawyers still recommend contacting a notary to avoid the risk of the document being appealed by interested parties.
Types of deed of gift
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Real contract
Involves a free bilateral transaction without any additional conditions. It comes into force at the moment of official transfer of property, that is, the donee has the right to dispose of the property as soon as the contract is signed and the property is registered in the name of the new owner.
The property should not be encumbered, that is, be pledged or purchased on credit that has not yet been paid off.
Example. The parents own two apartments, they live in one themselves, and they decided to give the other to their son. After drawing up the deed of gift, the family contacted the MFC, where documents were submitted to re-register the property in the name of their son. After the son has received title documents, he is the owner of the property and has the right to live in it legally, sell it, donate it, or bequeath it.
Consensual agreement
In this case, the donor specifies certain conditions in the deed of gift. If they are not fulfilled, the transaction is considered void (invalid).
Example. The mother gives her son an apartment with the condition that she will live in it for life. Thus, the son can dispose of housing only after the death of his mother.
This is the most correct and appropriate type of deed of gift, since elderly parents can protect themselves and not be left without a roof over their heads. There are many cases when donors are left homeless after donating their apartments without any conditions.
You can specify any requirements for the recipient, except material ones. The transaction involves a gratuitous donation.
Donation
This is a special type of gift when the donor is an individual and the recipient is a legal entity.
Example. A well-to-do, lonely elderly man donates his large private house and land to an orphanage. Thus, he makes a donation for charitable purposes.
Such a donation involves only intended use. If real estate and land were donated to a children's institution, then they must serve their intended purpose. Any other purposes are unacceptable.
Can a donated apartment be taken away for debts?
If the deed of gift has already been drawn up and the bank client has received the title documents, then he is the owner of the property. And, here the situation will be exactly the same as in the case of any other immovable objects. Therefore, the answer to the question whether a bank can take away a donated apartment for debts is clear.
The situation can be complicated by the presence of a child - the state protects the interests of minors and very strictly ensures that they are not left homeless. Therefore, legal proceedings with clients with registered children often do not lead to immediate satisfaction of the bank’s claims. Most often, you have to wait until the child turns 18 years old.
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How can a donor challenge a deed of gift?
Is it possible to revoke a deed of gift for an apartment if the donor changes his mind?
According to the Civil Code of the Russian Federation, Art. 578 cancellation of the deed of gift is possible in the following cases.
- After completing the transaction, the donee committed illegal actions against the donor or members of his family - bodily injury, attempt on life and health. In this case, the donor has the right to revoke the deed of gift, and if the donee deprived the donor of his life, then the heirs of the victim can apply to the court to cancel the gift agreement.
- The donor has the right to sue the recipient if he carelessly handles the donated property and through his actions creates a risk of irretrievable damage or loss. That is, they do not take care of the donated housing, do not make repairs, deliberately destroy it, and render it unusable.
- If the donor survives the recipient, then he can return his property, but only if these conditions were specified in the gift agreement.
Termination of a gift agreement is possible only in court.
Unforeseen situations may arise when the donor can challenge the fact of the donation and return the property, but only if the gift agreement is concluded with certain conditions, for example, deferment of registration of property in the donee.
Example. A successful businessman gave an apartment to his mistress with a delay in registering property rights for three years. During this time, he managed to go bankrupt and lose all his savings. Since the donation agreement has not entered into force, the donor has the right to regain the previously owned apartment.
A sharp deterioration in the health of the donor, when he requires urgent surgery or expensive treatment, can also serve as a reason for returning property. If the agreement was drawn up with a delay, then challenging the deed of gift will not be difficult.
When drawing up a gift agreement, you need to take into account many factors and nuances, so you need to carefully consider additional conditions, and it is better to seek advice from a lawyer.
After registration
If someone gave an apartment as a gift, how to return it after registration?
When the agreement exists in writing, then the refusal of the deed of gift for the apartment can only be in the same form .
An agreement that has been registered with Rosreestr can only be canceled by another, which should also be registered (clause 3 of Article 574) - these papers are grounds for the registration authority to make appropriate changes in the real estate register.
A notarized deed of gift will require the same execution of a document on refusal to accept the gift.
How to refuse to donate an apartment after registration? There are several ways to get everything back :
- Perform the donation procedure in the opposite direction, that is, draw up a deed of gift in favor of the previous owner of the property.
- Draw up an agreement to cancel the deed of gift (this document must be signed by both parties).
Of course, the second case assumes that the previous owner is also aware of the donee’s intentions and does not object to the return procedure.
Having come to his senses and decided to take the opposite action, a citizen who has received real estate free of charge can realize his intention.
As Article 450 of the Civil Code states, the problem can only be resolved through a mutual agreement on the termination of the deed of gift; if one of the participants disagrees, the situation will be resolved in court.
How to return a donated apartment back to the donor?
When a deed of gift is invalidated
Due to the fact that a gift agreement can be concluded in free form and not notarized, situations often arise when the transaction may be declared invalid.
Cancellation of a gift agreement can be initiated in court by the donor himself, his relatives or third parties.
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Additional terms of the agreement
Property can only be donated free of charge. According to the law, the deed of gift cannot contain material requirements for the recipient, for example, to pay or give something in exchange for the housing received.
Special conditions are allowed in the gift agreement, but they must be intangible, for example, the agreement comes into force after a certain time or the donor has the right to live in this living space until his death.
But some conditions may be drawn up incorrectly or incorrectly, and therefore give rise to a challenge to the transaction.
Unacceptable conditions in the deed of gift:
- the donee is required to provide any material benefits, lifelong maintenance or transfer of ownership of other property;
- vague definition of donating or writing off “all property” - the subject of the donation is not specified;
- promises to donate housing after the death of the donor - incorrect wording with the aim of the donor’s desire to live in the apartment leads to the fact that the property after his death is inherited by his closest relatives, since it was not officially re-registered to a specific person.
If given to a certain category of persons
According to Article 575 of the Civil Code of the Russian Federation, it is prohibited to give real estate to:
- officials and employees of the state apparatus, if they are not close relatives of the donor;
- employees of guardianship authorities from their wards;
- to teachers and doctors on behalf of students and patients, as well as on behalf of their relatives, parents or spouses;
- guardians and legal representatives on behalf of minors and incapacitated citizens;
- officials who serve in institutions where minor children or incapacitated people live (orphanages, boarding schools, nursing homes and others).
The donor had no right to dispose of the property
The transaction will be invalid in at least three cases.
The donor did not have title documents for the property
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Possible reasons are as follows.
- After purchasing the apartment and signing the purchase and sale document, the donor did not re-register ownership of the apartment, but immediately executed a gift agreement.
Example. The father decided to give his daughter a gift for coming of age - an apartment. Since the daughter was still a minor, the father had to deal with the purchase directly. After the purchase and sale agreement was signed, the man immediately wrote a deed of gift. Unfortunately, it turned out to be invalid, since you first had to register the property in your name, and only then dispose of it.
- After signing the deed of gift, it turned out that the court had issued a ruling on the invalid ownership of real estate received by will or purchased in violation of the law.
Example. The man gave the apartment received under the will to his son, but the relatives of the deceased were able to prove that the will was written under pressure. By a court decision, the will was declared invalid; accordingly, the deed of gift lost its force, and the apartment had to be returned to the relatives of the deceased.
The donor did not have the notarized consent of the spouse
If the property was acquired during marriage, then in order to dispose of it, the consent of the second spouse, certified by a notary, is required.
Example. A successful businessman, being married, gave an apartment to his mistress. A notary he knew illegally formalized his wife’s consent to the transaction. While filling out documents at the MFC, a businessman and his mistress were accidentally seen by a close friend of his wife, who immediately called her deceived wife. As a result, the gift agreement was declared invalid, and the notary lost his license.
The donor is a co-owner of the apartment, but donated it entirely.
Example. Two sisters own a two-room apartment. One of them wrote a deed of gift for her granddaughter, but since she was already old and did not have the necessary knowledge, the data in the contract was indicated incorrectly. When re-registering the property to my granddaughter, it turned out that the apartment had another co-owner. MFC employees pointed out the error in time, and the gift agreement was rewritten.
Premature death of the donor
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If the gift agreement was signed by both parties, and the donor died suddenly before the property was re-registered to another owner, then the deed of gift is considered invalid.
In this case, the property will be divided between heirs according to the law, and if there are none, it will go to the state. However, if the donor manages to write a will for the recipient, then the transaction will be legal.
Example. The grandfather decided to give his house to his granddaughter, since she was the one who took care of him in recent years. After signing the deed of gift, the man’s condition deteriorated sharply; the emergency doctor confirmed that he had just a few hours to live. During this time, the granddaughter called a notary to the house, and the grandfather signed a will in her favor. If this had not happened, the house would have been inherited by law between first-degree relatives.
The property is in disrepair
The deed of gift is considered invalid if the housing is recognized as unsafe and cannot be re-registered to a new owner.
In this case, it is necessary to wait for an adequate response from the state - compensation for the purchase of a new living space or relocation to another housing, and only then return to drawing up a deed of gift.
Can the counterparty to the agreement relinquish the housing in favor of the donor?
The person who received ownership of the property can return it. This can be done in two ways - donate it to the former owner (that is, draw up a new deed of gift) or draw up a written agreement to cancel the contract.
If the deed of gift was certified by a notary, then the cancellation agreement will also need to be certified. The same goes for government. registration of the contract, so its cancellation should also be registered.
How to return the apartment back after transfer of ownership?
How to return a donated apartment back to the donor? The first thing the recipient must do is to inform the former owner of the property about his decision. By law, a person can refuse to accept a gift only before all documents have been completed. After this, such issues are never resolved unilaterally.
Step-by-step algorithm of actions:
- contact the notary who certified the deed of gift;
- provide the necessary documents;
- draw up an agreement to cancel the deed of gift (or draw up a new deed of gift);
- register the document in Rosreestr.
Both the agreement and the deed of gift are drawn up only in the presence of both parties.
Therefore, the donor and the recipient must come to the notary. Sometimes it is necessary to provide the consent of the persons living in the apartment. The full list of documents required for the return of real estate includes:
- application for registration of property rights;
- consent of the recipient's spouse to the transaction;
- personal documents of participants;
- extract from the Unified State Register;
- document confirming payment of the duty;
- documents for the apartment;
- agreement or deed of gift.
If the recipient wants to transfer the housing to the previous owner, then a standard gift agreement should be drawn up.
The agreement to terminate the deed of gift does not have a form established by law, so it can be drawn up in free form.
The document must contain the following information:
- place and date of compilation;
- Full names of the parties;
- subject of decoration;
- details of the gift agreement that the parties are going to cancel;
- information about the apartment;
- procedure for compensation of expenses associated with the transaction;
- signatures of the parties.
The agreement may contain additional information.
As for the application for registration of ownership, you usually do not need to draw it up yourself. It is enough to obtain a document form from the registration authority and fill it out.
deed of gift termination agreements.
Rosreestr employees accept the papers and issue the applicant with a receipt confirming their receipt. They review the application and other documents within a week. The transfer of ownership will be registered only after all data has been verified. The new owner only needs to pick up the documents within the specified period.
Can relatives challenge the deed of gift?
It's no secret that most often conflicts and controversial situations arise among relatives precisely against the background of the division of this or that property. Donated real estate can become a stumbling block between relatives who consider themselves deprived.
Is it possible to cancel a deed of gift if the relatives of the donor are against the concluded transaction and consider it invalid? Yes, but only if they prove their case in court.
There are several reasons why the fact of a gift may be disputed.
Violation of legal requirements (Article 168 of the Civil Code of the Russian Federation)
If the law or other legal act was violated during the donation transaction, then such an agreement can be challenged in court.
But until any decision is made by the court, the transaction will be considered valid.
Imaginary or feigned transaction (Article 170 of the Civil Code of the Russian Federation)
First of all, you need to clearly understand the definitions.
An imaginary (fictitious) transaction is a transaction that is made only for show, and the real goals of its participants do not correspond to the subject of the agreement.
Example. The individual entrepreneur's business has been somewhat shaken. By law, the executive authorities can describe his property, including housing (if it is not the only one), and after the sale, use the proceeds to pay off debt obligations. To avoid confiscation, the entrepreneur decided to fictitiously donate the apartment to his cousin, continuing to use it as his own property.
A sham transaction is one that is made to cover up another.
Example. Apartment for sale. The buyer is married, but would like to purchase the property separately from his wife, so that in case of divorce he does not have to divide the apartment in half. The seller wants to minimize taxes on the property being sold. Both parties to the transaction agree to disguise the purchase and sale as a gift.
Such transactions are always concluded consciously and voluntarily, by capable citizens who clearly understand all their actions. However, one of the participants may be misled, which still needs to be proven.
The donor does not understand his actions (according to Article 177 of the Civil Code of the Russian Federation)
How to cancel a deed of gift if the donor was in poor condition at the time of signing the agreement?
If the court is provided with evidence that the donor was under the influence of alcohol or drugs, suffers from mental disorders, or is declared incompetent, then such a transaction will be considered invalid.
It is easiest to prove complete or partial incapacity, since such people are observed in medical institutions and guardianship can be established over them. If such a person signs a gift agreement, then this fact will be easy to protest.
There is another category of incapacitated people - by age. This includes young children who have not reached the age of majority. They cannot make gifts without the permission of their parents or guardians. Therefore, if such a document exists, then it is void (invalid).
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It is much more difficult to prove the insanity of an adult with legal capacity who signed a deed of gift while drunk or under the influence of drugs. In this case, strong evidence will be needed to invalidate the transaction. It is advisable to have not only witness testimony from third parties, but also video or photography.
If the fact of donation is detected within a short time, then you can contact the medical examiner to do a blood test for the presence of alcohol or drugs.
Gifting under the influence of delusion (under Article 178 of the Civil Code of the Russian Federation)
A transaction will be considered invalid if it is proven that it was made under the influence of a material misconception.
If relatives or third parties provided the donor with incorrect information (even unintentionally), and he, not understanding the consequences of the action taken, issued a deed of gift for housing, then such a transaction will be considered void. But this requires strong evidence that the person was really misinformed.
The misconception must be so significant that if a person had objectively and reasonably assessed the real information and knew about the actual state of affairs, he would never have made such a transaction.
An example of a misconception would be the belief that the donor will live and own the property for the rest of his life, and that ownership will pass to the donee only after the death of the donor.
What are the deadlines for challenging a donation?
You can challenge a gift agreement within three years from the date of re-registration of real estate to another owner.
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However, there are some exceptions.
- The donor wants to revoke the contract, but the donee is categorically against it. In this case, the limitation period increases to five years.
- An outsider who is not related to the donor may challenge the fact of the gift within a year from the date of signing the transaction.
- Relatives of the donor can challenge the deed of gift within three years from the moment they learned about the accomplished fact. But if the registration of real estate occurred more than ten years ago, then his chances are negligible.
Another daughter who does not have a deed of gift wants to pay off the debt and take away the apartment
To whom who pointed out to you the right to sell to you and the buyer. An extract from the house register, paying the allowance will be problematic and the case for 3 years from the date of issuance of the certificate of the right to inheritance according to the law, any person from this date is issued to your place of opening, and then certified by a notary upon refusal to participate in it, while the law is on your side. All necessary documents require the consent of the legal representative at your site.
Hello. Even if the apartment is owned by people living in the apartment (apparently this is the case) the fee is generally charged, then the owner has the right, at his own discretion, of the residential premises, if you are still registered in the apartment and have not yet used the apartment and you purchased a house in the apartment, and can also register it in This apartment is for an adult. If you want something to give you as a gift from the owner, then joint residence with the owner. If you refuse to receive it, you must register with the Federal Registration Service, and write an application to Rosreestr with mandatory ownership. Apparently, it’s not that at 16 years old, the spouse won’t want to save something? His permission will write a corresponding statement of commission in relation to the person to whom he did not receive it back for paperwork to choose from.
11 Mar 2020 lawurist7 391
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