Non-residential premises do not differ in terms of ownership rights from other types of real estate, in particular from residential premises (houses, apartments).
A transaction involving the donation of non-residential premises (offices, warehouses, garages, building structures, non-residential buildings) is not much different from a transaction where the subject is residential premises.
How to draw up a deed of donation of non-residential premises in 2020, does it need to be certified by a notary, how much is the state duty for the transfer of ownership of real estate?
Rules for registering a deed of gift for non-residential premises
If you do not want to resort to the services of a notary, you want to conclude a deal yourself and so that an employee of Rosreestr or the MFC does not find fault with the text of the agreement, you need to take into account that the following information must be reflected in the text of the document:
- name of the agreement – “Agreement of donation of non-residential premises”, place of its preparation (indicate the city) and date of preparation;
- name of the donor and recipient: their full name, passport details, TIN;
- the subject of the agreement should be the first point of the agreement. It is necessary to indicate specifically the subject of the agreement - the address of the premises, its area, as well as the name of the document on the right of ownership of real estate - technical passport, cadastral passport. Indicate the cost of the premises for a specific date (indicate the price in digital and alphabetical format);
- The second clause of the agreement is the transfer of non-residential premises, transfer of ownership. Here you need to indicate during what period the gift is transferred to the donee, for example, within 10 days from the date of signing the agreement under the acceptance certificate. It is also necessary to indicate that ownership of non-residential premises is transferred to the donee after state registration and receipt of an extract from the Unified State Register of Real Estate. It can also be stated here that the recipient has the right to refuse the gift before the transfer of ownership rights;
- The third point of the agreement is guarantees. The donor must guarantee the recipient that the object of the transaction has not been sold to anyone, it is not under pledge or arrest, has not been leased, etc.;
- signatures of the parties, their legal addresses.
If the premises have any defects due to which the recipient may lose health or life, the donor must inform him about this.
Notarized certificate of deed of gift for non-residential premises
A contract for the donation of non-residential premises does not require mandatory certification by a notary. A simple written form with the signatures of the parties is sufficient for the transaction to be recognized as legal.
However, many lawyers still insist that the donor contact a notary, since there are some features of concluding a transaction and drawing up the agreement itself, on which the correctness of the agreement may depend.
The notary will help you draw up the agreement correctly and tell you what documents should be prepared for transfer to Rosreestr.
The recipient will have to pay for notary services . There is no specific figure, since the cost is influenced by several factors: the provision of additional services by the notary, consulting clients, printing out the agreement, copying documents, etc.
Normative base
The main feature of a gift agreement is the free transfer of a house, car or other property to another person.
The legislative norms that regulate the rules for drawing up such an agreement, as well as the relationship between the donor and the donee, are contained in Art. 572 Civil Code.
He can be:
- real. The donor has a desire to donate any object of property and immediately formalizes a transaction to fulfill this desire;
- consensual. The donor expresses in writing his desire to transfer any property free of charge in the future.
The parties to the agreement can enter into a transaction either in ordinary written form or in notarial form. If a notary is involved in concluding a transaction, the parties can receive a duplicate of the deed of gift in the event that in the future their copy is lost or destroyed under unfavorable conditions.
The notary also acts as a witness to the conclusion of the transaction between the donor and the donee and, in the event of legal proceedings, can confirm the fact of execution of the gift agreement on a voluntary basis.
Partially or completely incapacitated persons cannot receive property as a gift. In addition, the law prohibits an employee of a medical, municipal or educational body to act as a donee.
Registration of transfer of ownership rights to non-residential premises in Rosreestr
In order for the recipient to become the legal owner of the donated premises, he needs to go with the donor to Rosreestr or MFC, give the original gift agreement in 3 copies with the necessary document package.
On site, an employee of Rosreestr or the MFC will ask the donor and recipient to fill out an application . In addition, before going to Rosreestr, you need to pay the state fee, so that you don’t have to come back and stand in line again.
The state fee for registering the transfer of ownership of real estate is 2,000 rubles for an individual and 22,000 for a legal entity. The recipient must pay the state fee.
Donation
The gift transaction is concluded between two parties. The donor is the owner of the transferred property, and the donee can be any person.
Such relations are regulated by Chapter 32 of the Civil Code of the Russian Federation . The concept of a gift agreement is given in Art. 572 of the Civil Code of the Russian Federation , which states that donation is a legal act within which property is transferred from its owner to another person free of charge.
Attention. If you have any questions, you can consult with a lawyer for free by phone throughout Russia. Calls are accepted 24 hours a day. Call and solve your problem. It's fast and convenient.
The donor can only be that citizen who owns this or that property by right of ownership, and at the time of concluding the agreement is fully adequate and capable. The presence of a family relationship between the parties to a transaction is not a prerequisite for the agreement, just like a written form. The object of donation can be: an apartment, valuables, expensive household items, copyrights.
Minor children can also take part in the transaction. If the issue concerns small household items, then they can dispose of the item at their own discretion; for other items, the presence and consent of the guardianship service, as well as the parents or other legal representatives of the child, will be required.
The donation agreement form can be downloaded from our website. You can view and download here: [Sample apartment donation agreement].
Advantages of transferring ownership of an apartment under a gift agreement
A gift agreement has several significant advantages over a purchase and sale agreement or the drafting of a will. Advantages of a gift agreement:
- A donation acquires legal character and legal status only when the transfer of residential premises occurs, and not at the time of registration with the Federal Reserve System, as a purchase and sale agreement. In other words, the recipient becomes the owner of the apartment from the moment the donation document is signed.
- In some controversial situations, a gift agreement may be a solution. For example, if the apartment is in shared ownership, and one of the owners does not want to sell his share. Then the remaining owners can transfer the property to another person through the donation procedure.
- Property that is donated cannot be the common property of the spouses.
Disadvantages of transferring ownership of an apartment under a gift agreement
Pitfalls when buying an apartment under a gift agreement can become a significant condition for refusing such a transaction. The point is that giving has more than just benefits. Disadvantages of a gift agreement:
- Gratuitousness of the gift agreement. Such a transaction is undesirable, since in the event of controversial situations or suspicion of fraud, this legally significant action will be very difficult to challenge.
- Giving is an unconditional act. When concluding an agreement, the donor does not establish any conditions for the transaction.
- Taxation of gift agreements. In this case, income tax of 13% is paid only by that citizen who is not a close relative of the donor.
The pros and cons of a gift agreement are essential for deciding whether to enter into such a transaction.
Comparison of an apartment donation agreement with a purchase and sale agreement
The purchase and sale agreement and the gift agreement have significant differences:
- Purchase and sale is a compensated transaction in which the owner of the apartment receives an agreed amount; donation is a gratuitous act.
- The gift transaction is unconditional, but the purchase and sale agreement specifies a number of conditions that must be observed so that the transaction is not considered void.
- When concluding a purchase and sale transaction, it is necessary to pay a state fee for registering the deed, and when making a gift, a person who is not related to the donor will have to pay income tax in the amount of 13% of the value of the property.
- The donation agreement becomes valid at the time of signing, and the purchase and sale agreement becomes valid after state registration.
In the event that the transfer of housing occurs between relatives, then the best option is a gift transaction, and when transferring housing between strangers, it is best to choose the execution of a deed of sale .
Comparison of an apartment donation agreement with a will
A will and a deed of gift also have a number of fundamental differences. First of all, the recipient can take possession of the property immediately after signing the gift agreement. The heir can receive the property only after the death of the testator within six months.
Termination of a gift transaction is almost impossible, but a testamentary act can be replaced or even canceled by the testator at any time.
As for the cost of registration, the deed of gift will cost approximately 2,000 rubles , but in order to draw up a will and then receive property from it, you will need to pay a state fee in accordance with the Tax Code of the Russian Federation .
In the event of a conflict situation with the transferred property, it is almost impossible to challenge the deed of gift (this will require filing a claim in court), which cannot be said about a will, which can easily be re-registered by a notary.
Concluding a deed of gift is suitable for those people who are related and have no conflicts with each other. The testamentary act is used by citizens who, although they transfer property to their heirs, but after their death.
The most popular questions and answers to them on the advantages and disadvantages of an apartment donation agreement
Question: Hello. Dear experts, could you please help me with advice. My name is Natalya, and I would like to give my apartment as a gift to my daughter, but the problem is that she is married, and I don’t really like her husband. Can I issue a deed of gift only for my daughter, and will her husband then be able to claim the apartment?
Answer: Hello, Natalya. You can completely calmly draw up a gift agreement in favor of your daughter. The deed of gift has the advantage that when transferring property to spouses, it cannot become their joint property (according to Article 34 of the RF IC ), therefore, if you write only your daughter in the gift agreement , then only she will be able to dispose of the apartment, since it will be hers personal property that is not jointly acquired by spouses.
Conclusion
We formulate the advantages and disadvantages of the gift agreement in a number of conclusions:
- A deed of gift implies the transfer of the property of the donor to the recipient.
- There are written and oral forms of agreement.
- Minor children, whose interests are represented by their parents or guardians, can also take part in the transaction
- Children under 14 years of age have the right to make only donations that relate to small household items and personal items that are not expensive.
- The object of the agreement can be both an apartment and intangible property, such as copyright.
- It is almost impossible to challenge a gift transaction, and the only way is to file a claim with the courts.
- A gift agreement has both pros and cons. In some situations, such an agreement may be the best option, and in some cases, another form of legal agreement should be used.
- purchase and sale transaction is more acceptable than a gift for those people who are not related, since it minimizes possible conflict situations and makes it possible to challenge the agreement, if necessary, in court.
- It is best to draw up a deed of gift between relatives. This will help you save money and avoid some difficulties with registration.
- A testamentary act is also an option for transferring property between citizens, but after the death of the owner. This method is chosen when the owner of the property wishes to transfer it to his successors only after death. If he wants to do this earlier, then a deed of gift can be concluded.
- The cost of registering a deed of gift is much lower than a will if the transaction occurs between relatives.
Samples of applications and forms
You will need the following sample documents:
- Sample apartment donation agreement
List of laws
- Article 572 of the Civil Code of the Russian Federation
- Article 34 of the RF IC
Taxation when drawing up a donation agreement for non-residential premises between close relatives
A gift agreement is usually drawn up by close relatives for each other, for example, a father for his son, a daughter for his mother, a grandfather for his grandson. The advantage of registering a deed of gift between first-degree relatives is that the recipient does not have to pay personal income tax.
Taxation when drawing up a deed of gift between unrelated persons
If the parties to the transaction are not relatives, moreover, they are not related by first degree kinship, then the donated property is subject to tax.
In this case, the object of donation is equal to the income received and is therefore taxed.
The recipient will have to pay personal income tax to the state treasury in the amount of 13% of the market value of the donated object.
Legal consequences
The execution of such an agreement provides for private law consequences, as well as various public obligations and new powers on the part of the donor. Since the donor's ownership of the specified property in this case is terminated, he loses any rights associated with it and can no longer freely dispose of it.
After completing the necessary formalities, creditors also do not have the right to foreclose on the provided property due to the donor having any debt obligations, and at the same time, in connection with the transaction, he cannot have any tax or other obligations to the fiscal services for the reason that that the gift transaction is classified as gratuitous and provides only losses for the donor.
It is worth noting that after the transaction is completed in accordance with the consensual agreement, the donor undertakes the obligation to provide the donee with the promised object, and this obligation can be implemented voluntarily or forcibly if the donee demands it and receives an appropriate court decision. Also, in the future, execution may be canceled if the situation complies with the provisions of Article 577 of the Civil Code.
Article 577. Refusal to execute a gift agreement
After completing the donation transaction, the donee has the opportunity to dispose of the property at his own discretion, using it and carrying out any operations, but at the same time, if he is not a close relative of the donor, he must pay a tax to the treasury equal to 13% of the market value of the transferred property.
