Another successful case challenging an apartment donation agreement in Moscow on the basis of a significant misconception regarding the nature of the transaction (Article 178 of the Civil Code of the Russian Federation)

In Russian legislation you can find a fairly large amount of information that relates to the issue of real estate ownership.

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Many people believe that a gift agreement cannot be challenged, but this is not true. When considering breaking a deal, you need to take into account the time during which it will be possible to do this.

How long is the deed of gift valid?

The document drawn up and signed comes into force immediately after passing the state registration procedure.

After this, the document is considered unlimited, that is, its validity is not limited. However, in some cases it may be challenged in court.

In some cases, the donor specifies the time after which the agreement comes into force. If it is drawn up at home by hand, registration is carried out within three years from the date of compilation.

Lawyers do not recommend putting this moment on hold, as serious problems may arise in the future.

How to restore the deadline for challenging a gift in 2020

Restoration of the statute of limitations means the fact that the court will protect the violated rights of the applicant, even after the expiration of the period of challenge established by the legislator. However, it's not that simple.

Expert opinion

Lyudmila Kim

Invited expert: author of the “Child Support” blog, practicing family lawyer, 7 years of experience.

To accomplish this, the plaintiff is obliged to provide the court with irrefutable evidence of the valid reasons that became an obstacle to his going to court. In 2020, such evidence may still include travel certificates, medical documents, etc.

Among the main valid reasons, the presence of which allows you to increase the statute of limitations, it is worth highlighting the following:

1. military service;
2. caring for a seriously ill relative or disabled person;
3. illiteracy (in fact, lack of understanding of the Russian language and legislation) - as a rule, applies to foreign citizens;
4. a helpless state caused by the use of psychotropic drugs, alcohol or difficult emotional experiences (for example, due to an accident or the loss of a relative);
5. a serious illness, or more precisely, its treatment in an outpatient clinic (the very fact of illness, without hospital treatment, is not a valid reason);
6. long business trips of the plaintiff;
7. serving a sentence in a pre-trial detention center.

EVERYONE NEEDS TO KNOW THIS:

How to draw up a debt gift agreement?

It is worth understanding that we have given only the most common good reasons. You can read the rest yourself or ask our lawyers by writing in the chat.

The limitation period for a gift agreement - how to determine?

The calculation of the period under consideration is carried out from the day when the person learned about the violation of his own rights.

In most cases, the starting point depends on the plaintiff:

1. If a previously concluded transaction is disputed by one of the interested parties, then the deadline begins from the moment the agreement is signed.
2. In the case where the contract is contested by a third party, the period begins from the moment when the person learned of the violation of the right.

Note! For a void gift agreement, the period is 3 years, for a voidable one, no more than 1 year. Such standards were established at the legislative level to ensure that the plaintiff had a sufficient amount of time to determine whether rights were violated.

Challenging a share donation agreement

Advice from lawyers:

1. Is there a time limit when it is possible to challenge a donation agreement for a share in an apartment?

1.1. Any transaction can be challenged within the limitation period - Articles 196, 200 of the Civil Code of the Russian Federation.

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1.2. The limitation period is three years, it begins to run from the moment when the person whose right was violated became aware of it. Contact us if you need help.

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1.3. There is 1-3 years depending on the grounds for challenging.

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2. Can a donation agreement for 1/2 shares of an apartment be challenged?

2.1. Only if the donor tries to do it. But we need good reasons, which are specified in the Civil Code of the Russian Federation.

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3. My parents gave me 2/4 shares of the apartment. Can they challenge this gift deed?

3.1. Article 578 of the Civil Code of the Russian Federation. 1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor. 2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss.

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3.2. The donation can be canceled in accordance with Article 578 of the Civil Code of the Russian Federation. Cancellation of a donation 1. The donor has the right to cancel the donation if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor. 2. The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss. He can also challenge it if he did not direct his actions during the donation, did not realize their actual nature, etc. ,

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3.3. They just can’t, because they changed their mind, for example. They can cancel the donation or invalidate the gift agreement on the grounds specified in the law. This is not easy to do.

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4. In August 2020, my current neighbor in a communal apartment bought a room from a neighbor through a micro-share donation agreement and a simultaneous purchase and sale agreement for the remaining shares of the room for 1.45 million rubles. The room was sold according to this scheme because... there was no refusal from me to purchase the room and there was no notarized notification of the sale of the room. Can I now challenge this transaction and transfer ownership to myself? How much will I have to pay for the room if I win the case?

4.1. It is unlikely that you will succeed. The fact is that you hopelessly missed the statute of limitations for this category of cases - 3 (three) months from the day when you learned or should have learned about the violation of your rights (in this case, about the transaction that took place). No, you can try to restore it, but the chances are microscopic. Therefore, the answer to your main question makes no sense.

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5. I would like to clarify this question. My dad died 7 years ago and I did not share in the inheritance, because my grandmother is still alive. But my grandmother made a deed of donation of half the house to my sister and half to her second son. With the hope that my sister will share with me. Can I dispute something?

5.1. You could accept the inheritance on the same basis as your grandmother. Since you did not do this, the grandmother became the owner of the house. She has the right to freely dispose of her property. There is nothing to dispute here.

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5.2. Hello, So is grandma alive? The heirs (1st stage) of the father are the spouse, children, parents. How old were you at the time of your father's death? Where is your mother? I wish you good luck and all the best!

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5.3. Your father was the heir of the first stage (Article 1142 of the Civil Code of the Russian Federation), i.e. he had the right to inherit the property of his mother (grandmother) on an equal basis with other heirs of the first priority. Therefore, in such a situation Art. 1146 of the Civil Code of the Russian Federation - the share of an heir by law who died before the opening of the inheritance or at the same time as the testator passes by right of representation to his corresponding descendants... and is divided equally between them. From this point of view, perhaps something will work out. However, with a gift agreement the situation is much more complicated.

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6. There are 6 of us owners in the apartment. I would like to give my 1/6th share of the apartment to my mother by registering a notarized deed of gift. Is the consent of the other 4 owners required to re-register property? Can other owners or my creditors somehow challenge this gift agreement?

6.1. Mayan! What does a “notarized power of attorney” have to do with it if we are talking about a gift agreement? Get yourself together and sort out your thoughts and plans first! :sm_ad:

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6.2. Not required, the transaction is notarized, donate.

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7. Is it possible to challenge a will if it is drawn up by a drinking person in the name of a stranger. He was constantly drinking alcohol, which can be confirmed by neighbors, the police, an ambulance, a drug dispensary, social security, and is there a court decision to cancel the agreement to donate his share of housing on his part to the fraudster?

7.1. Tatyana Alexandrovna, you have every chance to challenge this will in court.

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8. In this question: I own 1/2 share of the apartment and this is my only home and property. I want to draw up a gift deed for my minor son (14 years old). Can bailiffs challenge a gift agreement if, after dividing property with my ex-spouse, enforcement proceedings have been initiated against me in the amount of 400 thousand rubles? This is also my only minor son’s only home and he is registered in an apartment.

8.1. Hello. They can challenge it. They cannot foreclose on the only housing.

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9. Please tell me. The mother has an apartment in which she owns 1 share. Also, my younger sister is the owner of 2 shares. One is hers and her daughter is a minor. Mom has rent debt and a bank loan. She wants to write a deed of gift for her share in the apartment in my name. In the event of her death, will I inherit her bank debt under the gift deed? Will the bank be able to challenge the agreement and take my share against the debt? Thank you.

9.1. The gift agreement does not apply to relations arising from inheritance. You are confusing a gift with a will. If enforcement proceedings on loan payments have not been initiated and there is no prohibition on registration actions, then the bank has no grounds to appeal the transaction. An arbitration manager will be able to challenge the transaction if bankruptcy proceedings are initiated against your mother.

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10. Question about the deed of gift, can it be challenged? 15 years ago, my grandmother gave the apartment one share to me, one to my mother and one to my dad. Mom transferred her share to me, i.e. Now the apartment is registered in my name and in my father’s name, there is a green card. Can a grandmother challenge a gift agreement?

10.1. Olga, hello! Gift agreements are among the most easily terminated after annuity. Therefore, yes, it may well depend on many different circumstances. To assess the risk you need to know your situation in more detail. (In pursuance of the Rules approved by the FPA of the Russian Federation, protocol dated September 28, 2016 No. 7, the legal information provided above does not constitute legal advice.

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10.2. Hello, deeds of gift are very often cancelled, so maybe details are needed to fully answer your question.

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11. Can my husband’s ex-wife challenge the donation agreement for his share in the apartment (my husband wants to donate his share to me), provided that the husband has arrears for alimony penalties.

11.1. Maybe if this apartment was purchased during their marriage and after the divorce the property was not divided. If this is your joint property, then why give it away (you won’t be deprived of your only home)

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12. My husband and I bought a plot of land during our marriage, indivisible (6 acres), in the future we want to build a house, how to arrange everything for ourselves so that the husband does not lay claim to the house with the plot after the divorce. If you draw up a marriage contract, can it be challenged in the future? Or how to formalize the donation of a share of an indivisible plot?

12.1. Hello! Formally transfer the right of shared ownership of a land plot from your spouse to you (purchase and sale, or donation). After registering the house, enter into a marriage contract, or again transfer of shared ownership. Good luck!

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13. My mother drew up a contract of donation of her share of the apartment to my sister, secretly from me, can it be challenged? The contract was signed 5 years ago, I didn’t know.

13.1. You are not a party to this agreement. Your mother was not obliged to notify you of the conclusion of the contract. You cannot challenge the contract, because... there is no legal basis.

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13.2. No! Your mother, as the owner, had every right to dispose of the property, which she did. And what you didn’t know, she didn’t have to inform you.

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13.3. Irina, you can go to court under Article 3 of the Civil Procedure Code of the Russian Federation, if there are grounds for recognizing the gift agreement as invalid, you will be responsible for proving Article 56 of the Civil Procedure Code of the Russian Federation.

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13.4. Uv. Irina, the fact that you did not know about the agreement is not a reason to challenge it. You can challenge it only if your mother was mentally ill on the day the contract was concluded. Disease or disorder.

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14. During marriage, an apartment was purchased and 1/4 was divided among family members (husband, wife, 2 children). I've been divorced for a year now. The ex-husband offers to buy his share, but the notaries say that because... Less than 3 years after the divorce, I do not have the right to buy his share from him. They offer to draw up a deed of donation of his share to the child. But this is a gratuitous contract. But what about the money that I give him? How to insure yourself? And can he ever cancel the contract or challenge it?

14.2. According to Art. 38 of the Family Code of the Russian Federation, within 3 years after the date of divorce, each spouse can file for division of property acquired jointly during marriage. 1/4 of his share and 1/4 of your share is property acquired jointly during the marriage, for which each of you can file for division. Draw up an agreement on the division of common property (into shares), which must be notarized. And only after that you can buy out his share in the purchase and sale.

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15. In case of a gift agreement after death, can relatives challenge and return their share.

15.1. Svetlana Yuryevna, of course, relatives can challenge (go to court), but if everything is of good will, and the donor is sane, then it is unrealistic to recognize the transaction as invalid.

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15.2. Hello Svetlana Yurievna. You can challenge a gift agreement under two conditions: 1. If you have not missed the statute of limitations of 1 year or 3 years (Article 181 of the Civil Code of the Russian Federation), which is calculated from the date of execution of the gift agreement. Or 10 years, if the donation was of an imaginary nature, i.e. a transaction made only for show, without the intention of creating corresponding legal consequences. In accordance with Art. Art. 196, 200, 201 of the Civil Code of the Russian Federation, clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2020 N 43 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period”, the inheritance of the deceased (things, other property, including property rights and obligations) are transferred to other persons in accordance with the procedure of universal legal succession. The transfer of rights in the manner of universal succession (inheritance) does not affect the beginning of the limitation period and the procedure for its calculation. In this case, the limitation period begins to run in the manner established by Article 200 of the Civil Code of the Russian Federation, from the day when the original owner of the right learned or should have learned about the violation of his right and who is the proper defendant in the claim for the protection of this right. 2. If the donor, when making the donation, suffered from diseases that affect his ability to give an account and manage his actions. Or, as I already indicated, the donation was imaginary. Or it was committed under the influence of violence or threat. Sincerely, Karasev S.A.

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16. In joint ownership with my sister, a one-room apartment, she is selling her shares under the guise of a gift agreement. Should I have been present at the notary and signed the article number, if so, and what documents are needed to challenge the deal in court? At the moment, I only have email correspondence with sister where she says that the buyer gives her more.

16.1. You do not have to personally be present at the notary. But in this situation, you can recognize the transaction of donation of a share, Article 572 of the Civil Code of the Russian Federation, as invalid on the basis of the pretense of the transaction, that the donation essentially covers the purchase and sale. And use email correspondence as evidence.

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16.2. When donating, the owner-seller of a share should not ask for permission or consent to donate his share. But during the sale, the shared co-owners have a pre-emptive right to purchase. You really need to invalidate the transaction in court. To do this, it is necessary to provide any evidence of the sham of the transaction. But it is also important to correctly draw up a statement of claim and formulate correct claims.

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17. My son and I share a 2-room apartment, each with 1/2 share. 2 weeks ago I was preparing for a case, I am a defendant, based on claims for the collection of amounts under a loan agreement, where the plaintiff asks to impose a restriction on my share in the apartment. The trial will be in 2 weeks, I would like to give the share to my mother, before the trial we will have time to receive all the documents, i.e. at the time of the court hearing, the share will no longer be mine. Can the court or the plaintiff challenge this transaction (donation agreement)

17.1. Hello, if a request for interim measures is filed, then the share will be seized immediately, no one will wait for the court hearing. Check the information in the USR, perhaps the arrest has already been established. Good luck and all the best.

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18. I live in the apartment where I am registered with my parents. The apartment is privatized by us in equal shares. My parents decided to draw up a deed of gift for me in part of their shares. Are there any special requirements for a gift agreement? Will my brother, who did not participate in the privatization and is not registered in this apartment, be able to challenge it? Is it necessary to have a contract certified by a notary? Thank you in advance.

18.1. Transactions with shares are formalized only by a notary (Federal Law dated July 13, 2015 N 218-FZ (as amended on February 28, 2018) “On State Registration of Real Estate” Article 42). It's almost impossible to dispute.

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19. My father gave me a share of the apartment by gift. Currently, my father has legal disputes regarding a bank loan, but the share of the apartment is not specified in the loan agreement. Can the bank challenge the gift agreement to repay the father’s loan?

19.1. Good afternoon The loan agreement does not mention any interest in real estate unless it is a mortgage agreement. The question is about the following: when the bank’s claims for loan repayment arose and the deadline for writing the deed of gift. If your deed of gift is not registered in the Real Estate Register. Those. has not been registered, the bank has the right, through bailiffs, to seize the debtor’s property.

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20. Grandfather wants to leave me his share in the house, but he doesn’t want to sign a gift agreement. He wants to make an agreement according to which after his death the share will become my property. But the grandfather still has a son, who will be the heir in the first place, and who is disabled. What kind of agreement is this? And can his son challenge this agreement in court and claim his grandfather’s share?

20.1. Good afternoon Grandfather means the will. It is good for you if it is, but your disabled son will still be able to claim a mandatory share of the inheritance. If there is another inheritance, then it will be separated from it, but if this house is his entire inheritance, then from your share he will receive his obligatory share if he is an incapacitated disabled person or is dependent on his grandfather and can prove it. Alternatively, you can enter into a rental agreement with your grandfather for this house. But it’s difficult to protect yourself 100% here.

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20.2. The agreement according to which, after his death, the share will become your property will be void, and the rules of inheritance by law will apply. If the grandfather draws up a will for his share in the property in your favor, then the rules on compulsory share will apply (Part 1 of Article 1149 of the Civil Code of the Russian Federation): the disabled children of the testator, his disabled spouse and parents, as well as the disabled dependents of the testator, inherit regardless of the contents of the will are at least half the share that would be due to each of them upon inheritance by law.

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Is it possible to somehow challenge or cancel the donation agreement for 1/2 of the apartment,

Tell me, is there a risk when buying an apartment that was purchased using maternity capital?

Please tell me. We want to buy an apartment with a mortgage. The grandmother left 1/2 of the share to the seller and the grandmother left another 1/2 to her son.

Please, I donated a share of the LLC to my relative

Is it possible to challenge a gift agreement if the mother-in-law gave her share to a distant relative the day after the court decision,

We are divorcing my husband and dividing our property peacefully. How best to arrange (deadlines, fin.

Tell me, if the father transferred his share in the house to the children under a gift agreement, can he challenge it. And does he have the right to live there because he is registered there?

In May 2020, the brother and his father drew up an agreement to determine shares in the apartment and on the same day the brother executed an agreement to donate his share to his father.

My ex-husband and I share ownership of the garage. My husband expressed a desire to give me his share.

My father has a lot of debts in different organizations and banks. So here's the question.

My father wrote a deed of gift for me alone, and I also have 2 brothers AGREEMENT

Is it possible to suspend and interrupt the limitation period?

In some cases, the statute of limitations may be shortened or extended. These points are prescribed in civil legislation:

1. The occurrence of an indefinable and emergency situation related to the property specified in the gift agreement. This category includes the emergency condition of real estate, the development of various disasters.
2. When martial law is declared or in the event that one of the parties serves in the Armed Forces.
3. If a court decision was made that such a right should be suspended. Most often they are associated with illegal actions of one of the parties.
4. In case of temporary suspension of the Civil Code.

Note! The above information indicates that one of the parties cannot suspend or interrupt the limitation period at its own request.

Claims may arise from several parties:

• From the donor himself. There is often a situation where the person transferring ownership changes his mind after drawing up and registering the contract. The former owner will not be able to return the property at his own request, but it is possible to change it due to the changed situation. An example would be a case where the recipient hid information or exerted undue influence on the donor.
• At the donee. This situation is extremely rare; most often the conditions for the transfer of property, as well as the timing of inheritance, are disputed.
• From a third party, which is the creditor or mortgagee. It is often possible to encounter a situation where the lender did not formally formalize the transaction. If your own property was transferred to another person, then such actions are considered unlawful.
• Direct heir. When registering a deed of gift, the rights of heirs are not taken into account. However, they can challenge such a decision.

Let's celebrate! If the statute of limitations was changed illegally, such actions will subsequently be declared invalid. An example is the case where it is stipulated in the text or reflected in an additional agreement.

How to restore and extend the period?

If the court has determined that the plaintiff’s rights have been violated, then they can be restored even beyond the considered period.

However, to obtain such a decision, it is necessary to provide evidence that the specified period in the civil code was missed for valid reasons. Moreover, such reasons must last for at least six months.

Valid reasons include:

1. The helpless state of one of the persons. An example is the case of drug and alcohol abuse, various psychotropic substances. This category also includes emotional experiences.
2. If the gift agreement was drawn up and registered at the time of military service, then such a case is also considered a valid reason.
3. Serving a sentence in prison. It does not matter under what article the plaintiff was previously convicted.
4. Caring for patients undergoing treatment at home (relatives or family members).
5. Foreigners who do not know the Russian language and legislation can also extend the period under consideration. This situation is due to the fact that the person who has the right to the property, due to his illiteracy, was unable to challenge the deed of gift in a timely manner.
6. Serious illness. It is worth considering that such a concept does not appear in legislation or medicine. The court considers only the case when the plaintiff is in hospital treatment or undergoing rehabilitation.
7. If the plaintiff’s profession involves long business trips in remote regions. To extend the period in this case, it is enough to submit travel documents or an order for transfer to a remote place of work, for example, abroad.

The above list is far from complete, since the court considers each appeal.

There are quite a large number of cases when you can challenge a deed of gift. The limitation period for the contract in question ends at the moment when one of the interested parties files a lawsuit to declare it invalid.

Let's celebrate! A filed claim may be pending for a long period of time. The legislation provides for its extension in cases where the period is less than six months.

Didn't find the answer to your question? Find out how to solve exactly your problem - call right now: +7 (Moscow) +7 (812) 309-53-42 (St. Petersburg) It's fast and free!

The position of the legislator, the definition of the term and the claim period in 2020

By the term “voidable transaction” the legislator means any invalid transaction, except those that can be classified by him as void. At the same time, such an agreement can still be challenged in 2020 only in court, which distinguishes it from a void agreement, which is invalid in its essence, that is, initially (at the conclusion of the transaction).

Thus, a transaction can be challenged in court only after the donation agreement is signed and the object of the donation is transferred from the donor to the donee. At the same time, the legislator allows filing such a statement of claim not immediately after signing the agreement, but after a fairly long period of time. Simply put, contested gift transactions have their own statute of limitations.

Based on the provisions and information contained in Article 195 of the Civil Code of the Russian Federation, the limitation period is the period within which an interested person can protect his rights that were violated by one of the parties to the donation.

Similar claims regarding the legality of the executed gift agreement may arise:

1. At the donee party. Most often, the requirement of the claim is the demand to transfer to him the object promised by the donor or the rights to it.
2. On the giving side. As a rule, we are talking about canceling the agreement or refusing to make a donation for any reason.
3. Mortgage holders as well as creditors. Some unscrupulous citizens try to donate property that was subject to collection for credit debts and loans.
4. The heirs of the donor (by law and will).

EVERYONE NEEDS TO KNOW THIS:
Vehicle donation agreement - form and sample 2020

According to the legislation in force in Russia in 2020, the statute of limitations for voidable transactions is 1 year. It is during this period that the legislator guarantees the protection of the applicant’s rights.

However, the end of this period is not always a reason for refusing to consider the claim. Another period is usually applied by the judicial authority in cases where one of the parties makes a corresponding request before the actual court decision on the stated claims or if one of the parties has valid reasons why it could not file a claim earlier.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

Simply put, the limitation period is established within the framework of civil law, and any attempt by the parties to change its duration by agreement between themselves (reflecting the duration of the period in an additional agreement or, for example, stipulating it in the body of the agreement itself) will lead to the recognition of the entire transaction as invalid! Only the court can change the term!