Do you need your spouse's consent to donate an apartment?

How to draw up a spouse’s consent to donate an apartment?

Consent is a document by which one spouse allows the other to make real estate transactions. The document is drawn up in writing and certified by a notary office.

IMPORTANT: The document must indicate the passport details of the parties and registration. Specify the property that the spouse plans to give as a gift.

What is the common property between wife and husband?

This is property that the couple acquired while the marriage lasted. It does not matter whether the wife worked or stayed at home with the children, property purchased during the marriage becomes community property. The rule was approved by Article 34 of the Family Code.

3 cases when property does not become common:

• husband or wife received a gift;
• one of the spouses entered into an inheritance;
• property owned by the husband or wife before the official registration of marriage.

The Family Code gave spouses the right to review the property regime. To do this, you need to sign a marriage agreement. In the agreement, the husband and wife indicate who owns the property acquired during the marriage. The agreement receives legal force after certification by a notary. The document can be drawn up before or after registering the marriage.

When is it necessary to obtain a spouse’s consent to donate an apartment?

Do you need your spouse's consent to donate an apartment? The other spouse must approve the transaction if the husband and wife are co-owners of the property. If a wife wants to give an apartment to her son, then the husband must approve the transfer of property as a gift.

When it comes to donating a share, the approval of the second spouse is also required. The interests of all owners of shared ownership must be taken into account if a share in real estate is transferred as a gift.

IMPORTANT: It is necessary to obtain approval for the transaction if the property was purchased in the name of the wife, and the husband did not participate in the purchase.

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When should the other spouse not approve the transaction?

Is it possible to donate an apartment without the consent of the spouse? 3 cases when real estate can be donated without the approval of the second spouse:

1. the property was purchased before the official registration of the marriage.
2. Housing was received by one of the spouses as a gift.
3. The apartment was inherited or privatized free of charge. If one of the spouses paid for privatization, the consent of the second spouse must be obtained.

Article 36 of the Family Code regulated the rule that the owner of real estate has the right to dispose of it at his own discretion.

Notarized consent: possibility of cancellation

The law requires that consent from spouses be certified in writing with the participation of a notary when drawing up an agreement. Such documents are always required if property was acquired during marriage. This has already been said above.

Important! It happens that the second family member has already completed all the documents and notarized them. But then he changed his mind, which is why he wants to cancel the permit. Then the cancellation is also formalized with the participation of a notary.

This must be done before a transaction involving the transfer of property to another owner takes place. After all, property rights will be registered to another person. Refusal usually also requires the use of writing. But it is better to inform the other party and the notary about this in advance.

How to formalize consent to donate a share in an apartment?

A donation is a gratuitous transaction, which differs from a sale. A share in an apartment cannot be sold without the consent of the other owners, but it can be given as a gift. The second spouse's approval for donating a share must be obtained. A deed of gift for a share in real estate must be certified by a notary office.

Changes in legislation have been in effect since July 2020. The transaction will not have legal force without official certification by a notary office. Therefore, if you want to donate a share in real estate, you will have to pay for the services of a notary.

ATTENTION: Law No. 172-FZ indicated that the agreement on the donation of a share must be notarized.

Registration of approval for the donation of a share has its own characteristics.

5 important points of the agreement:

• passport details and registration of the parties;
• actions that are allowed to be done with property;
• exact address and area of ​​the property;
• technical characteristics of the premises;
• share size.

How to correctly draw up a transaction approval document?

The law does not establish strict requirements for the items that must be included in the document. The document must clearly indicate what property is being donated, and also that the second spouse has approved the transaction. An approval form can be obtained from a notary office. If necessary, the form is supplemented with the necessary items.

5 points that must be included in the consent to donate living space:

1. date and place of drawing up the document.
2. Information from your passport, registration.
3. Object address, area.
4. Number and date of issue of the document that confirms the registration of marriage.
5. The time during which consent to the transaction is valid.

IMPORTANT: Approval for a transaction must be in writing and certified by a notary. If the requirements are not met, the document will not have legal force.

The notary indicates in the agreement that the parties give an account of their actions at the time of signing the agreement. The fact of registration of the marriage union has been confirmed.

There is no need to register consent at the Rosreestr branch. The transfer of the right to housing to another owner is subject to registration at the Rosreestr branch.

How is consent drawn up?

Consent is drawn up in writing, it indicates:

• Spouse's full name;
• His date of birth;
• Residence address;
• Spouse's passport details;
• Number and series of marriage or divorce certificate;
• Data on the object for which the spouse agrees to be donated by the donor;
• Date of signing;
• Signature;
• Notarization.

In addition to the consent of the spouse, the consent of the remaining owners who have ownership rights to other parts of the property will be required. Then all information about the exact number and size of areas distributed between the owners must be reflected in their written consent.

Attention

spouse consent.doc

Is it possible to revoke notarial approval for the transfer of real estate as a gift?

The rule that approval of a transaction must be certified by a notary was established by paragraph 3 of Article 35 of the Family Code.

A person can change his mind. At first he agreed to give up the housing, then he changed his mind. Approval for donation can be revoked.

Approval for a gift must be revoked before the property is transferred to the new owner. In order to revoke consent, you need to contact a notary.

If the deadline is missed, you will have to go to court. The chances of a positive outcome are slim. In the document, the notary indicates that the parties are aware of the nature of their actions when signing the approval. You can challenge a donation in court.

Let's give an example. The Supreme Court rejected the demands of the plaintiff, who wanted to challenge the deed of gift. The determination was made in November 2015, case No. 4-КГ15-58. The court refused to revoke the consent to donate real estate. Court verdict:

• The plaintiff did not provide evidence that she did not consent to the transfer of the apartment as a gift.
• The wife gave her consent, the document was notarized. The consent contains information that the spouse can dispose of the property at his own discretion.
• The plaintiff’s arguments that the document was signed in 2008 and she does not remember the essence of the document have no legal significance. The approval for the transaction has not lost its legal force.
• Considering the above, there are no grounds for canceling the deed of gift.

REFERENCE: The court decision shows that approval of a transaction is difficult to challenge. The document was signed by a person who gave an account of his actions. The notary certified the consent. There are no grounds to challenge the deed of gift.

Therefore, you need to weigh the pros and cons before signing the document.

Peculiarities of obtaining spouse's consent

The legislation provides for only one option for registering the spouse’s consent to the alienation of real estate - drawing up a written document with mandatory notarization. Drawing up consent in simple written form, as well as an oral form of consent, is not permitted by law.

To obtain consent, a citizen must contact any notary office of his choice and submit to the notary the following documents:

1. a gift agreement under which real estate is disposed of free of charge.
2. marriage certificate;
3. title documents for residential premises (certificate of title or extract from the Unified State Register of Real Estate);
4. general passports of both spouses;

The notary will check the existence of common rights of the spouses to the property that is to be donated.

If citizens are mistaken in good faith regarding the general rights to an apartment, the notary is obliged to explain this fact to the spouses. The notarial consent of the spouse to donate an apartment is issued on a fee basis; the amount of the tariff must be clarified at the notary's office when handling the documents. As a rule, the preparation of this document is carried out by the notary himself or employees of the notary office, since at the same time the need to issue consent is established.

As a rule, the preparation of this document is carried out by the notary himself or employees of the notary office, since at the same time the need to issue consent is established. Consent to the gift will be required regardless of who the recipient is.

This rule applies even to cases where the recipient of the gift is the common child of the partners.

The spouse’s consent to donate an apartment to a child will be formalized according to general rules, and its availability will be checked by the registration authority. The execution of consent differs significantly from a power of attorney, despite the similar nature of the regulated legal relations. The difference is this:

1. consent can be issued only for a specific property, while powers under a power of attorney may provide for the performance of actions simultaneously with various objects.
2. consent does not give the right to dispose of property assets, as this is provided for by powers of attorney;
3. unlike a power of attorney, notarial consent is not subject to cancellation or termination due to its validity period;

Notarial consent does not have a validity period, so the decision to issue it must be made consciously.

It is also impossible to revoke previously issued consent if the transaction was delayed for objective reasons.

In this case, the spouse who executed the document can contact the Rosreestr authorities directly, notify in writing of a change in his own decision and warn about his disagreement with the conclusion of the gift agreement. Download

What to do if your spouse refuses?

The spouse does not have to approve the transaction if three years have passed since the divorce. After a divorce, the spouses agree on the property that will go to each of them. The period for filing a claim is three years. After this time, you do not need to receive your husband’s approval to donate an apartment.

Until the marriage is dissolved, the wife cannot donate housing without her husband's approval. Exceptions are cases when a woman received real estate before marriage or the housing was given to her as a gift or inherited.

Let us turn to the practice of courts. The Moscow City Court canceled the agreement to transfer the apartment as a gift. The appeal ruling was adopted in November 2020, case No. 33-45269/2016.

The essence of the dispute. A husband and wife bought real estate while legally married. The husband donated shares in real estate without his wife's consent. The wife defended her interests and the interests of the child through the court.

The court's decision:

• The parties, while married, bought an apartment. The documents for the apartment were issued in the name of my husband.
• The husband donated shares in the apartment in violation of the provisions of the Family Code. The recipients of the gift know that the wife did not give consent to the alienation of the property.
• Registration of the transfer of ownership has no legal significance. There is no consent from the wife in the documents, therefore information about the transfer of ownership must be removed from the Unified State Register of Real Estate.
• Information about the wife’s ownership rights is subject to restoration in the Unified State Register of Real Estate.

ATTENTION: A practical example shows that if the second spouse refuses to approve the gift, the transaction will have to be abandoned.

Sample gift agreement for spouse

Advice from lawyers:

1. I am asking for a sample of the spouse’s permission to conclude a gift agreement.

1.1. Good day, look on the Internet for such a permit, but it is drawn up by a notary, and therefore you need to contact him immediately. Good luck in resolving your issue.

Did the answer help you?YesNo

1.2. Good day. There is no such sample, you can contact a notary, since such permission must be notarized and the notary has the text of the permission.

Did the answer help you?YesNo

1.3. I am asking for a sample of the spouse's permission to conclude a gift agreement. The procedure is as follows: 1. The spouse comes to the notary with a passport and there he already makes an application/consent to the alienation of property.

Did the answer help you?YesNo

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2. Sample agreement for determining shares between spouses and donating a share to a son.

2.1. You can search for samples on the Internet, and lawyers draw up such documents for a specific case for a fee. Can be done in one document.

Did the answer help you?YesNo

3. 1 what documents must be provided to the notary to conclude a gift agreement? 2 where can I get a gift agreement? 3 I will give my share to my mother while I am already married, do I need the consent of my spouse (the apartment was purchased before marriage)? Thank you.

3.1. Good evening, dear Degtyarev. 1. Donation agreement, extract from the Unified State Register and passport. 2. You can download it on the Internet or order it from our lawyers. 3. No consent required.

Did the answer help you?YesNo

4. I am the owner of the apartment. A marriage contract has been drawn up with my wife, according to which she does not claim the apartment (a condition of the bank that issued the mortgage loan). When paying off the mortgage, swearing was used. capital, and an agreement was drawn up under which I undertake to allocate shares to my wife and minor children. Tell me what to do correctly in this case and what form of donation to use (sample)

4.1. Hello! There is only one form of donation - donation. Look for samples on the Internet - lawyers make up a fee.

Did the answer help you?YesNo

5. There is a house with a plot, registered in my name, under a deed of gift. How can I now register them as joint property with my wife? What should be the sample contract?

5.1. You can donate a share; it will be shared ownership, not joint property.

Did the answer help you?YesNo

5.2. Hello, Artem. You can give your spouse a share in your property.

Did the answer help you?YesNo

5.3. If you want your wife to become the owner. Give her a share of your property. Donation agreement. You can find a sample on the Internet.

Did the answer help you?YesNo

6. Give a sample agreement for establishing shares and donating 1/2 share of the garage to your wife. Thank you.

6.1. See sample contracts on the Internet.

Did the answer help you?YesNo

7. The apartment is in common joint ownership of the husband and wife. In the contract of donation to children under the obligation of the Pension Fund of the Russian Federation, Rosreestr requires first to divide the shares between the spouses, and then to give the share to the children. Where can I get a sample specifically with the division of shares between spouses.

7.1. You can search on the Internet, or you can consult a lawyer.

Did the answer help you?YesNo

8. Acquired 2/5 shares in an apartment, where 1/5 is mine, 1/5 is my husband’s, 1/5 is my son’s, using mat capital. I need to allocate shares to the children. How to write a gift agreement. The notary also included the spouse in the obligation, although I was only talking about children. Now do I have to allocate a share to my spouse as well? After all, he already has 1/5. The eldest is already 14 years old. I would like a sample gift agreement.

8.1. Yes, the shares should be assigned to everyone - do not draw up a contract, but an agreement on shares, you can also indicate 1/5 to your husband

Did the answer help you?YesNo

9. Sample agreement for donating a share of an apartment for an MFC to an incapacitated spouse from his wife. Only the two of them are registered. Please help, I need it urgently, I can’t find it.

9.1. The same as a regular contract, drawn up in simple written form.

Did the answer help you?YesNo

10. How to draw up a donation agreement for 1/3 of an apartment to your wife? If possible, please post a sample. Thank you.

10.1. Contracts here are made only for money. Look for samples on the Internet.

Did the answer help you?YesNo

10.2. I will help you draw up an agreement, but this is a paid service.

Did the answer help you?YesNo

10.3. Dear Anna! To draw up a contract, it is better to contact a lawyer; there are many subtleties that need to be taken into account; in addition, since you are not related, the donor will need to pay gift tax. Good luck to you!

Did the answer help you?YesNo

11. Obligation for maternity capital, I am looking for a sample agreement on determining shares between spouses and a gift agreement for children (the Rosregistry said it is necessary in this order). my email is [email protected]

11.1. There are similar samples on the Internet. Do a search and you will easily find what you want.

Did the answer help you?YesNo

11.2. No samples are provided as each case is individual.

Did the answer help you?YesNo

12. It is necessary to allocate shares to children in the apartment in accordance with the obligation to the Pension Fund after repaying the mortgage with funds from mat capital. The apartment is jointly owned by me and my husband. I would like to find samples of an agreement on the distribution of shares between spouses and a gift agreement for children. Thanks for the help.

12.1. You can find samples on the Internet. To avoid mistakes, it is better to contact a lawyer in person to draw up such an agreement on a paid basis.

Did the answer help you?YesNo

13. My mother gives me an apartment and has drawn up a power of attorney for my wife with a notary so that she (the spouse) can formalize the donation of the apartment to me on behalf of my mother by proxy. Please tell me where I can find a sample gift agreement by power of attorney. Thank you. Sincerely.

13.1. There is no such gift agreement by power of attorney. There is simply a gift agreement and a power of attorney is attached to it. Look for the contract itself on the Internet.

Did the answer help you?YesNo

13.2. Contact us, we can draw up such an agreement.

Did the answer help you?YesNo

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14. My husband and I are officially married, we bought a house using maternity capital. The house was registered in the name of the husband, but he signed an obligation that after removing the encumbrance on the house, he must divide the house among all family members (me, my husband and 2 minor children). Rosreestr said that an agreement between the spouses on determining shares and a gift agreement for children are needed. How to correctly compose these 2 documents? Can you please tell me where I can find samples of these documents?

14.1. Look on the Internet for both an agreement on determining shares and a gift agreement, specifically for maternity capital.

Did the answer help you?YesNo

14.2. Your agreement will be called an agreement for determining shares and donating shares. First, determine the shares between you and your husband, then write what share you give to which of the children. There are samples on the Internet.

Did the answer help you?YesNo

15. Apartment donation agreement. The donor purchased the apartment during marriage, the registration certificate is in his name alone. Can he and his wife be donors at the same time without obtaining the spouse’s notarized consent to the donation? Is it possible to ask for a sample of such an agreement ( [email protected] )?

15.1. Good afternoon. Notarial consent is required if one of the spouses is involved in the transaction (Article 35 of the RF IC). Look for samples on the Internet. Lawyers prepare contracts for a fee.

Did the answer help you?YesNo

16. The gift agreement was not drawn up correctly. The apartment was purchased during marriage, when they began to draw up a gift deed, both my husband and I were listed as DONators. but according to the right thing, I should have been the giver, and the spouse the Participant. Now you need to draw up an additional agreement. Could you send me a SAMPLE additional. agreements.

16.1. No samples are sent here; there can be only two parties to the contract - the donor and the donee and no participants.

Did the answer help you?YesNo

17. We bought an apartment with a mortgage. The apartment is registered to the husband. We have two kids. We paid off part of the mortgage with maternity capital. Now my husband is obliged to give us all shares in the apartment. They told me to write some kind of agreement between the spouses. Then an agreement to donate part of the share to the children. What kind of agreement is there if the owner is one husband? Can he simply write an agreement for the distribution of shares to us? And do you have a sample?

17.1. The agreement on the allocation of shares is concluded with a notary. After paying off the mortgage, you will be able to allocate shares to all family members by deed of gift, if you need help - write.

Did the answer help you?YesNo

17.2. You have a joint ownership regime. And it doesn’t matter who the property is registered to. To carry out real estate transactions, the consent of the second spouse is required, otherwise the Registration Chamber will not allow the transaction to pass.

Did the answer help you?YesNo

18. A husband, wife and son are registered in the apartment, which is currently under mortgage. The husband has 2/3 of the share, the son has 1/3 of the share. At the moment, it became necessary to allocate a share to the wife. Do I need to have a gift agreement certified by a lawyer or can I draw it up myself using a sample? Thank you.

18.1. you can make your own according to the sample

Did the answer help you?YesNo

19. I want to give my daughter a car. I'm married. The owner is me. OSAGO (without driver restrictions), CASCO issued for a year. Question: Is the gift agreement drawn up by the owner himself, according to the established template and signed by the traffic police in 3 copies or by a notary? Is your spouse's permission required? Is OSAGO and CASCO insurance concluded again with the new owner? Thank you.

19.1. Draw up the agreement in writing and register it with the traffic police. The spouse's consent is not required.

Did the answer help you?YesNo

19.2. OSAGO and CASCO insurance are, of course, for the new owner. The gift agreement can be drawn up in simple written form, without notarization. It is better to take the spouse’s consent to the alienation of property in order to avoid possible legal disputes.

Did the answer help you?YesNo

19.3. Hello! The gift agreement is drawn up in simple written form; it does not need to be certified by a notary. Special permission from the spouse is not required, because it is assumed (presumed) that you are acting with his consent.

Did the answer help you?YesNo

20. The apartment is jointly owned by the spouses, partly paid for by maternity capital. We need a sample agreement on the distribution of shares between spouses and children, as well as an agreement on donating shares to children. Please help me find the correct sample for drawing up documents. Thank you in advance.

20.1. See it for yourself online.

Did the answer help you?YesNo

20.2. Draw up an agreement for donating shares to both children and spouse. Sample on the Internet.

Did the answer help you?YesNo

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Features of donating an object of joint ownership

Regardless of the nature of the real estate transaction acquired jointly during marriage, neither partner will be able to dispose of the property without the consent of the other and obtaining official permission from him. The consent of the husband (wife) is also necessary even in cases where the object of donation is registered in the name of only one of the spouses, who is its sole legal owner.

If the apartment is jointly owned by both spouses, then obtaining the consent of one of them to donate residential real estate may have its own characteristics:

1. if, upon purchase, the apartment was registered as the common property of a married couple, then when donating it, both partners will act as donors;
2. if the apartment was registered as the property of one of them, then the consent of the second must be duly formalized in writing and must be notarized.

Without the consent of the spouse to transfer a joint property as a gift, the transaction will not take place, since the package of necessary documents for drawing up a deed of gift includes the official consent of the spouse, without which the deed of gift will be declared invalid and void.