How to formalize a waiver of property in favor of another person

In the process of privatization of an apartment, which often takes place with the shared participation of relatives , many difficulties occur.

In the future, it will be problematic to sell or rent out such an apartment. In this case, some decide to re-register their property.

how to give up your share in an apartment in favor of another owner , relative or child.

Dear readers! Our articles talk about typical ways to resolve legal issues. If you want to find out how to solve your particular problem, call the free consultation numbers:

Relinquishment Laws

The grounds for the emergence, transfer or termination of property rights are regulated by the Civil Code of the Russian Federation. Special conditions for renunciation of ownership rights, including real estate, are specified in Art. 236 of the Civil Code of the Russian Federation.

This procedure is characterized by the following features:

Important!

Art. 236 of the Civil Code of the Russian Federation provides that even taking actions to renounce property will not entail legal consequences until another person acquires rights to the property.

In addition, in Art. 235 of the Civil Code of the Russian Federation establishes other options for termination of ownership rights, which can be used along with direct refusal:

• alienation of real estate to third parties under paid or gratuitous transactions;
• destruction of real estate;
• loss of property rights due to legal requirements.

Relinquishment of ownership rights to a share in an apartment

A person who has a share can get rid of it by drawing up a deed of gift or an apartment purchase and sale agreement. To do this, you need to call a BTI representative and get a new technical passport. The remaining homeowners must give permission for the transaction to take place.

With the collected documents, they turn to a notary, who will draw up the necessary agreement for the recipient. Then the transaction is registered in a specialized center and a certificate of receipt of ownership rights is issued by the person to whom the share is transferred.

When the property is not privatized, a refusal to privatize is written and officially certified by a notary.

In a situation where part or all of the apartment is inherited, but the documents have not yet been drawn up, a renunciation is written in favor of another person or the rights to the inheritance are simply not declared, which leads to the automatic transfer of your share to other recipients after 6 months.

Waiver Explained by Experts

The rule on renunciation of property rights has not yet found wide practical application, but experts are confident that with the development of market relations this issue will become increasingly relevant.

Renunciation of the right of ownership of owned property, according to the law, can only be made by an individual or legal entity.

This formulation implies that neither the Russian Federation, nor its constituent entities, nor municipalities have the opportunity to abandon the property on their balance sheet. In addition, from Art. 236 of the Civil Code it follows that, while retaining the right of ownership, the owner of an abandoned thing, before it passes into the ownership of other persons, has the right at any time, through his actions, to restore possession of the specified property.

On the form of refusal, freedom of speech and economic activity

However, legislators do not specify the form in which the owner will announce his refusal.
How should such an announcement be made: orally or in writing? If the latter, then it is not indicated whether it is necessary to publish an announcement of refusal in the media. It is also not determined whether such an announcement should be made before a specific government agency or subject of civil law. Because the announcement of refusal is addressed to an indefinite number of persons, the question inevitably arises: is it necessary to apply to it the rules on invitations to make offers and on public offers contained in Art. 437 Civil Code. Lawyers note that the renunciation of ownership of property by the owner through an announcement may lead to termination of ownership only in cases provided for by law. Otherwise, any announcement by the owner of his intentions regarding ownership will be governed by Art. 29 of the Constitution of the Russian Federation, which guarantees everyone freedom of speech. Accordingly, the owner is given the right to publicly announce his attitude towards property rights, set certain conditions, withdraw his announcement, etc.

In addition, it must be taken into account that Article 34 of the Constitution guarantees everyone the right to freely use their own property for commercial activities. Therefore, the law may establish cases in which the owner’s use of freedom of speech for the purpose of announcing any decision regarding his property rights is considered the use of this property for business activities.

On establishing the fact of refusal and the possibility of its cancellation

There are two ways to renounce ownership rights: by declaring the renunciation and by performing other actions. The first is applied in relation to real estate and must be submitted to the body that carries out state registration of the relevant objects. This rule is enshrined in the “Regulations on the registration of ownerless real estate by justice institutions for state registration of rights to real estate and transactions with it,” approved by Government Resolution No. 580 of September 17, 2003. The owner is required to submit an application for refusal to the relevant local government body , which is determined by the location of the property. From the moment the application is submitted, the ownerless property regime is imposed on the object. However, the previous owner may:

• request a suspension of the procedure;
• take the property back into possession, use and disposal (by submitting an appropriate application to Rosreestr within a year from the date of registration of the property);
• declare no intention to renounce your property rights.

If the “refusenik” again takes possession, use and disposal of the property, the specified object is deregistered.
Actions performed within the second method relate to movable things and may be of a factual nature (for example, throwing away). Article 236 requires that they testify (and definitely, leaving no doubt or ambiguity) about the removal of a person from the possession, use and disposal of property. Those. all 3 of these categories are placed side by side, from which it follows that to establish the fact of refusal, it is not enough to remove the owner from only one or two of them. In addition, part 2 of Art. 236 establishes that the recorded act of refusal does not entail the termination of the rights and obligations of the owner, as the person who refused continues to be called, and does not change his position. Therefore, the “refusenik” can cancel this act at any time (in other words, refuse the refusal). By this legislative norm, legal consequences are associated not with the act of the owner of a thing renouncing the right of ownership, but with the subsequent act of acquiring this right by another person. It is from the last moment that the ownership right of the person who renounced the property is considered terminated.

Waiver procedure

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In legal practice there is such a concept as renunciation of property. Based on Article 235 of the Civil Code of the Russian Federation, each owner of real estate or movable property can renounce his rights to it, in other words, cease to be the owner of the object.

There are several ways to relinquish ownership of a particular property.

Although the procedure for registering a refusal differs depending on the basis for the emergence of ownership of a specific property, according to Article 236 of the Civil Code of the Russian Federation, the process has one common feature - to carry out an official refusal, a citizen undertakes to announce his decision publicly or take certain actions indicating his intentions and reluctance dispose of things that belong to him.

It is important to understand that the alert should not contain any ambiguous meaning. Voluntary refusal implies that the citizen has no intention to receive this property in the future.

According to Russian legislation, legal entities and citizens can renounce their rights to real estate. Refusal is impossible if we are talking about property owned by the state, constituent entities of the Russian Federation or municipality.

In addition, a citizen who has renounced property is able to restore his property rights before the property passes into the possession of third parties.

As mentioned above, the procedure for registering a waiver of ownership of property largely depends on the basis for the citizen’s rights to a specific object. In legal practice, there are 3 main options for abandoning property:

• donation;
• refusal of a share of the inheritance due;
• deprivatization.

To understand how to formalize a refusal in a specific case, you should take a closer look at the nuances of each procedure.

Donation

Drawing up a deed of gift is most suitable when the owner wishes to give up property in favor of a close relative. When donating, real estate is transferred from one person to another free of charge.

If the transfer of property as a gift is carried out between citizens who are in close family relationships, the parties to the transaction are exempt from paying income tax. If the participants are not relatives, the personal income tax will be:

• 13% of the inventory value of the property for residents of the Russian Federation;
• 30% – for non-residents of the country.

The gift agreement is drawn up in simple written form and does not require certification by a notary, on the basis of Article 574 of the Civil Code of the Russian Federation. To properly complete a transaction, you need to collect some documentation, namely:

• registration certificate for the property subject to alienation from the BTI;
• documents of title on the basis of which the donor acquired ownership rights (for example, an exchange agreement);
• passports of the parties to the transaction;
• documentary evidence of relationship (if required);
• certificate from the Unified State Register of Property to be alienated.

In some cases, the list of documents may be increased (for example, when alienating a share of property related to property acquired during marriage, the consent of the spouse is required). The exact list of papers can be checked with an employee of Rosreestr or the MFC. After the recipient receives a new certificate, the refusal procedure will be officially completed.

Useful article: Obtaining a cadastral passport for an apartment.

Refusal of inheritance

Most often, a waiver of a share of the inheritance is drawn up in the case when, along with the property of the testator, the remaining debts and loans of the deceased person are transferred to the successors.

The refusal is issued exclusively by contacting the notary in charge of a specific inheritance case with a written application.

In addition, the successor must provide the specialist with his passport.

It is necessary to renounce the inheritance within six months from the date of opening the procedure, that is, from the date of death of the testator. The refusal can be issued without specifying the persons in whose favor the property will pass, or to another heir claiming the property under a will or in the order of legal priority.

The documents can be presented either by the successor in person or by his legal representative (if he has a valid power of attorney).

The concept of giving up a share or an apartment as a whole

Abandonment of property means the cessation of any activities with the property.

Article 236 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation) formulates the following conditions for such a procedure:

1. Any citizen whose right is officially registered can renounce an apartment (share in an apartment).
2. The owner must announce the removal from possession.
3. Refusal is voluntary.

Until the new owner acquires the property, all rights and obligations (for example, payment of utilities) remain with the original owner.

Legal grounds for refusal of share

The grounds for the emergence of shared ownership are determined by Article 244 of the Civil Code of the Russian Federation. The general reasons for termination of rights are established in Article 235 of the Civil Code of the Russian Federation.

Most often in practice the following types of relinquishment of a share in real estate are encountered:

• when accepting an inheritance;
• when privatizing an apartment;
• when signing a purchase and sale agreement;
• when drawing up a deed of gift.

The procedure for registering a waiver of part of an apartment depends on the chosen option.

Registration of deed of gift

The most common way to renounce a share is through a gift transaction. The owner has the right to dispose of his share, including donating it to co-owners or third parties. To draw up a deed of gift, only the consent of the donee is required.

The deed of gift must contain the following information:

• personal information about the parties to the transaction;
• cadastral number of the property, its address;
• area of ​​the transferred part of the apartment;
• information about the donor’s right to real estate (he must be the owner);
• a list of persons who are registered in the apartment, but do not have ownership rights to it;
• presence of encumbrances.

To renounce your share in an apartment by registering a deed of gift, perform the following steps:

• draw up a written gift agreement;
• submit the following documents to the Rosreestr office located at the location of the property: cadastral passport, passports of the parties to the transaction and documents confirming the rights to the share;
• Thirty days are allotted for registration;
• the donee pays a state fee of 13% of the value of the share. If the donee and the donor are related, then the state duty is not paid;
• When making a gift in favor of a third party, the consent of each of the co-owners of the residential premises is required.

ATTENTION! Look at the completed example of donating a share in the ownership of an apartment:

Watch the video. What is a share in an apartment:

Refusal of joint property

For such a refusal to acquire legal force, simply telling the former partner: “Take everything, I don’t need anything!” is not enough.

The decision must be documented. Otherwise, the renouncing spouse does not lose his rights to common property.

During the entire limitation period, he may change his mind and demand his share back. Therefore, you should not rely on oral agreements. A written document must be drawn up.

The renunciation of joint property must be formalized only on paper - spoken words are worth nothing.

How to formalize a refusal?

You can renounce your rights to common property both before the divorce and during the divorce process.

If conversations about this began during married life, the husband and wife can draw up a prenuptial agreement. It will make it possible to establish certain conditions for the disposal of property after a divorce, including the ownership right of one of the spouses to common property.

If one of the spouses wishes to renounce jointly acquired property during a divorce, then formalizing the refusal is very simple:

• draw up a voluntary agreement - such a document on the division of joint property has legal force and requires mandatory notarization;

• draw up a settlement agreement - the document is confirmed by the court during the divorce process. If the judge is sure that he does not violate the rights of the husband or wife, he will approve it with his ruling.

If a spouse who has renounced his claim to his share of the community property tries to avoid paying common debts in this way, this action will be considered illegal. Both property and debts are divided between husband and wife in a 50/50 ratio.

The renunciation of common property can be formalized voluntarily through a notary or through the court.

What property is not subject to division?

The law has a clear list of things that are not subject to division between spouses:

• property acquired by a husband or wife before marriage. It does not matter how it was received - purchased, gifted or inherited. In any case, such property is not divided;

• office and municipal real estate. The object of division cannot be service, municipal or departmental apartments, as well as housing under a commercial lease agreement. It does not belong to the spouses;

• items for personal use. These can be instruments (musical, construction, plumbing, etc.), clothing, shoes and other household items that each spouse uses individually;

• intellectual property. It is impossible to divide the exclusive right to the result of intellectual activity created by one of the spouses. In any case, such property belongs only to the author;

• indivisible and complex things. An indivisible thing is an object that you cannot use if you physically separate it. For example, a car. In this case, it remains with the person who uses it most often. The other spouse is paid 50% compensation;

• children's property. Property acquired by spouses for children or purchased in their name is not divided. For example, a computer or an apartment;

• property under a marriage contract. Property assigned to each of the spouses under a marriage contract is not subject to division.

Note!

Carefully review the list of items that cannot be divided. This will help you draft the quitclaim agreement correctly.

Receipt for waiver of claims to property

Giving up your share of property means that you transfer your property rights to your second spouse. This cannot be done through a receipt. Such a document is unilateral and has no legal force.

A receipt for abandonment of property has no legal force.

Refusal of a share in a privatized apartment

The law gives owners the right to transfer their share in the apartment to another person.

The most common reasons for abandoning real estate are:

• registration of an apartment for one of the family members;
• the opportunity to improve living conditions (for example, participation in one of the government programs);
• unwillingness to accept the responsibilities of the owner.

It will not be possible to dispose of a share in a privatized apartment if the apartment is seized (Federal Law No. 229-FZ “On Enforcement Proceedings,” Article 80). The transfer of real estate in this case will be considered unlawful.

Refusal options: donation, purchase and sale

Registration of a deed of gift or conclusion of a purchase and sale transaction are the main ways to relinquish a share in an apartment.

Drawing up a gift agreement is the simplest procedure. The document has a simple written form and does not require the participation of a notary. Only the consent of the donee (the person to whom the share is transferred) is necessary.

To register a deed of gift in Rosreestr, you need to pay a state fee (2,000 rubles).

If the property is transferred to a close relative, no income tax is charged. In other cases, the new owner pays a tax fee of 13% of the cadastral value of the share (find out how the cadastral value is calculated).

When can you refuse?

If part of the property is inherited and the future owner does not want to accept it , then he must not enter into inheritance rights .

If part of the apartment is already in shared ownership, then you can cancel in the following ways:

• sell your part;
• draw up a deed of gift .

Voluntarily in favor of another owner

If the owner of a share in an apartment wants to transfer it to another owner , then he has the opportunity to issue a deed of gift to another person.

their relatives as the donee citizen . The transfer of rights can also be carried out during the process of housing privatization .

Transfer of rights to parents

Refusal in favor of close relatives ( father or mother ), as well as the owner's guardians, is permitted by law .

Since parents are first-degree relatives , refusal in their favor is justified , and citizens often resort to a similar procedure.

To learn how to gift a share to your parents, watch the video:

For the benefit of the child

Refusal in favor of a minor citizen is provided for by law . However, in this case, one nuance must be taken into account.

Download the parental consent statement for the renunciation of the share in favor of the child here.

A child may be the owner of a share in an apartment , but due to his age, he cannot sign and make decisions like an adult.

Therefore, the presence of legal guardians and representatives in such transactions is mandatory.

How much does a refusal cost?

Any of the above actions will require certain costs. Most of the paperwork is done by notaries. Let's look at how much a refusal costs.

Note. The drafting of contracts by a notary depends on the transaction price. You can find out the exact amount in your case during a preliminary consultation.

Consequences of giving up a share

After execution of the purchase and sale or donation agreement, another person becomes the owner.

Then the former owner should:

• through the passport office, cancel the registration at the previous address and register in another place;
• vacate the property within the agreed period - remove your belongings.

However, in case of refusal of privatization, the person has the right to reside in this territory. His registration address does not change even after an application to the court. If the apartment is subsequently sold, the purchase and sale transaction will not cancel the residence of the specified person in this living space.

Advantages and disadvantages

What to choose if you already have a share in the apartment and need to give it up?

The choice between these methods of transferring a share to another person is made depending on specific conditions.

The most important features of the alienation of shares

What problems usually arise for parties to shared alienations? What must be taken into account when registering a waiver of a share in an apartment if everything happens through an alienation transaction?

Shared ownership and its grounds

Common shared ownership is property where each owner has a specific share in it.

The circumstances under which property is owned by shares are varied:

1. mutual consent of owners;
2. the court's decision;
3. other circumstances entailing shared property.

Read our article about what a share in an apartment is and how it arises.

Paragraph 1 of Article 245 of the Civil Code of the Russian Federation stipulates that property is divided in equal shares, unless otherwise provided by law or agreement.

Article 245 of the Civil Code of the Russian Federation. Determination of shares in the right of shared ownership

1. If the shares of participants in shared ownership cannot be determined on the basis of law and are not established by agreement of all its participants, the shares are considered equal.

Each owner of a part of his property has the right to dispose of it as he wishes .

Sample consent for a transaction with property in common shared ownership.

Features of refusal in favor of the state

The share is transferred to the state as a result of deprivatization. This is a procedure for canceling a privatization agreement and returning property to the country. This procedure is carried out exclusively through the court. The initiator of the proceedings can be any owner of the apartment or the relevant control authorities if a violation of rights has been identified.

You can file a claim to invalidate the privatization agreement within three years from the date of transfer of the apartment for privatization. You can only return the apartment in its entirety.

Consequences of termination of ownership

Although real estate is registered with the state for a period of 1 year until a new owner appears, the relinquishing person must perform the following actions:

1. Pay related taxes as usual.
2. Properly maintain the property.
3. In the event that, as a result of certain actions, real estate causes damage to someone or something, the former owner is responsible for this.

Until a new owner appears, the state, through laws, does not recognize the final decision to abandon the property. As a result, both responsibilities arise and the opportunity to reconsider your decision in certain cases.