Agreement on donating shares to children when purchasing an apartment using maternity capital: rules for registration, sample writing

Home » Housing disputes » Agreement on donating a share of an apartment to children based on maternity capital

Many Russian families with two or more children have already appreciated the opportunities that a maternal certificate (MC) gives them, while most families use MC funds to purchase housing or improve their living conditions. But when buying housing using MS, there is a mandatory condition: part of the residential premises purchased or improved with maternity capital must be transferred to the ownership of the children. The most optimal way to transfer a child's share when buying a home using MS is to draw up a gift agreement.

Donation agreement for children's share when using maternity capital

According to Art. 10 Federal Law No. 256-FZ dated December 29, 2006, any residential real estate acquired or improved with the help of MS funds must be registered in the common shared ownership of all family members, both parents and children, including minors.

Often, the transfer of part of the housing into the ownership of children is formalized by agreement, which determines the children's share, and also stipulates the size of the shares of each family member. But, often, to transfer a child’s share, parents use a method of allocating a share of property to a child, such as drawing up a gift agreement. This method, taking into account the requirements of the law on MS, is not indisputable, but there is no prohibition on its implementation in Russian legislation.

The ambiguity arose due to the fact that not a single article of the law describes the procedure by which the share of housing acquired with the help of the MS should be transferred to the child, and each law enforcement official interprets the legislation in his own way, for example:

The Chamber of Notaries, in its letter No. 2305/03-16-3 dated 06/01/2016, refers to the requirements of Part 4 of Art. 10 Federal Law No. 256. The letter states that, in accordance with these requirements, at the time when the residential premises were purchased, the co-owners already had the right to common shared ownership of the housing; accordingly, the transfer of the children's share should occur by agreement.
On the other hand, in 2015, the Volgograd Regional Court made a decision according to which, in the law on MS, an agreement should be understood as an agreement that certain shares will subsequently be determined, and not the type of document by which these shares will have to be transferred. If we follow the logic of this court decision, then the transfer of part of the property into the ownership of children should be carried out through a civil transaction. A gift agreement is just such a transaction.

Example

Nina Petrova, when she got married for the second time, had a daughter from her first marriage, and soon the couple had a second child, a son. After the birth of her second child, Nina received MS, and the couple decided to improve their living conditions, sold their joint one-room apartment, added maternity capital funds and bought a two-room apartment with an improved layout.

Since the couple received MS after their common child was born, they drew up an obligation to allocate a share in the new apartment to Nina’s daughter from her first marriage. In accordance with this obligation, they transferred 1/4 of the living space to each of the children, issuing deeds of gift for their shares of the apartment property.

Special conditions when purchasing an apartment

When purchasing an apartment, certain features of the transaction are taken into account, which create certain difficulties in its execution. The possibility of receiving maternity capital in the form of a certificate gives parents not only the right to purchase real estate, but also obliges them to allocate shares to their born children in the real estate purchased under the certificate. At the same time, the law provides for its distribution in the form of shares to all family members. Since minors themselves, due to their young age, do not have the legal right to participate in the transaction, the mother or father becomes the owner of the property, or they distribute the living space in shares.

Important! Residential real estate purchased with the participation of maternity capital must belong to all family members, including young children. Those. Both parents and each of their children must have a certain share of property. These shares do not have to be equal.

Parents' compliance with this condition is controlled by the Pension Fund of the Russian Federation. Before approving the purchase of an apartment, the Pension Fund requires parents to submit a notarized obligation to allocate shares in the purchased living space to their children. At the same time, they can do this by donating a certain part of their own share or by donating their entire shares to them.

Based on a notarized obligation to allocate shares in the apartment to their children in a fixed amount, a document is signed transferring these shares into their ownership. After purchasing a home, property is registered for each owner.

How can you fulfill your obligation to allocate a child’s share?

The choice of method and deadline for fulfilling the obligation given by the parents to allocate the children’s share depends on several factors:

residential real estate is purchased ready-made or under construction (reconstruction);
exactly how housing is purchased (purchase and sale, mortgage loan, etc.), that is, in accordance with what agreement the Pension Fund transfers funds to the MS;
which spouse at the time of purchase is declared the title owner, that is, for whom the documents are drawn up during the procedure for purchasing or reconstructing a residential premises.

According to the existing rule, the main (title) owner of the apartment must transfer the residential premises into common ownership no later than six months after:

The Pension Fund of the Russian Federation transferred the MS funds to the seller - in the case of a purchase and sale transaction and registration of ownership;
the last installment has been paid - in case of installment payment according to the purchase and sale agreement;
The mortgage loan has been fully repaid and the encumbrance in the form of collateral has been removed – when purchasing a residential property with a mortgage;
a cadastral passport for a residential premises was obtained - during the construction of a new individual housing construction project or an apartment building;
The last contribution to the housing cooperative has been paid - if the family participates in a housing construction cooperative.

For example, the Novikov family entered into an agreement to participate in a housing construction cooperative; they regularly paid all fees for three years. Then their second child was born, the child’s mother received MS, which the family decided to invest in housing construction. They paid the last installment to the housing cooperative ahead of schedule and were able to register ownership of the residential premises. Since the agreement on participation in the housing cooperative was concluded only by the parents, they drew up an obligation to allocate mandatory shares to the children. The Novikovs visited a notary's office and issued deeds of gift for each of the children.

It is not always the parents themselves who can choose the option of distributing shares and transferring the children’s share into ownership. Registration of donation of a child's share is possible in the following cases:

the property is owned by the parents as joint property;
the mother is the owner of the premises, while the parents are divorced;
the apartment is owned only by the mother or father according to the marriage contract.

Donating shares to children when purchasing housing using maternity capital

In order to transfer to their minor children a share in housing purchased with funds from maternity capital, parents must enter into a gift agreement . As a rule, when purchasing real estate, it is registered as the joint property of the spouses. Subsequently, parents are obliged to transfer part of such property to their children.

However, in addition to rights, parents also acquire a number of responsibilities, and one of them is to allocate a share when buying a home using mat funds. capital. The parents themselves decide in what way this obligation must be fulfilled - they have the right to draw up an appropriate notarial agreement or enter into a gift agreement .

How to draw up a gift agreement correctly

Mandatory condition: the gift agreement must be drawn up in writing.

Donated minors under the age of 14 do not have the right to sign the gift agreement themselves, so one of the parents signs for them. Children who have reached the age of 14 sign themselves, but in the obligatory presence of their legal representative.

If only one parent of a minor is involved in the gift transaction (in case of divorce of parents, or in cases where the child is being raised in a single-parent family), an employee of the guardianship and trusteeship department acts as the legal representative of the minor.

Is it possible to give an apartment purchased with maternity capital as a gift?

Maternity capital is paid in Russia for the 2nd child (or subsequent) - regardless of whether he was born to the spouses or adopted by them. In accordance with the law, this payment is intended for certain purposes:

improving living conditions;
children's education;
increasing the funded part of the mother's pension;
adaptation of a child with a disability.

In most cases, parents choose the first option and use the certificate to improve their living conditions, within which they can:

Buy a house or apartment.
Build or reconstruct a house - on your own or with the help of a construction company.
Compensate for costs that were previously incurred during the construction of a house or its reconstruction.
Pay the first installment for a loan received for the purpose of building or renovating a house.
Pay the loan principal or interest.
Pay the price according to the DDU.

It is important to take into account that the house or apartment must be located only on the territory of the Russian Federation, and also that cosmetic repairs are not considered an improvement in conditions.

After living conditions have been improved, many citizens have a question: is it possible to donate an apartment purchased in this way - after all, the citizen becomes the full owner?

Donation of an apartment with maternity capital

First of all, the portal bukva-zakona.com notes that this transaction does not contradict the requirements of the law - which means it can be done, but provided that the following requirements are met:

The person acting as the donor of the apartment must own it by right of ownership.
The participants in the transaction (both the donor and the donee) must be fully capable.
The transaction must be gratuitous (that is, the person to whom the apartment is transferred must not transfer anything in return).

If we talk about the procedure itself, it is standard and practically no different from donating real estate that was acquired without using family capital provided by the state. So, for donation you need:

Agree on making a donation

Because donation implies the voluntary consent of both parties - both the person who wishes to donate housing and the citizen into whose ownership it is planned to be transferred.

Prepare the necessary documentation

Russian legislation establishes a list of documentation required to make a donation - if any document is missing, the authorized body employees will refuse to register the transaction for the parties.

In accordance with the requirements of the law, to donate an apartment you must prepare:

Passports of the parties (persons who act as the donor and the donee);
The original document confirming the donor's ownership of the object of the transaction.
Technical passport for the facility.
Receipts confirming the absence of debt for housing and communal services.
A certificate confirming that the apartment is not under arrest and is not subject to collateral.
Consent of the co-owners (executed in writing) to the complete or partial alienation of living space.
Certificate confirming the conclusion or dissolution of a marriage relationship (if available).
Written permission from the guardianship authorities to complete this transaction.
A certificate containing a list of persons registered in the apartment.
A certificate confirming that the donor is not registered with a narcologist or psychiatrist.

Obtain written consent from the guardianship authorities

The consent of the authorized body is also a prerequisite - to obtain it, the party (the owner of the apartment) must submit a corresponding application. The guardianship authorities, in turn, will conduct an inspection, and only after making sure that the rights of minors are not infringed will they issue the applicant with the necessary document.

To make an agreement

The gift agreement can be drawn up in any form, but must contain:

Information about the parties (full name, passport details, place of registration).
Detailed description of the writing of the object of donation.
Information about the document confirming ownership.

You can draw up a contract yourself, or use the services of specialists in this field.

Pay the state fee

Payment details can be obtained directly from the authorized body.

Sign the agreement in the presence of an authorized Rosreestr employee

After signing the agreement, it, as well as other necessary documents, will need to be submitted to Rosreestr.

Receive documents with a registration mark

At the specified time, you will need to appear at Rosreestr and receive the completed documents.

( 1 votes, average: 5.00 out of 5)

Where to go to draw up and execute an agreement

According to Federal Law No. 172 of 06/02/2016, any transfer of shares in a residential building must occur under the mandatory control of a notary, that is, you will have to contact a notary’s office in any case.

Notary officer:

draw up a draft agreement;
will check the mutual desire of the parties, that is, find out whether one of them is trying to carry out a deal under pressure on the other side;
will check whether the parties to the transaction are legally competent (are they sane, or is one of the parties under the influence of alcohol, drugs, psychotropic drugs);
draw up and certify the document;
seal it with the seal of a notary office.

Currently, notaries also provide such a service as registering a transaction in Rosreestr, but this service is paid for separately.

Of course, to save money, you can compose the text of the document yourself, but this can only be done if you have document management skills and are confident that you will take into account all the nuances of the transaction.

You can also seek help in drawing up a deed of gift from a lawyer who:

will tell you what information needs to be included in the contract;
will help calculate shares;
will advise where it is better to complete the transaction.

Required Documentation

The registration of a donation agreement for a share of an apartment from maternity capital can be carried out independently or in a notary’s office.

The advantages of notarization are:

An experienced lawyer will not allow the contract to be drawn up incorrectly and the participation of incapacitated persons in it without their legal representatives.
The notary can explain in detail and clearly to the parties involved in the transaction all the nuances of the agreement and its consequences.
In the event of legal proceedings, an employee of a justice institution can act as a witness to confirm the fact that the agreement was concluded voluntarily, without deception, not under the influence of threats or misconceptions.
One copy of the agreement and the act of acceptance and transfer of housing remains in the notary's office. This will allow you to restore the document if it is damaged or lost.

To have a contract certified by a justice institution, the parties to the transaction must collect and submit the following materials:

identity cards of all parties to the agreement;
the original document certifying the donor's ownership of the property;
technical passport for the apartment;
receipts for payment of utility bills;
a certificate stating that the object of the donation is not under arrest or pledged;
consent of the co-owners of the living space to its full or partial alienation;
permission from guardianship authorities to participate in the reception of property of incapacitated persons;
an extract from the house register or a certificate of persons registered in the apartment;
marriage or divorce certificate.

As a rule, such a package of documents suits the servants of the law. Some of them recommend taking the donor to an appointment with a psychiatrist and narcologist on the day of signing the documents. The certificates received will confirm his full legal capacity.

Price

Many donors are interested in the question: will they need to pay for the registration of a deed of gift? Yes, according to Art. 22 of the “Fundamentals of Notary Legislation”, the donor will have to pay a state fee in the amount of 0.5% of the price of the donated share. The minimum and maximum possible amount of state duty is also indicated there: the amount to be paid cannot be lower than 300 and higher than 20,000 rubles.

For example, if parents give their child part of an apartment worth 1 million rubles, then the amount payable will be: 1,000,000 * 0.5% = 5,000 rubles.

In addition, when drawing up a deed of gift at a notary's office, you will need to pay for drawing up the gift agreement and printing the document. There may be other, additional costs, for example, if you involve a notary in registering property rights in Rosreestr, then this service will cost you from 5 to 15 thousand rubles, depending on the region.

To register a transaction in Rosreestr, you will also need to pay a state fee, it is 2,000, and it must be paid by the citizen receiving the extract from the register, in this case, the recipient. But since the beneficiary is a minor, the parents will have to pay the state fee.

Sequence of property alienation

The procedure for donating an apartment purchased with maternity capital is no different from the alienation of other similar property. The procedure and rules for such transactions are described in Chapters 9 and 32 of the Civil Code of the Russian Federation.

The algorithm of actions for re-registration of housing is as follows:

Verbal agreement on all alienation issues.
Collection of materials necessary to conclude a transaction.
Drawing up a draft contract. This is done if its conclusion will take place in a notary’s office. When registering on your own, three forms must be filled out.
Signing documentation at a justice institution.
Payment of state duty.
Submitting the necessary papers to the territorial office of the Federal Registration Service of Cadastre and Cartography or to a multifunctional center (if there is one in the locality).
Notification of a change of ownership by representatives of the BTI and Housing Office.
Submitting a declaration form 3-NDFL to the tax office.

Drawing up a donation agreement for a share of an apartment using maternity capital is carried out according to the same principle.

Can they refuse to donate a share to children in an apartment purchased under MS?

Rosreestr may refuse to register a transaction under an agreement to donate a share of residential premises to a minor. In what cases can this happen?

The reason for refusal will be:

The presence of errors, inaccuracies, or typos in the text of the gift agreement. Such oversights most often occur if the document is drawn up by the donor independently.
Incorrect calculation of the share intended to be transferred to a minor.
Lack of title documents for the residential premises in which it is planned to transfer part of the living space to a minor.
No information about MS.
Sanitary or minimum standards have been violated. If a child is given a share of an apartment whose area is less than the minimum (6 sq.m.), then Rosreestr will not register such a transaction.
Not all required documents have been submitted.

The refusal will be issued in writing. The document will necessarily indicate the reason why the institution refuses to register property rights. If the refusal is motivated by the lack of some documents, then they can be provided within a week, but if the refusal is due to some errors, then the best solution would be to draw up a new gift agreement.

Sample agreement for donating a share in an apartment to minor children: all the design features

Also, if the gift of a share in an apartment to children occurs in a family, then both spouses must agree to this transaction.
For example, a father bought an apartment and decided to give its share to his son from his first marriage. But his current wife is against such an action and does not give her consent. The content of this document is always the same, so you can easily find a sample agreement for donating a share in an apartment to a minor child on the Internet. But it’s also worth remembering that you must edit the contract to suit yourself, some things you need to include and some you don’t.

Consequences of failure to fulfill contract obligations

So, you have entered into a gift agreement. What happens if obligations are violated?

A person who violates an obligation under a gift agreement may face the following:

The court will force the donor to comply with the terms of the agreement.
A fine or other administrative penalty may be imposed on the violator.
The Pension Fund will require the return of the entire MS amount.
The court may seize the property of the offender, including an apartment, a share in which should be gifted to the minor.
In particularly difficult situations, the offender may face criminal punishment in the form of a suspended sentence.

For example, Nadezhda and Maxim Potapov spent MS funds on the last payment on a mortgage loan to purchase a three-room apartment. After the encumbrance in the form of a pledge was removed, the couple issued deeds of gift for shares of the apartment for their two sons. But, after more than six months, the parents still did not bother to visit Rosreestr and register the donated shares as the property of the children, that is, in fact, the children never became the owners of their square meters.

The guardianship and trusteeship authorities reminded the Potapovs several times that they were obliged to register their sons' ownership of shares in the residential premises, but the spouses did not react in any way. PLO employees contacted the Pension Fund, which, in turn, demanded that the Potapov spouses return the entire amount of the MS.

Only after the PF demand did the spouses realize that the PLO were serious in their demands and turned to Rosreestr to obtain an extract from the Unified State Register of Real Estate.

A donation agreement for a share of an apartment using maternity capital is not just a document about the desire to donate part of one’s property to a child. This is a voluntary decision to transfer ownership of part of the residential premises acquired using MS to a minor citizen, therefore the implementation of this decision will be closely monitored by the guardianship and trusteeship authorities and the Pension Fund.

If you are experiencing even the slightest difficulty with paperwork, or do not understand where to start, it is better for you to seek help from professionals. On our website you will find this help if you contact specialists online or call the numbers provided.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then

describe your situation to a lawyer in an online chat;
write a question in the form below;
call Moscow and Moscow region
call St. Petersburg and region

Save or share the link on social networks

(
2 ratings, average: 5.00 out of 5)
Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

Ask a question Author's rating

Articles written

513

- FREE for a lawyer!

Write your question, our lawyer will prepare an answer for FREE and call you back in 5 minutes.

By submitting data you agree to the Consent to PD processing, PD Processing Policy and User Agreement

Useful information on the topic

How to evict your roommate from your apartment

Neither legal nor civil marriages provide guarantees of long and...

Is it possible to evict tenants in winter?

Renting out an empty apartment is quite a profitable business, especially...

Privatization of land under an apartment building

You can privatize not only a separate residential building, apartment or land...

Privatization of an apartment with debts on utility bills

Debts often become the main reason for refusing privatization, thereby...

How much does it cost to privatize an apartment?

Privatization of an apartment is a free procedure, but only within the cost...

Demolition of privatized housing

Any housing, including privatized, under certain conditions...

Basic aspects of donating real estate

According to Art. 572 of the Civil Code of the Russian Federation, donation is a procedure in which valuable property voluntarily, free of charge and unconditionally passes into ownership from one owner to another.

The main features of the procedure are:

A donation agreement for a share of an apartment with maternal capital can only be signed with the consent of the guardianship authorities, if the rights of the children are not infringed.
Giving a share to a minor is prohibited even by his legal representatives. They can do this themselves when they are recognized as capable.
It is not allowed to put forward counterclaims to the presenter. Such agreements are very easy to terminate in court.
It is not allowed to include in the text of the agreement a clause stating that the property becomes the property of the donee only after the death of the donor. Such a condition makes the transaction void, since it relates to the inheritance procedure.
It is permissible to include in the contract a condition that it must be canceled if the recipient survives the donee. In this case, the property is returned to the previous owner.
Address re-registration. All or part of the donated living space is the personal property of the donee. It is not divided into shares during a divorce.
Ownership passes to the recipient immediately after signing the contract.
The agreement must be in writing and undergo state registration.

As a rule, the alienation of property is carried out from parents to children or between parents. Further, about the sequence in which this procedure is carried out, and what documents will be needed for this.