I received an apartment through a deed of gift, but people were registered there. What does this mean for me?

Features of the gift agreement

The general rules on donation of Chapter 32 of the Civil Code .

The features are as follows:

Concluded in writing . This obligation follows from the 2nd part of Article 574 of the Civil Code, since the cost of an apartment (donation) obviously exceeds 5 minimum wages.
No proof of contract now not required. Despite the fact that Part 3 of Article 574 of the Civil Code provides for the need for state registration, this applies only to transactions concluded until March 2013 (302-FZ).
Notarization too not required, although professionals advise resorting to it specifically in the case when a deed of gift for an apartment is drawn up for a stranger or between non-close relatives.
This is primarily in the interests of the donee: a notarized transaction is more difficult to terminate, challenge, or invalidate.
You will have to pay the appropriate fee for notary registration.
The contract must indicate the apartment being transferred in the same detail as during the sale (address of its location, all its characteristics). This is an essential condition, as follows from paragraph 2 of Article 572 of the Civil Code: without this, the contract is void.
It must be indicated that the apartment is being transferred free of charge .
If some kind of counter-provision is provided (money or things in return), then the rules of the Civil Code on sale or exchange, and not the provisions of Chapter 32, will apply to the relationship.
Donation is possible only between living people . When making dispositions in the event of death, a citizen draws up a will in the prescribed manner (3rd part of Article 572 of the Civil Code). Also, it cannot be given as a gift to the deceased or the unborn.
The law establishes cases of prohibition (Article 575 of the Civil Code) and restrictions (Article 576 of the Civil Code) of donation. For example, if the apartment is owned by spouses, the deed of gift will require the consent of the husband or wife (2nd part of article 576, 253rd article of the Civil Code)
Article 577 of the Civil Code lists cases of possible refusal by the donor .
It is especially emphasized that since the transaction is gratuitous, the donee will not be able to demand compensation for losses. We are talking only about losses caused by cancellation, but if they are caused by defects in the apartment, then according to the rules of Article 580 and Chapter. 59 of the Civil Code, they are compensated in full. For example, the apartment had hidden defects, and the tenant received physical damage as a result.
Article 578 of the Civil Code is devoted to the abolition of donations It is possible if the gifted person: has encroached on the life or health of the donor or his relatives; destroys property, etc. In all these cases, a claim is filed to cancel the contract.

Tax calculation when donating an apartment and payment procedure

EXTREMELY IMPORTANT TO READ : The Ministry of Finance and the Tax Service believe that citizens are required to pay a tax of 13% of the market value of real estate, and not from the cadastral value, i.e. based on market prices for real estate on the date of donation. After all, the market value is quite higher than the cadastral value. However, the Supreme Court of the Russian Federation, which read the tax legislation differently, does not agree with this. On October 21, 2015, the Presidium of the Supreme Court of the Russian Federation approved a review of the practice of courts considering cases related to the application of Chapter 23 of the Tax Code of the Russian Federation. This document was approved in order to ensure uniform approaches to resolving disputes related to the application of the provisions of Chapter 23 of the Tax Code of the Russian Federation; it defines the legal positions regarding the question of what value of the gift to calculate the 13% tax. Paragraph 6 of the Review - The tax base for the gift of real estate between individuals can be determined based on its CADASTRAL (inventory) value. This paragraph of the Review states that Chapter 23 of the Tax Code of the Russian Federation does not directly determine on the basis of what specific documented data on the value of property a citizen is obliged to calculate tax when donating property from another individual. Clause 6 and clause 7 of Article 3 of the Tax Code of the Russian Federation states that acts of legislation on taxes and fees must be formulated in such a way that everyone knows exactly what taxes, when and in what order he must pay, and all irremovable doubts contradictions and ambiguities in acts of legislation on taxes and fees are interpreted IN FAVOR of the taxpayer. According to clause 3 of Article 54 of the Tax Code of the Russian Federation, individuals calculate the tax base on the basis of INFORMATION received in established cases from organizations and (or) individuals about objects of taxation. Such information about the object of taxation may include official data on the cadastral value of the donated real estate, obtained from the state real estate cadastre. If the cadastre does not contain information about the cadastral value of the donated real estate, then use information about the inventory value of real estate obtained from the technical inventory authorities. Link to the Review from the official website of the Supreme Court of the Russian Federation (read paragraph 6 carefully) - https://www.supcourt.ru/Show_pdf.php?Id=10390.

Problems with this type of deal

There are no legal problems when making such a transaction, despite the fact that a deed of gift for an apartment is being issued to a non-relative.

A capable citizen can dispose of an apartment at his own discretion and donate his apartment even to a non-relative, unless the law establishes restrictions on this case.

In this case there are none.

Actual problems may arise with relatives, who will naturally be against gratuitous contracts with an outsider and the removal of property from the family.

They may try to challenge the transaction and recognize the donor as incompetent at the time of its completion.

It is worth preparing for this: before concluding the contract, obtain a certificate from the PND (psycho-neurological dispensary at your place of residence).

Gift tax

Tax on the gift of a car is also paid because the car is considered property, which is subject to income tax. The payment amount is calculated from the market value of the vehicle, from which 13% is taken. To ensure proper compliance with the law, the recipient submits a 3-NDFL certificate to the Tax Service by the end of April of the following year, and makes the payment by mid-July. If the recipient received a car as a result of a lottery or drawing, he still makes this payment.

State registration of transfer of rights

the following documents are submitted to the authorized body (Rosreestr) in accordance with Federal Law 122

Documents of the parties to the transaction.
Application for registration action.
Agreement in three copies. One each for the parties and for the authorized body.
If a representative is involved, his power of attorney certified by a notary.
Title and title documents of the donor.
Extract from the house register.
Documents from the Bureau of Technical Expertise (BTI).
Written and certified consent to the transaction of the second spouse.
Consent of guardians or trustees if the donor is incapacitated or has limited legal capacity. Such persons can make a donation, but additional documents are required to make it.
A document confirming payment of the state fee for completing the registration action.

Documents are submitted to the Rosreestr department (9th article of the 122nd Federal Law) or to the MFC (2nd paragraph of the 2nd part of article 9) in person by the participants, or by mail and using the Internet (16th article) . In these cases, the processing time will be slightly longer.

The registration authority is obliged to take all necessary actions within ten working days (Article 13). During this period, the new owner can receive a certificate of ownership of the donated apartment.

In addition to the 122nd Federal Law, it is also important to take into account the 184th Instruction of the Ministry of Justice of 2002, which specifies the provisions of this law.

How to draw up an apartment donation agreement between strangers: step-by-step instructions

To execute a written transaction you need:

Communicate your intention to make a gift to the recipient. This is important because he has the right to refuse a donation before actually receiving the gift (Article 573 of the Civil Code of the Russian Federation). You need to set a date, place and time for signing the deed of gift.
Draw up an agreement. The parties can do the drafting themselves, or entrust it to a lawyer.
Sign the deed of gift. The DD is drawn up in three copies: one remains with the parties to the transaction, the third is transferred to the registrar for re-registration of ownership of the donee. If citizens turn to a notary, the signing takes place in his presence.
Submit documents to Rosreestr or MFC to register ownership of the donee. Both parties must appear. If the donor is unable to come, he can issue a power of attorney for a representative. The donee does not have the right to represent the interests of the donor before the registrar.
Receive an extract from the Unified State Register of Real Estate. The new owner of the property comes to the MFC or Rosreestr (depending on where the documents were submitted) for it 10 calendar days after the application.

It should be taken into account that the donor will be purged by the owner before the new owner is registered. Until this moment, the donee cannot dispose of the property: donate, sell, exchange, pledge to the bank, etc.

Contents of the gift agreement

It is important to correctly draw up the deed of gift, otherwise the registrar will refuse to accept the documents.

How to properly draw up a deed of gift for a share in a house?

What information must be indicated in the DD for the apartment:

Full name, passport details, dates of birth of the parties;
date of signing the document;
address, area, number of rooms, details of the donor’s certificate of ownership of the housing;
intention to transfer the gift to the other party free of charge;
start date of contract execution: immediately or within a certain period;
liability of the parties in case of violation of the terms of the transaction;
conditions for changing or terminating the contract.

At the end, the parties put their signatures.

Sample agreement for donating an apartment to a stranger:

The sample gift agreement varies depending on the type of property being transferred. A prerequisite is a detailed description of the gift, allowing it to be individualized.

Documentation

To donate real estate, you will need the passports of the parties, as well as other documents:

cadastral passport;
a contract of sale, gift, exchange or other document on the basis of which the donor formalized ownership rights;
extract from the Unified State Register of Real Estate;
technical passport if the housing is privatized but not registered in the cadastral register.

Note! To register property rights, a similar list is provided, but you will additionally need a copy of the gift agreement.

When donating a car you will need:

document of title (donation agreement, purchase and sale agreement, certificate of inheritance rights);
STS;
PTS.

State duty

State duty is paid in the following cases:

For notary services. The cost is determined individually, depending on the specific notary office and the type of property.
For registering a car. 650 rub. - upon re-registration and 2000 rub. - when changing license plates.

Responsibility for paying tax

In this case, the donee receives the income, and he is also obliged, according to the Tax Code, to pay personal income tax - a tax on the income of an individual.

Since he is not a close relative or family member of the donor, the exceptions of paragraph 18.1 of Article 217 of the Tax Code do not apply to him.

He will have to pay a tax of 13% (Article 224 of the Tax Code) if he is a tax resident and 30% if he is not.

The concept of “resident” is disclosed in Article 207 of the Tax Code - this is a person who is on the territory of the Russian Federation for 183 consecutive days in 12 months.

It is necessary to distinguish transaction costs from taxes, which the parties may well share.
For example, by paying jointly for the notarization of the contract. A gift agreement to a non-family member or a close relative requires more attention and especially careful execution. In this case, it should be drawn up in as much detail as possible, it is necessary to collect certificates confirming the donor’s legal capacity, and it is also reasonable to allow notarization of the transaction.

Giving to a stranger

As you know, income received in cash and in kind as a gift is exempt from income tax . An exception to this rule is when receiving real estate, vehicles, stocks, shares and shares as a gift. When strangers receive such gifts, they become obligated to pay 13% personal income tax if the recipient is a tax resident of the Russian Federation, and 30% personal income tax if the recipient is not (Article 224 of the Tax Code).

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