Is it possible to sell a room through donation?
A sale is a transaction under which the seller transfers property to the buyer for money. The specifics of the transaction are regulated by Ch. 30 Civil Code of the Russian Federation. Donation involves the gratuitous transfer of property, where the donor is involved instead of the seller, and the donee is involved instead of the buyer.
By nature and characteristics, these are completely different transactions, and real estate cannot be sold through a gift. Some prefer to draw up a gift agreement (hereinafter referred to as DD) instead of a purchase and sale agreement in order to avoid paying tax (sellers pay 13% personal income tax) but actually receive money. Such transactions are considered feigned, and the consequences of invalidity are applied to them (Article 170 of the Civil Code of the Russian Federation).
Legal advice: it is better to immediately draw up a real contract when selling, otherwise there is a risk of running into an unscrupulous buyer. Having drawn up a deed of gift, you may not receive money for the property in return, because such an agreement implies gratuitousness. You will have to defend your interests in court.
Elena Plokhuta
Lawyer, website author (Civil law, 7 years of experience)
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Concept and features
A deed of gift for a room in a communal apartment is an agreement, and of a unilateral nature. Under such an agreement, one party transfers the space in the communal apartment to the other party without any payment. Moreover, the one who donates the property should not have any selfish interest in such a transaction. The recipient, when donating a room in a communal apartment, can be any citizen and even an organization.
In order for a person to acquire the right to the transferred part of the housing, it is necessary to register it, as well as conclude a transfer deed, which confirms the fact of transfer of the room from one entity to another.
The law provides for the recipient to be able to refuse a gift that is offered to him. The only caveat is that the donor may incur some expenses regarding the presentation of the property, for example, paying for the preparation of the gift agreement. Then it is permissible to demand compensation, including if the agreement is aimed at close relatives. Such restrictions make it possible to maximally compensate for the costs that fall on the shoulders of donors, especially considering that the property is transferred without payment.
The donor also cannot refuse his obligations if the agreement has been drawn up and all documents have been drawn up, but the right has not been registered. You can't just end a relationship like this.
This is allowed only if there are grounds provided for by law:
- if the person who was supposed to receive the room made an attempt on the life or health of the donor;
- if the recipient of the property by any action causes damage to the property or destroys it;
- if the person who acts as the recipient makes a transaction to sell the room within three years from the date of the donation transaction.
In other cases, the agreement in question cannot be canceled, that is, when the donor expresses the will to transfer property without payment, then only the recipient can interrupt the transaction if he refuses to receive the property in a timely manner. But even such cases have their limitations.
The law provides that the form of the contract, which is the main criterion in determining its validity, is defined as written, that is, a document confirming the fact of the transaction is required. This rule is important because it is the agreement that will serve as the basis for registering the right as a result of the transaction.
The donor has the right to independently draw up a document in writing and present it as a basis in person, and there is also the opportunity to carry out this procedure with the help of a notary.
A deed of gift, as a type of agreement between persons, has its disadvantages, which is important when choosing such a formalization of the acquisition of property.
The advantages of a gift agreement are as follows:
We recommend that you read:
How to draw up a deed of gift for a house with a plot of land
- the possibility of a simplified procedure, namely, when concluding a transaction with relatives, there is a chance to avoid some procedural aspects;
- it is allowed to transfer shares, and not just a full-fledged object, which makes it possible to subsequently sell the entire property;
- the ability to avoid paying taxes;
- the gift transaction is subject to challenge, but only within the limitation period.
These aspects are not typical for every type of civil contract, therefore donation is recognized as the most convenient and simplest option.
Room donation agreement form
A room in a dormitory, communal or ordinary apartment is considered real estate, and a written form for a deed of gift is required (Article 574 of the Civil Code of the Russian Federation).
The owner has the right to conclude any type of agreement:
- Real, according to which the donee will be able to re-register ownership immediately after signing;
- Consensual, containing a promise of gift in the future. The donee receives rights to real estate from a certain date or event: wedding, receiving a diploma from a university, etc.
If desired, the donor and the donee can agree on the transfer of real estate as a gift while preserving the former’s right of residence. This condition must be indicated in the deed of gift: after registering the new owner with Rosreestr, the old one will not be able to use the property.
Other Features
The donation of real estate has several features that are important to consider when finalizing the transaction:
- If the room was purchased by the donor during marriage using money shared with the spouse, the latter’s notarial consent will be required;
- To donate property to a child from 14 to 18 years old, permission from the guardianship authorities is required, which with a high degree of probability will not be issued, because when donating, we are talking about the gratuitous seizure of property;
- It is prohibited to give valuables to children under 14 years of age;
- Legal entities have the right to donate rooms to their employees and other individuals. If this is provided for in the company's charter, the consent of the remaining owners will be required;
- The room is donated after allocating a share of ownership in kind. If it is in common ownership without defining a specific territory belonging to the donor, the transaction is impossible;
- If the room is privatized, the transaction will require the consent of the remaining owners. Citizens who voluntarily refused privatization do not express their consent.
Important! A share in kind is allocated provided that it is technically possible to provide a citizen with access to the remaining premises, as well as to equip a separate entrance.
Is it possible to donate a share of a room and how to draw up an agreement?
How to correctly draw up a deed of donation of non-residential premises?
Features of donating a room
You can donate a room if it is the donor’s private property, and other persons do not have the right to claim it. Before registering a deed of gift, you need to allocate a share in kind by concluding an agreement with other owners or achieving a resolution of the issue through the court.
The specifics of the deal depend on the type of building in which the room is located. Let's look at the subtleties in detail.
In an ordinary apartment
In a regular apartment, you cannot donate just a room, because... You will first have to allocate a share in kind in compliance with technical standards. With a high degree of probability, the deal will not take place: the premises will have to be equipped with a separate entrance, which is very difficult.
An alternative option is to allocate a share in the room in kind if the owners of adjacent apartments want to conclude such a deal. But from a legal and technical point of view this is problematic and unlikely. Instead, it is worth registering a deed of gift, transferring a share in the ownership without actual allocation.
In a communal apartment
A room in a communal apartment is the private property of the citizen, and the remaining premises are in common shared ownership. Such real estate is donated: along with it, the recipient will receive a share in the right of common ownership of the apartment - it is proportional to the size of the room.
Note! There is no need to obtain the consent of the other owners of rooms in the communal apartment. They are given a pre-emptive right only in the event of a sale by one of the owners. Donation is carried out free of charge, and the donor himself chooses who to give the property to.
In dorm
If the donor received ownership of a dorm room through privatization, he can give it to another person. To do this, it is enough that the building is on the balance sheet of municipal authorities and is used for the residence of citizens.
If a dorm room is owned by a municipality or an enterprise (not privatized), it cannot be donated.
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Situation with relatives
It should be taken into account that if real estate is gifted to a close relative, then the recipient will not have to pay income tax.
Very often now the object of donation can be rooms in communal apartments, or in dormitories, due to their low price. The situation is much more complicated with the donation of rooms in multi-storey buildings, because an apartment is an indivisible property, and when donating them, there is a high probability of disputes arising that can be resolved exclusively in court.
If the agreement to donate a room is drawn up independently, you need to pay attention to its content, correctness of execution, and the presence of all the necessary information in it, because both the consequences of this transaction and the registration of the transfer of ownership depend on this.
That is why, in addition to the details of both parties and their rights and obligations, the following points must be indicated in the contract:
- exact address of the property;
- area of the premises, both general and residential;
- type of building and number of floors in it;
- the condition of the apartment as a whole and the room that is to be donated.
Who can I give a room to?
You can give a room to any person: a close relative, spouse, friend, acquaintance, even a stranger. The law does not limit the circle of donees.
The exception is situations where donation is prohibited by Art. 575 Civil Code of the Russian Federation:
- In favor of an employee of an educational, medical or social institution, if the donor is a patient or client;
- An employee of a state or municipal body, a bank employee, if the donation is related to his official duties;
- From one commercial organization to another.
The ban does not apply to gifts worth up to 3,000 rubles. Any room is more expensive, so donating it in the above cases will not work.
Do I need to have a deed of gift for a room certified by a notary?
Notarization of the deed of gift confirms that the parties acted voluntarily and had legal capacity when signing.
A notary's signature is only required in a few situations:
- The donor is a minor;
- A representative acts under a power of attorney on behalf of the donor or recipient;
- A share in the property right is given.
The allocation of a share in kind does not cancel the location of the premises in shared ownership, and the DD will have to be certified by a notary.
Cost of notary services
A state fee is paid in favor of the notary in accordance with Art. 333.24 Tax Code of the Russian Federation. The amount is 0.5% of the contract amount, but not less than 300 and not more than 20,000 rubles.
Example:
The cadastral value of the room is 1 million rubles. The notary is paid:
1,000,000 x 0.5% = 5,000 rubles.
How to give a room to a close relative or stranger: step-by-step instructions
To donate a room in a communal apartment or dormitory in favor of a relative or other person you will need:
- Coordination of the transaction. It is recommended to agree in advance with the donee when and in which notary office the DD will be signed.
- Collection of documents for property.
- Drawing up a deed of gift. This can be done independently or with the help of a lawyer.
- Visit to a notary. The parties sign the DD in his presence. Previously, he explains the rights and obligations, responsibilities, and consequences of the transaction.
- Submission of documents to Rosreestr or MFC. Registration of DD was canceled several years ago, but the transfer of ownership will have to be registered. Documents are submitted by both parties - the donee and the donor. If citizens are unable to attend, attorneys submit notarized powers of attorney on their behalf.
- Obtaining an extract from the Unified State Register of Real Estate. After completing the registration actions, the donee is issued a new extract, where he is indicated as the new owner.
After receiving the documents, an employee of the MFC or Rosreestr will issue a paper receipt, which will indicate the date of receipt of new documents for the room. It takes no more than 10 calendar days to re-register ownership.
Contents of the gift agreement
There are no special requirements for the content of the DD, but it must contain complete information about the transaction, otherwise the registrar will refuse to accept the documents.
What information will you need:
- Full name, passport details of the parties;
- Address of the room, area that is alienated along with the room, inventory assessment;
- Rights and obligations of the parties;
- Methods for changing or terminating a DD;
- State registration procedure;
- The donor’s intention to donate the room to the donee free of charge;
- Other conditions;
- Signatures of the parties.
Sample contract for donating a room in a communal apartment:
Consultation on document preparation
Documentation
When visiting Rosreestr or the MFC, you will need the passports of the parties, the agreement itself, as well as other documents:
- Technical passport if the room is privatized;
- Certificate of ownership of the donor, or an extract from the Unified State Register of Real Estate.
Important! Everything is provided in its original form. If necessary, copies will be made of the documents, and the originals will be returned to the owner.
State duty
The fee for registration actions is paid by the donee - 2,000 rubles. For organizations it is higher – 22,000 rubles.
Drawing up a donation agreement for a share or a room in a communal apartment
As already mentioned, when donating a room located in a communal apartment, a special sample agreement is used, due to the specifics of the object of the donation itself.
The main difference between such a deed of gift is the nature of the information provided about the room:
- Her number;
- Address of the communal apartment in which it is located;
- Common and living area;
- The area of the entire apartment and other rooms;
- The share of the common area (kitchen, bathroom), which is transferred along with this room.
One room, by the way, can be owned by several family members. Therefore, sometimes there is a transfer of ownership rights to a share of a room in a communal apartment, but there is no special agreement for such a transaction.
You can download a sample agreement for donating a room in a communal apartment to a relative (or another person).
Sample contract for donating a room in a communal apartment
Grounds for canceling a room donation agreement
DD of a room in a communal apartment or hostel is canceled on the grounds specified in Art. 578 Civil Code of the Russian Federation:
- The death of the donor through the fault of the donee. The heirs will be able to challenge the DD;
- Causing harm to the life and health of the donor intentionally through the fault of the donee;
- Careless handling of a gift that is of non-property value to the former owner, if there is a risk of irretrievable loss.
Creditors of the donor who was engaged in entrepreneurial activity can cancel the deed of gift if the room was purchased with funds from it, and the agreement was drawn up within six months after the citizen was declared bankrupt.
There are additional grounds: drawing up a DD under the influence of delusion or threats, blackmail, physical or moral violence, in an incapacitated state. Relatives or donors can also demand cancellation if the agreement was drawn up without understanding the specifics of the transaction.
To cancel, you must contact the court at the location of the property.
How to challenge it in court?
The deed of gift for a room can only be challenged through court. Procedure:
- the reasons for challenging are determined;
- it is determined whether the application deadline has been missed;
- collecting a package of documents to prove the legitimacy of the challenge;
- a statement of claim is written to declare the transaction invalid.
List of documents required to challenge the deed of gift for a room:
- applicant's passport;
- statement of claim;
- gift agreement;
- check for payment of state duty (300 rubles - for individuals and 6000 rubles - for legal entities);
- evidence giving the right to cancel the transaction - medical examination, witness statements, cash receipts, etc.
All documents are submitted to the district court. When considering the case, the court will render its verdict. Contact our lawyer for help if you still have unresolved questions. Your situation will be considered individually, and it is free.
During the life of the donor
Is it possible to challenge a deed of gift for a room in a communal apartment during the life of the donor? It is possible if there are good reasons.
Causes:
- incorrect information in the signed agreement;
- non-compliance with the laws prescribed in Chapter 32 of the Civil Code of the Russian Federation;
- the form of the transaction has been violated - it cannot be indicated that the gift will become a gift after the death of the donor - Part 3 572 of the Civil Code of the Russian Federation ;
- there are no required clauses in the agreement;
- the donor is declared bankrupt;
- the agreement was signed under pressure.
All facts are proven in court by presenting evidence. Being in good health, the donor has a better chance of reliably describing the circumstances of signing the deed of gift for a room in a communal apartment and proving the illegality of the concluded transaction. Or, conversely, to refute the testimony of relatives who are dissatisfied with the decision made to gift another person.
After death
You can challenge a deed of gift for a room after the death of the donor within 3 years. The previously listed facts may serve as reasons:
- incorrect drafting of the gift agreement;
- the owner of the property was incapacitated, drunk or under the influence of drugs;
- the consent of one of the spouses was not obtained if the property was acquired during marriage;
- psychological and physical violence;
- state registration was not completed.
Evidence is provided by the medical institution, witness statements, etc. If the court considers the arguments weighty, the deed of gift for the room will be considered invalid.
For other questions, please contact our lawyer. Our specialist will answer all your questions and consider the situation individually.
Arbitrage practice
Cancellation of a deed of gift is problematic, and courts often refuse to satisfy claims. To achieve recognition of a transaction as invalid, you need to provide maximum evidence and be able to justify every phrase in the statement.
There are also examples of positive decisions when people managed to cancel the DD and regain ownership of real estate:
- Decision No. 2-359/2016 2-359/2016(2-4769/2015;)~M-4669/2015 2-4769/2015 M-4669/2015 dated December 2, 2015 in case No. 2-359/2016 ;
- Decision No. 2-189/2019 2-189/2019~M-159/2019 M-159/2019 dated July 5, 2019 in case No. 2-189/2019;
- Decision No. 2-6167/2016 2-913/2017 2-913/2017(2-6167/2016;)~M-5027/2016 M-5027/2016 dated June 5, 2021 in case No. 2-6167/2016 .
Lawyer's answers to frequently asked questions
I would like to donate a room in a dorm. Do neighbors need consent?
No, consent is not required, because it is an independent property.
Do I need to pay taxes if I received a room as a gift?
Yes, personal income tax of 13% is paid on the cadastral value of housing. But if the donee is a close relative of the donor (brother, sister, parent, spouse), you will not have to pay tax.
Do you need the consent of the guardianship authorities to donate the room in which the children are registered?
No, guardianship permission is not required. It must be obtained only when selling or donating real estate if the owner is a minor.
We accidentally made a mistake in the contract, indicating that 2 rooms were being given instead of three. How to fix?
Create a new deed of gift. If the DD is certified by a notary, make corrections and have it certified by him again.
Is it necessary to draw up an acceptance certificate when donating a dorm room?
Not required, but recommended. The act is attached to the agreement.
Significant location differences
Dormitory
The main difficulty in drawing up an agreement to donate a room in a hostel is that basically such a transaction is carried out for the purpose of purchase and sale.
To complete such a transaction, the following documents are required:
- application for state registration from both parties;
- payment of state duty;
- passports of both parties;
- real estate donation agreement;
- proof of ownership;
- documents from the BTI;
- consent of the donor's spouse.
Documents required to register an agreement in Rosreestr:
- certificate of ownership;
- cadastral passport (it is issued by the BTI);
- spouse's consent;
- property valuation certificate;
- certificate of persons who are registered in the territory.
