CONTRACTS OF EXCHANGE, DONATION, RENT OF LAND

Features of donation and annuity agreement

Gifting and renting are completely different transactions. The gift agreement (hereinafter referred to as DD) is regulated by Chapter. 32 of the Civil Code of the Russian Federation, implies the gratuitous transfer of gifts:

• real estate;
• vehicle;
• money;
• shares in the authorized capital of LLC;
• household appliances;
• jewelry;
• debt obligations of the donee to a third party;
• the right to claim a debt by a donor from a third party in favor of the donee.

Gifts can be of any kind, the main thing is the existence of ownership rights and the legal capacity of the donor.

With rent everything is different. The annuity agreement (hereinafter referred to as the RA) is governed by Sec. 33 of the Civil Code of the Russian Federation, involves the transfer of property for compensation. Unlike donation, where the donor and the donee are recognized as parties, DR involves the recipient and the annuity payer (Article 583 of the Civil Code of the Russian Federation). The recipient under the contract undertakes to transfer ownership of the property to the payer, and the payer, in exchange, pays him money or provides maintenance in another form.

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

Barter agreement

This agreement is:

• Consensual. This means that the contract is considered concluded from the moment all essential terms are agreed upon by the parties;
• Compensatory - an agreement under which a party must receive payment or other consideration for the performance of its duties;
• Synallagmatic (mutual) - an agreement in which each party has obligations.

Each of the parties to this agreement is simultaneously a seller in relation to the thing that it undertakes to transfer to the counterparty, and a buyer in relation to the thing that it undertakes to accept in exchange. Therefore, the rules on the purchase and sale agreement are accordingly applied to the barter agreement, unless this contradicts the essence of the barter relationship

The subject of an exchange agreement can be both movable things, including securities, and real estate. Also, the subject of exchange may be some property rights, for example, corporate rights

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Characteristics of the gift agreement

The donation agreement is concluded orally, with the exception of a few cases when writing is required (Article 574 of the Civil Code of the Russian Federation):

• a legal entity donates property worth RUB 3,000 or more;
• real estate is given as a gift: house, apartment, land, room in a communal apartment;
• the giver promises to give a gift in the future, upon the occurrence of a certain event or date.

For donation, the consent of the recipient is required - he signs the DD. If a contract of promise of gift has been drawn up, he has the right to refuse the transaction at any time before receiving the gift (Article 573 of the Civil Code of the Russian Federation).

Important! Until 2013 it was necessary to register a deed of gift for real estate in Rosreestr, then submit documents to re-register ownership. Since March 20313 this procedure has been canceled, and now the parties only need to contact the registrar once for the donee to become the owner.

Legal advice: even if the law does not provide for a written form of the DD, it is better to draw it up on paper. For example, a paper DD may be needed to register a donated car - without it, the recipient will be refused by the traffic police.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Contents and sample of a gift agreement

There are no requirements for the content of the gift, but in order to avoid disputes, it is better to immediately formalize everything correctly, indicating complete data about the transaction:

• Full name, series and numbers of passports, registration addresses of the parties;
• information about the gift: date of release/delivery of the property, details of title documents;
• date of conclusion;
• grounds for changing or terminating the DD, procedure;
• liability of the parties to the transaction;
• signatures of the parties.

Sample real estate donation agreement:

Consultation on document preparation

Pros and cons of deed of gift

If we consider the advantages and disadvantages of a deed of gift, we can highlight several features:

What is more profitable: an exchange agreement or a gift agreement?

Unilateral gift agreement

What is included in the concept of a gift agreement?

Civil law requires such an agreement to transfer something into ownership to the donee completely free of charge . Such an agreement is based on the provisions of Article 572 of the Civil Code of the Russian Federation.

Conveniently, such documents can be drawn up in simple written form and do not require state registration .

A special feature of such an agreement is its practical irrevocability . In theory, it can be terminated, but only for several reasons:

• in case of an attempt on the life or health of the donor, as well as his close relatives;
• if the donee with the donated item becomes in danger of its irretrievable loss;
• if there is a clause in the contract about the possibility of canceling it;
• in the event of a significant decline in the donor’s standard of living due to circumstances that occurred after the signing of the agreement.

All these points will need to be challenged in court.

Sample donation agreement.

Characteristics of the annuity agreement

Unlike a deed of gift, a DR is drawn up only in writing and must be certified by a notary (Article 584 of the Civil Code of the Russian Federation). Since 2013, it has not been registered, but the transfer of ownership is subject to state registration.

An annuity is characterized by several qualities:

• several types of contracts: permanent, lifelong, lifelong maintenance with dependents;
• property is transferred for a fee or free of charge;
• if a fee is charged, the sales rules apply;
• When transferring free of charge, the rules of donation apply;
• Any real estate is transferred by rent: an enterprise, a building, a structure, a plot of land, a house, an apartment;
• When the payer alienates property received under rent, his obligations pass to the new owner, and subsidiary liability arises.

Important! According to Art. 587 of the Civil Code of the Russian Federation, in order to secure the obligations of the recipient, the rent payer acquires the right to pledge property. If he ceases to fulfill his obligations or the conditions of detention of the recipient worsen due to circumstances beyond the control of the other party, the transaction is terminated. The recipient has the right to demand compensation for losses incurred as a result of termination.

Contents and sample of a life annuity agreement

By law, the DR is drawn up in writing, but there are no requirements for content. But the lack of reliable and complete information in the document may become grounds for refusal of registration, so you need to include all the information in it:

• Full name, passport details, registration addresses of the recipient and payer;
• validity;
• information about the property: cadastral number, details of the extract from the Unified State Register for the recipient, date and basis for the emergence of ownership rights, area, number of rooms, number of floors;
• obligations of the payer and recipient;
• amount, frequency of payments in favor of the recipient;
• rights, responsibilities of the parties;
• grounds for change or termination;
• signatures of participants.

The agreement is drawn up in at least three copies. One each remains with the recipient and the payer, the third is transferred to Rosreestr.

Sample life annuity agreement:

Consultation on document preparation

Advantages and disadvantages of an annuity agreement

Let's look at several positive and negative qualities of AR.

Let's start with the pros:

• the recipient has the right to continue to reside in the real estate involved in the transaction;
• the property is transferred to the payer immediately after certification;
• the transaction is relatively easily terminated if the parties fail to fulfill their obligations.

The disadvantages are high risks for the recipient. Until his death, the property belongs to the payer only nominally, and some people choose to “speed up” this process by criminal means. In addition, a change in the condition of the transferred property is not grounds for termination of the transaction, and the payer will have to continue to fulfill his obligations, even if the property is no longer satisfactory to him.

If the contract provides for liability for late payments, the payer will have to pay fines. The size depends on the key rate of the Central Bank of the Russian Federation, unless other sanctions are specified in the document (Article 588 of the Civil Code of the Russian Federation).

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Mena. Giving. Rent

15.1. Barter agreement

Under an exchange agreement, each party undertakes to transfer one product into the ownership of the other party in exchange for another. The rules on purchase and sale are applied to the exchange agreement accordingly, if this does not contradict the rules provided for the conclusion of the exchange agreement and the essence of the exchange. In this case, each party is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.

Unless otherwise follows from the exchange agreement, the goods to be exchanged are assumed to be of equal value, and the costs of their transfer and acceptance are borne in each case by the party that bears the corresponding obligations. If, in accordance with the barter agreement, the goods being exchanged are recognized as unequal, the party obligated to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices immediately before or after fulfilling its obligation to transfer the goods, unless another payment procedure is provided. provided for by the contract.

In the event that, in accordance with the barter agreement, the terms for the transfer of the exchanged goods do not coincide, the rules on counter-fulfillment of obligations are applied to the fulfillment of the obligation to transfer the goods by the party that must transfer the goods after the transfer of the goods by the other party.

Unless otherwise provided by law or the exchange agreement, the ownership of the exchanged goods passes to the parties acting as buyers under the exchange agreement, simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties.

The party from whom the goods acquired under the exchange agreement were seized by a third party on grounds that arose before the execution of the exchange agreement has the right to demand from the other party the return of the goods received by the latter in exchange and (or) compensation for losses. The party that transferred the goods is obliged to compensate the other party for losses incurred unless it proves that the acquirer knew or should have known about the existence of these grounds.

The agreement of the parties to release the party that transferred the goods from liability in the event of a demand for the purchased goods from the other party by third parties or to limit it is invalid.

15.2. Donation agreement

Under a gift agreement, one party ( donor)

) transfers free of charge or undertakes to transfer to another party (
the donee
) a thing in ownership or a property right (
claim
) to himself or to a third party, or releases or undertakes to release her from a property obligation to himself or to a third party.

The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.

Forms of gift agreement. 1. A donation accompanied by the transfer of a gift to the donee may be made orally, with the exception of a number of cases. The transfer of a gift is carried out through its delivery, symbolic transfer (handing over keys, etc.) or delivery of title documents. 2. An agreement on the donation of movable property must be made in writing in cases where: a) the donor is a legal entity and the value of the gift exceeds five minimum wages established by law; b) the contract contains a promise of a gift in the future. 3. The contract of donation of real estate is subject to state registration.

Prohibition of donation. Donations are not allowed, with the exception of ordinary gifts, the value of which does not exceed five minimum wages established by law: 1) on behalf of minors and citizens recognized as incompetent by their legal representatives; 2) employees of medical, educational institutions, social protection institutions and other similar institutions, citizens receiving treatment, maintenance or education there, spouses and relatives of these citizens; 3) civil servants and employees of municipal bodies in connection with their official position or in connection with the performance of their official duties; 4) in relations between commercial organizations.

A donation is the donation of a thing or right for generally beneficial purposes.

15.3. Annuity and life support with dependents

Under the annuity agreement, one party ( the annuity recipient

) transfers property to the other party (
the rent payer
), and the rent payer undertakes, in exchange for the received property, to periodically pay rent to the recipient in the form of a certain amount of money or to provide funds for its maintenance in another form.

A rent agreement is subject to notarization, and an agreement providing for the alienation of real estate for the payment of rent is also subject to state registration.

Property that is alienated for the payment of rent may be transferred by the recipient of the rent into the ownership of the rent payer for a fee or free of charge. When transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property.

An essential condition of an agreement providing for the transfer of a sum of money or other movable property for the payment of rent is a condition establishing the obligation of the rent payer to provide security for the fulfillment of his obligations or to insure in favor of the annuity recipient the risk of liability for non-fulfillment or improper fulfillment of these obligations.

Types of rental contracts:

1) permanent annuity:

Recipients of permanent annuity can only be citizens, as well as non-profit organizations, if this does not contradict the law and corresponds to the goals of their activities. Permanent annuity is paid in money in the amount established by the contract;

2) life annuity:

a life annuity can be established for the period of life of the citizen transferring property for payment of annuity, or for the period of life of another citizen specified by him;

3) lifelong maintenance with dependents:

the citizen, the recipient of the rent, transfers the residential house, apartment, land plot or other real estate belonging to him into the ownership of the rent payer, who undertakes to provide lifelong maintenance with the dependent of the citizen and (or) the third party (persons) indicated by him.

The rules on life annuity apply to a lifelong maintenance agreement with a dependent, unless otherwise provided by the rules of this paragraph.

Comparison and differences between annuity and gift agreements

There are several differences between DR and DD:

Agreement of gift and exchange: comparison

Let's look at the characteristics of DM and DD in comparison:

Do I need to have a gift or rent agreement certified by a notary?

The annuity agreement must be certified by a notary, and for donation, certification is required only in certain cases:

• the share in the property right is alienated;
• a representative participates in the transaction by proxy;
• the property of a minor is donated;
• A guardian acts on behalf of the donor.

Note! The law does not allow donations on behalf of a child under 14 years of age or an incapacitated citizen. No notary will certify such a transaction.

Legal advice: a notary’s signature does not guarantee the impossibility of challenging, but significantly reduces it. If identification is not required by law, it is still better to contact a notary office to protect yourself.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Grounds for challenging a gift or rent agreement

You can challenge a deed of gift or DR on the grounds specified in Art. 166-179 Civil Code of the Russian Federation:

• signing by a person with limited legal capacity or an incapacitated citizen;
• the transaction is not certified by a notary, if his signature is required by law;
• During registration, significant violations were committed that are contrary to the law;
• the transaction was made by the donor or recipient of the annuity under the influence of physical or psychological pressure;
• for the alienation of property shared by spouses, the consent of the recipient’s spouse or the donor was not obtained;
• when signing, the citizen was not aware of the consequences of the transaction and did not understand its nature;
• the contract was concluded without further legal consequences (imaginary transaction);
• registration for the purpose of covering up donation, rent, purchase and sale, barter (feigned transaction).

Challenging is possible through court. The statement of claim is filed at the location of the property in dispute. If the claim involves non-property issues, you should go to the court at the defendant’s place of residence.

Exchange or donation of real estate

Most often in civil transactions there are transactions with real estate (i.e. objects that are firmly connected to the land and their movement without prejudice to their purpose is impossible - Article 130 of the Civil Code of the Russian Federation).

Taking this circumstance into account, we provide a general comparative description of contracts of exchange and gift related to the alienation of real estate:

Exchange or donation of residential premises

As a rule, when talking about real estate alienation transactions, interested parties mean a room, apartment, house, i.e. living space. Based on the above analysis of contracts for the exchange and gift of real estate, as well as taking into account the peculiarities of the alienation of residential premises, it is necessary to highlight the following:

• the object of the transaction will be the residential premises , the individual characteristics of which must be reflected in the contract. These include: address, total (and living) area of ​​the premises, floor, number of rooms, cadastral or conditional number);
• it is necessary to reflect the mandatory conditions (information about the title document for the residential premises - a certificate of state registration of ownership; an indication of the procedure for state registration of the transfer of ownership; a list of persons who retain the right to use the residential premises, an indication of existing restrictions and encumbrances);
• indication of the cost of residential premises;
• when carrying out the state registration procedure, a package of documents is submitted to the registering authority, which must contain the notarized consent of the spouse (if the donor is married and the property was acquired during his marriage), in some cases - the consent of the guardianship and trusteeship authorities;

Attention

The state duty is 2000 rubles - pp. 22 clause 1 art. 333.33 of the Tax Code of the Russian Federation (if we are talking about an exchange agreement - for each residential premises).

The main differences between deed of gift and exchange are:

1. A characteristic feature of donation is its gratuitous nature.
2. The contract for the exchange of residential premises must always indicate 2 real estate objects , and also that the areas may be unequal.
3. When changing, it is necessary to establish the amount of additional payment for residential premises if the transferred property is not of equal value, i.e. the price requirement is an essential condition (Article 555 of the Civil Code of the Russian Federation).
4. The transfer of residential premises under an exchange agreement is always carried out only by means of a transfer deed .
5. The exchange of residential premises can also be carried out in cases where the parties are not the owners of these premises. We are talking about municipal housing stock, and people live in apartments under a social tenancy agreement. In this case, it is necessary to obtain permission from local authorities. At the same time, the exchange of a municipal apartment for an apartment owned by the owner, and vice versa, is impossible. When donating - only when the residential premises are owned by the donor.

An important issue when considering this topic is taxation.

It should be noted here that when donating an apartment, only the recipient must pay a tax (clause 5 of Article 208 of the Tax Code of the Russian Federation) in the amount of 13% of its value (Article 224 of the Tax Code of the Russian Federation). Moreover, in a number of cases, the taxpayer is exempt from paying it - close relatives, directly indicated in paragraphs. 18.1 clause 1 art. 217 Tax Code of the Russian Federation.

Information

When making an exchange, everything is somewhat more complicated, due to the fact that both parties to the transaction are both sellers and buyers, but in any case they are beneficiaries.

Since provisions governing purchase and sale apply to such an agreement, it is necessary to determine the income that each party receives (clause 5 of Article 208 of the Tax Code of the Russian Federation). Difficulties arise because payment for apartments is made not in cash, but in kind .

Clause 1 Art. 210 of the Tax Code of the Russian Federation provides that any income, including that received in kind, is included in the tax base.

Thus, the income of each party is determined based on the cost of each residential premises (if they are equivalent). When a situation arises with additional payment, it is also considered as income.

In this case, the parties have the right to receive a property tax deduction when selling real estate (Article 220 of the Tax Code of the Russian Federation) when he owned the apartment for less than three years. The size of such a deduction when selling an apartment is no more than 1 million rubles.

Another way to reduce the amount of tax can be called “no income.” Those. the costs of purchasing a new apartment do not exceed the income from the sale of the first one.

Example

Ivanov exchanges apartments with Petrov, the cost of each of which is 3 million rubles. Thus, the amount of income is equal to expenses (3000000-3000000=0) and amounts to 0 rubles. No tax is required.

In addition, such taxpayers, being buyers, also retain the right to receive a property tax deduction when purchasing residential premises (Article 220 of the Tax Code of the Russian Federation). In this case, the Tax Code of the Russian Federation does not provide any exceptions for the exchange agreement.

In this case, the exchange agreement with the apartment acceptance certificate is used as documents confirming the expenses.

Also in accordance with paragraphs. 17.1 clause 1 art. 217 of the Tax Code of the Russian Federation, such taxpayers may be exempt from personal income tax when they have owned residential premises for more than three years.

Exchange or donation of land

Another common real estate object in civil transactions is a land plot. The execution of an agreement, both donation and exchange, with this object is carried out according to the general rules previously discussed, taking into account the following features:

1. The object of the agreement is a land plot that has undergone state cadastral registration. Individual characteristics: type of permitted use, intended purpose, category of land, area, location address, cadastral number.
2. the Land Code of the Russian Federation must be applied to such transactions .
3. The contracts must indicate existing encumbrances and restrictions on the land plot, information about the title documents for it.
4. The transfer of ownership under such agreements is also subject to state registration, and the state duty is 350 rubles (clauses 24, 25, clause 1, article 333.33 of the Tax Code of the Russian Federation).

Important

Taxation is carried out in the same way as with the exchange or donation of an apartment. In this case, to determine the tax base, not the market, but the cadastral value of the land plot can be used.

Arbitrage practice

It is very difficult to cancel a DD or DR, but the chances increase if people turn to experienced lawyers for advice and representation in the courts.

Let's look at a few examples of decisions in cases where citizens managed to cancel transactions:

• Decision No. 2-2687/2017 2-49/2018 2-49/2018 (2-2687/2017;) ~ M-28/2017 M-28/2017 dated May 3, 2021 in case No. 2-2687/2017 ;
• Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 ;
• Decision No. 2-6170/2018 2-6170/2018~M-5525/2018 M-5525/2018 dated July 17, 2021 in case No. 2-6170/2018.

The result of the proceedings is the return of the parties to the original position that was before the conclusion of the contracts.

Lawyer's answers to frequently asked questions

Is it possible to recognize a gift agreement as annuity?

Yes, if there are signs of rent, and a sham transaction was initially concluded (Article 170 of the Civil Code of the Russian Federation).

What is better: an agreement of exchange, gift or rent?

These are different agreements in essence and nature. Exchange is more profitable if you need to exchange real estate, especially in different cities. Gifting is beneficial for the donee, rent is beneficial for the recipients. It may turn out to be unprofitable for payers: often during the life of the recipients they have to pay large sums that exceed the cost of the apartments.

What is more difficult to challenge: a rent agreement or a gift agreement?

Depends on the situation. But judicial practice shows that the likelihood of achieving cancellation is much greater when challenging a deed of gift.

I want to transfer real estate to my daughter, but in such a way that she will support me. What is better in this case: rent or donation?

Definitely rent. When giving a gift, there is no likelihood that the donee will support the donor - such an obligation is not provided for by law, unlike the DR.

Is it possible to draw up a deed of gift or annuity agreement if it is not possible to come to the notary in person?

Yes, by ordering a notary to come to your home. The service is paid separately.