Maria Litinetskaya, managing partner of Metrium Group, member of the CBRE partner network, answers:

Equitable ownership implies that there are multiple property owners with equal rights. It usually occurs when an apartment is inherited or privatized by two or more persons. With shares in the right, you can perform the same actions as with a separate piece of real estate: sell, donate, bequeath, etc. In this case, compensated transactions with shares are carried out only with notification of other owners.

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Donating real estate in 5 questions and answers

The cheapest way is to transfer all shares to one person through a deed of gift. Modern legislation requires mandatory notarization of such an agreement. In this case, the gift of property to a person who is not a relative is subject to personal income tax, but to a family member is not. To carry out the transaction, all co-owners gather at the notary and sign a common document that confirms the transfer of rights to one owner. There is no need to collect any additional papers (for example, consent to the transaction). It is important to note that the cost of notary services is calculated based on the cadastral valuation of real estate. Today this is a very significant amount that can exceed the market price of the apartment. Then the gift agreement is registered in Rosreestr, the amount of the state duty is 2 thousand rubles. The transaction comes into force after its registration.

Re-registration of an apartment to a relative without taxes in 2021

The transfer of real estate into the ownership of another person is often accompanied by the payment of taxes and state duties. But it is not always possible or desirable to incur additional expenses. Is it possible to re-register an apartment to a relative without taxes in 2021?

This is important to know: Objection to a statement of claim for division of jointly acquired property

Elena Mishchenko, head of the city real estate department of the northeastern branch, answers:

This question does not specify to whom the shares need to be transferred: to a third party or to one of the four owners. In addition, there is no information about the relationship of the property owners. Therefore, we will consider both options: transferring all shares to a third party and transferring three shares to the fourth joint shareholder.

You can transfer shares to a third party who is not a relative through the purchase and sale of an apartment. When selling the entire object, documents in the form of consent of the shareholders are not required.

When re-registering three shares for a person who owns real estate in this apartment, you can make one purchase and sale agreement of ¾ shares. In this case, consent is also not required.

If the fourth owner is a close relative, then in this case the issue can be resolved by donating ¾ of the share. In any case, when alienating real estate (no matter how) that is in shared ownership, notarization of the transaction will be required. Therefore, it is more profitable to re-register real estate with one agreement rather than several (that is, for each share separately). Otherwise, you will need to pay the state fee for each contract separately.

5 types of transactions that need to be notarized

Can I issue 2 gift deeds to avoid paying tax?

The simplest ways to re-register property

If the apartment has a low market value (less than 1 million) or has been owned by the owner for at least five years, then its alienation is not subject to tax. In this case, you can safely draw up a purchase and sale agreement, since such a transaction will not be of interest to the tax authorities.

It is important to know: What is common joint property?

However, the most reliable and fastest is still a gift agreement. It can be appealed by relatives whose inheritance rights were affected by the deal, but if all legal procedures are followed, it will be difficult to declare the agreement illegal or void.

The timing of the transfer of rights under donation and sale agreements is the same, since they depend only on the services of a notary and the execution of documents at the state registration authorities. However, a gift deed is not only cheaper, but also safer.

Where to contact?

After going through the procedure of signing contracts with a notary, the parties to the transaction must immediately contact the body that carries out state registration of rights to real estate. These are territorial divisions of the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation.

Documents can be submitted to the MFC, where they will be checked, accepted for consideration, and transferred to the desired organization. At the appointed time, the right to the property will pass to the new owner. A certificate of ownership should be obtained from the authority where the documents were submitted.

If any claims arise regarding the submitted documents, the transfer of rights will be denied. Then you'll have to start all over again.

Terms of transfer of rights to real estate

Since the laws do not have standards defining the difference in the procedures for transferring rights to real estate based on kinship, the re-registration of an apartment into the ownership of a relative occurs on a general basis. Purchase and sale or gift agreements do not include a relationship clause because it has no procedural significance.

The degree of relationship matters only when collecting taxes and inheriting by law. The only circumstance that speeds up the process of transfer of rights is the degree of trust of the parties to the transaction.

Lawyer Inna Belyakova answers:

To correctly answer your question, you need to decide on a key concept - for whom should the costs be the least? If we consider the situation from the point of view of the benefit of the person in whose name the property will be registered, then it is necessary to apply one algorithm of actions. But if we consider the situation from the point of view of the benefit of any of the other three co-owners, then the algorithm will be completely different. First, let's determine the structure of expenses that will need to be made to re-register ownership from common to individual. So, you will need to incur the following mandatory expenses:

1. Notary fees and services . Current legislation for all transactions with shares in the ownership of real estate provides for a mandatory notarial form of the transaction, regardless of the type of agreement (purchase and sale, gift, exchange or something else), so it will not be possible to avoid these costs. As for the notary fee, the state fee for certifying such an agreement will be 0.5% of the amount of the agreement, but not less than 300 rubles and not more than 20 thousand rubles. In addition to the state fee, you will also need to pay the notary for technical work on drawing up contracts, but the notary will determine this amount independently.
2. State fee for registration of transfer of ownership . Currently, the specified fee is 2 thousand rubles for one registration action. Since the transaction you are planning will require three registration actions (state registration of three transfers of ownership), the state fee will be 6 thousand rubles.
3. Personal income tax (NDFL) , which, depending on certain circumstances, will need to be paid by one of the parties to the agreement.

Possible additional, but not mandatory, expenses that may also arise in real estate transactions (renting safe deposit boxes, various powers of attorney, applications, payment for housing and communal services, etc.) are difficult to take into account here, since their need may be caused by the peculiarities of each specific transaction.

Accordingly, of the listed three types of mandatory expenses, the first two are paid by agreement of the parties. That is, as the parties agree, so it will be. But the need to pay personal income tax, amounting to 13% of the income received by the taxpayer, precisely determines the difference in the algorithm of actions that we talked about at the beginning. Let's consider both options.

If we consider the situation from the point of view of the benefit of the person to whom the ownership right is transferred, then it is more profitable for him to enter into a purchase and sale agreement in which he will be the buyer. In this case, personal income tax will be required to be paid by the sellers of shares in the ownership of the apartment (unless, of course, they are exempt from it in accordance with tax legislation). But if we consider the transaction from the point of view of the benefit of the people from whom the ownership right is transferred, then it is more profitable for them to enter into an agreement for the donation of shares in the ownership right. In this case, the donee will be required to pay personal income tax (if, again, he is not exempt from paying tax by law).

When concluding a purchase and sale agreement, the amount of personal income tax payable by sellers will be calculated from the contractual value of the share in ownership of the apartment belonging to each of them, but for tax purposes this value is equal to at least 70% of the cadastral value of this share. But when concluding a gift agreement, the amount of personal income tax payable by the recipient will be calculated directly from the cadastral value of the apartment.

What is more profitable - donation or sale?

Do I have to pay tax on the sale of shares worth less than 1 million?

Who is a close relative

The transaction of purchase and sale of an apartment, gift or will is the subject of the receipt of real estate or its sale, which in both cases is considered income. According to the Tax Code, any type of income is taxed. The income tax rate is 13% and is calculated on the assessed amount of the property. The only exception is property transferred to close relatives. In this case, the transaction is exempt from taxation and income tax does not have to be paid.

Now it remains to identify a group of citizens who are classified as close relatives by law. Since many people confuse this concept and attribute all blood relatives here. So, according to Article 14 of the Family Code, a close relative is:

• children (including adopted children);
• parents (including adoptive parents);
• siblings;
• grandmothers, grandfathers.

According to the Housing Code and the Criminal Procedure Code, spouses are also included in the list of close relatives, however, the Tax Code, when distributing taxes, refers exclusively to the provisions of Article 14 of the RF IC. This means that spouses do not belong to this category.

The above list is complete. Under no circumstances include the following relatives here, otherwise taxation when re-registering an apartment cannot be avoided:

• uncles and aunts;
• nephews and nieces;
• cousins;
• great-grandparents.

Now familiarize yourself with the features of re-registration of an apartment by the above-mentioned relatives (close ones):

1. If a spouse becomes the owner, then, depending on the type of transfer of real estate, the property may be considered joint or personal property, but tax will have to be paid, regardless of the method of transfer of the apartment.
2. Despite the fact that adopted children, parents, brothers/sisters are not of the same blood, they still belong to the category of close relatives, which means they avoid paying tax.
3. Half-siblings (only one parent each) also belong to the preferential group of citizens.
4. Other persons who were listed in Article 14 of the RF IC can transfer ownership of an apartment to their relative without paying tax.

This is important to know: Statement of claim for division of personal accounts: sample

However, it is worth making an amendment right away, even if close relatives are the participants in the transaction, the 13 percent tax charge can be avoided only with a certain method of transferring property - under a gift or inheritance agreement. Drawing up a standard procedure for a purchase and sale agreement will not allow you to evade the state contribution, since the terms of the agreement imply the transfer of money, which means receiving profit, which must be taxed.

Methods for re-registration of real estate

Rules for drawing up a deed of gift

Donation is an expression of the owner’s will to transfer his property, in this case an apartment, to another person free of charge. Although no active action is required from the other party, he must agree to accept the gift and become the new owner of the property.

Therefore, it is mandatory to draw up an agreement with the signatures of both parties.

Download the Deed of Gift for a share in the apartment (38.0 KiB, 507 hits)

Donation agreement. Sample (18.5 KiB, 2,420 hits)

The contract must stipulate:

• Place and date of document preparation.
• Full information about the parties: full name, passport details, registration address. If the parties act through proxies, their details are also recorded.
• Description of the object of donation. There are no uniform requirements for the detail of the description; it is only necessary to indicate the exact address and area of ​​​​the apartment. In addition, you can specify the floor and number of rooms, and clarify the size of the total and living space. The cost is often indicated, especially if the recipient has to pay tax.
• Documents confirming the legality of the donor's rights to the apartment (sale and purchase agreement, deed of gift, will, privatization documents, etc.).
• When the transfer of ownership takes place: will the application for a change of owner be submitted to the registration authorities immediately after signing the contract or after some time. For example, there is a deferred gift for some event: coming of age, wedding, graduation, etc. In the case of a deferred gift, the owner can revoke the deed of gift until registration and retain ownership of the property. However, he must be prepared that the other party can challenge this decision in court and achieve fulfillment of the promise to transfer property. It is impossible to specify the death of the donor as an event for the transfer of ownership. In this case, the agreement is considered void.
• consent of the other party to accept the gift.
• signatures of the parties.

Without these components, the contract will be invalid, and registration of the transfer of ownership will be denied.

In addition, contracts traditionally contain clauses designed to protect the parties from mutual misunderstandings and attempts to challenge the document in the future by the parties themselves or third parties.

• Confirmation of the legal capacity of the parties to the transaction, the voluntary expression of will and their awareness of the essence of the agreement.
• Confirmation of the absence of third party claims to the object of donation (arrest, pledge, other donation, presence of other owners, etc.).
• Which party pays the costs associated with the transaction? By law, the burden of paying the state fee falls on the party receiving the gift. But in addition to this, other expenses may arise, for example, notary fees. These expenses can also be borne by the recipient, or the parties decide to divide the expenses among themselves.
• Number of copies of the agreement and their equivalence. Traditionally, three copies are drawn up - one for each party and a third for the registration authorities. If there are more parties (for example, a mother gives an apartment to two children), then the number of copies increases proportionally.
• The procedure for resolving disputes. It is usually stated here that the basis for resolving disputed issues is an agreement, and in the absence of indications in it about disputed areas, the current legislation.
• Possibility of terminating the transaction. In this case, the failure of the recipient to fulfill any conditions cannot be cited as grounds, since this contradicts the essence of the deed of gift. Usually, the circumstances provided for by law are prescribed: unlawful actions of the donor in relation to the donor or members of his family, a significant deterioration in the donor’s standard of living, or the death of the recipient during the life of the donor.
• If not the entire living space, but a share in it, is donated, the parties can prescribe the procedure for owning common areas, paying for utilities, repairs, etc.

According to current legislation, notarized registration of a gift agreement is not required. Contacting a specialist will increase financial costs, but will eliminate errors when collecting documents and drawing up an agreement and minimize the risk of the transaction being declared invalid.

Another advantage of notarization of a deed of gift is documentary evidence of the transaction: if the contract is lost in the future, the parties can easily obtain an official copy of it. Therefore, the parties make a decision on the advisability of notary services based on their own legal literacy and the complexity of the situation.

If permission from the second spouse or other owners is required to complete a transaction, you cannot do without contacting a notary - he must certify their consent. Also, the services of a notary will be required if the parties resort to the help of a trusted person.

Download your spouse's consent to donate an apartment. Sample (17.1 KiB, 509 hits)