How to terminate a real estate gift agreement

Is it possible to terminate a gift agreement?

You can terminate the gift agreement (hereinafter referred to as the DD), guided by the provisions of Art. 578 and 450 of the Civil Code of the Russian Federation.

The bases are divided into three types:

general: failure of one of the parties to fulfill obligations, significant violation of the terms of the transaction, etc.;
at the initiative of the donee: voluntary refusal of a gift, causing significant damage to the donee as a result of the transaction, etc.;
at the request of the donor: commission by the donee of a crime against the life and health of the donor or close relatives;
at the initiative of a third party with the participation of the donor in the bankruptcy procedure.

If the parties manage to achieve a peaceful settlement of the issue, it is enough to draw up an additional agreement to the main agreement. If disputes arise, you must go to court.

According to the Civil Code of the Russian Federation, donation is made orally, with the exception of cases when the donor is a legal entity and the value of the gift exceeds 3,000 rubles, or when real estate is transferred as a gift. A written deed of gift will be required here.

Let us consider the conditions and features of termination of oral and written DD in detail.

Termination of an oral gift agreement

During an oral gift, the donor gives the recipient a gift: a car, money, jewelry, valuables. The moment of conclusion of the transaction is the time of transfer.

You can terminate the oral contract immediately after receiving the valuables by refusing them, or returning them after some time. A written refusal by the donee of a gift made orally is not required.

Example:

The man gave the woman a car, information about the new owner was entered into the title independently. The DD was not drawn up in writing. To return the gift, she agreed with the donor and re-registered the car in his name, then he re-registered it.

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

Cancellation of deed of gift at the initiative of the state

You can also terminate a deed of gift for an apartment if it was initiated by the state (representatives of state bodies). In this case, the application will be considered by the court if the prosecutor's office or investigative authorities present irrefutable evidence that the transaction was fictitious and was a cover for fraudulent machinations. For example, the donor knowingly evades paying taxes on the apartment in question or government duties.

We invite you to familiarize yourself with: Deed of gift between close relatives according to the law of the Russian Federation

In addition, it is possible to terminate the signed agreement if the donor is a legal entity that was officially declared bankrupt shortly before the execution of the agreement. This is due to the fact that individual entrepreneurs, by transferring real estate, are trying to evade fulfillment of debt obligations.

It is possible to cancel a donation if representatives of the guardianship authorities for minors have applied to the court with a statement that as a result of the transaction, the financial condition of young or minor children has significantly worsened and poses a threat to the child’s health.

The power to challenge and cancel deeds of gift is granted only to the judiciary.

In accordance with current legislative norms, unilateral refusal to fulfill contractual obligations is not permitted. The termination procedure can be carried out exclusively by agreement of both parties or on the basis of a court decision (subject to conditions stipulated by law).

If we are talking about a gift agreement, the current legislation allows for deviations from the general rules, providing the possibility of unilateral refusal to fulfill the obligations of the agreement.

Judicial practice does not use such a concept as termination of a gift agreement. Instead, the concept of “cancellation of donation” applies. This case considers a situation where the donor can cancel the gift based on certain factors. The contract may also be declared invalid.

Conditions for termination of a written gift agreement

If the DD is drawn up in writing, an additional agreement will have to be drawn up for cancellation.

If one of the parties refuses a peaceful settlement, the other has the right to go to court if there are grounds.

General grounds

The general grounds are provided for by the Civil Code of the Russian Federation. According to Art. 572 of the Civil Code of the Russian Federation, some transactions may be recognized as invalid, imaginary, feigned or void in accordance with Art. 166, art. 167 Civil Code of the Russian Federation:

An imaginary transaction concluded with the aim of creating the appearance of a conclusion, but not entailing legal consequences, or a feigned one concluded to cover up another transaction. Recognized as void (Article 170 of the Civil Code of the Russian Federation).
Under a DD, the donor transfers property to the other party after his death. The deed of gift is invalidated; the rules of wills apply here.
Making a donation in an improper form. According to Art. 574 of the Civil Code of the Russian Federation, a gift is transferred orally, with the exception of donations of real estate or the value of a gift from an enterprise exceeding 3,000 rubles. The transaction is declared invalid, because violates the law.

Recognizing a DD as invalid is also relevant for situations where donation is prohibited (Article 575 of the Civil Code of the Russian Federation):

on behalf of incapacitated citizens and persons under 14 years of age;
donation to employees of educational, social and medical institutions on behalf of citizens who are there for treatment or maintenance;
between enterprises conducting commercial activities;
if the donee is an employee of a state, municipal institution or bank, and the donation is related to his official powers.

In the above situations, the legal representatives of the child or third parties who discover the violation have the right to demand cancellation of the DD. You can achieve what you want only through the courts.

At the initiative of the donor

The donor has the right to initiate termination of the DD if one of several grounds exists:

Refusal to fulfill the contract of promise of donation in the future. If after signing the DD your property, financial or health situation has worsened; The marital status has changed, and the transaction entails a significant decrease in the donor’s standard of living; he has the right to refuse to fulfill it (Article 577 of the Civil Code of the Russian Federation).
The donation was made on behalf of a citizen who does not have the right to do so: an incapacitated, young child. Also the basis is the lack of ownership rights of the donor to the gift.
Commitment by the donee of a crime against the life and health of the donor or his close relatives.
Signing of a deed of gift by the donor under the influence of psychological or physical violence on the part of the donee or a third party.
Poor attitude of the recipient towards the gift, if this entails the risk of its loss, while the gift represents a personal non-property interest for the donor.
The death of the donee before the donor, if this is provided for by the terms of the DD.

Another reason for canceling a transaction is the destruction of the gift, forced seizure by order of the authorities, or the use of restrictive measures in the form of a ban on registration actions.

Example:

The citizen drew up a written agreement promising to donate a car. The vehicle must become the property of the donee one month after signing. During this time, bailiffs, as part of the initiated enforcement proceedings for the debts of the donor to the state, impose a ban on registration actions in relation to the vehicle - gift. You can give it as a gift, but the recipient will not be able to register the car. The deal is canceled by mutual agreement.

At the initiative of the donee

Based on Art. 573 of the Civil Code of the Russian Federation, the recipient has the right to refuse the gift before the actual transfer. If the DD is drawn up in writing, the refusal is also drawn up in writing. To cancel an oral transaction, it is enough to return the gift back to the giver.

Important! If the DD is concluded in writing, the donor has the right to demand compensation for damage caused by the refusal. It is compensated by the donee voluntarily or through the court.

Another basis for challenging a deed of gift is the discovery by the recipient of defects in the gift if they caused harm to his life or property (Article 580 of the Civil Code of the Russian Federation). At the same time, it is important that the donor does not notify about them in advance and does not reflect the shortcomings of the donated item in the DD. Along with the termination of the contract, the donee has the right to demand compensation for damage caused.

At the initiative of a third party

The donor's creditors can act as a third party to terminate the DD if he is involved in bankruptcy proceedings and the agreement on the alienation of property was drawn up no more than six months before applying to the arbitration court.

The above measure is due to the fact that many unscrupulous citizens, trying to get rid of debts and retain property, transfer it to relatives via deed of gift, while the deed of gift is recognized as imaginary. In fact, the donors continue to manage the property.

Example:

The man took out several loans totaling RUB 3,000,000. Realizing that he could not cope with the payments, he issued a DD for his son, transferring two apartments to him. In fact, he continued to use them: he lived in one, and rented out the other under a rental agreement. But he did not take into account that the court, at the initiative of the creditor, has the right to cancel all transactions completed over the past six months.

A bank representative, having learned that 2 months before applying to the arbitration court, the debtor issued a deed of gift for his son, demanded that it be cancelled. The application was granted, one apartment was included in the bankruptcy estate to satisfy the demands of creditors - to pay off debts.

Representatives of the guardianship authorities or the prosecutor's office have the right to act as third parties if they learn about the illegal alienation of the property of a young child or an incapacitated person. Such transactions are also cancelled: according to Art. 575 of the Civil Code of the Russian Federation, donations on behalf of children under 14 years of age or incapacitated citizens are prohibited.

Third parties should also be understood as heirs who have the right to demand the cancellation of the DD through the court if the donor died through the fault of the donee, the guilt was proven and the verdict entered into legal force (Clause 1 of Article 578 of the Civil Code of the Russian Federation). To do this, you need to take a certified copy of the verdict and go to court, but the case of canceling the deed of gift will already be considered in civil proceedings. An alternative option is to submit a request to annul the DD when considering a criminal case.

According to Art. 35 of the RF IC, the donor’s spouse also has the right to recognize the DD as invalid if the donated property was in common ownership and was alienated without his consent.

Briefly: the grounds for termination of a DD can be general and special. The deed of gift is canceled at the initiative of the donor, the donee or a third party - a creditor, a representative of the guardianship or prosecutor's office, or the donor's heir. Termination is possible voluntarily or judicially.

Is it possible and how to challenge a gift agreement?

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

In what cases is a deed of gift contested, providing for the return of an apartment?

An apartment donation agreement may be declared invalid even before it is signed in the following cases:

An attempt was made to formalize a donation on behalf of a minor citizen (under 14 years of age) or a person declared legally incompetent.
The apartment is donated to an employee of a medical, social or educational institution on the initiative of grateful clients or their relatives.
The donated apartment is registered in the name of a government official as a reward for exceeding his working powers.
It is possible to terminate the transaction in court if the gift was made in circumvention of the existing Bankruptcy Law (on behalf of a legal entity, no earlier than six months before the signing of the agreement officially declared bankrupt).
The principle of gratuitous gifting is violated (the donor requires the recipient of the gift to perform some service in exchange for receiving real estate).
If the donor, after signing the agreement, suddenly died without having time to register the agreement. Registration authorities cannot take responsibility for processing such a transaction.

If the above grounds for canceling a gift agreement are expressly provided for by current legislation, then the legal norms on the basis of which all transactions, including agreements to donate an apartment, will be invalidated will be given below.

They are characterized by the fact that the parties, or one of the participants in the apartment donation agreement, did not want to perform such actions, or tried to disguise other agreements with the help of them. The law in this case defines such contracts as sham. At the same time, each of them is distinguished into a separate legal fact.

Imaginary transactions. They are characterized by the fact that the parties who signed the gift agreement do not actually receive any rights and obligations. For example, the donor remains to live in the apartment, pays utilities, and uses the apartment at his own discretion.
Gift agreements concluded under moral or physical duress. For example, one of the parties, wanting to receive real estate, uses its moral or physical superiority and forces the other party to sign an unfavorable gift agreement against the will of the apartment owner.
Transactions made fraudulently, or due to the difficult mental or financial situation of the donor.
This should include the deliberate actions of the recipient, who fraudulently forces him to give him an apartment, promising something in return, and after signing the contract does not fulfill his obligations. Or he takes advantage of a situation where a person urgently needs money for treatment, promising to transfer the required amount after registration of the apartment. But, in this case, there is no moral or physical pressure on the donor.
Sham agreements. In this case, the parties actually act as a seller and a buyer, but in order to avoid paying taxes and other obligatory payments, they act as a donor and a recipient.

It is important to understand that the process of terminating a deed of gift on the specified legal grounds presents a certain complexity. It consists in the fact that the plaintiff who applies to the court with such a statement of claim must collect a sufficient amount of evidence that should convince the court of the illegality of the donation transaction.

You can learn more about the conditions for challenging a deed of gift in this article.

One of the main questions regarding the process of canceling a deed of gift is whether it is possible to cancel a deed of gift for an apartment during the life of the donor. From established legal practice it follows that it is during the life of the donor that this is easiest to do.

This is due to the fact that he will be able to give the necessary explanations in court, and also point to irrefutable evidence. In addition, this process can not be brought to court, but can be resolved voluntarily with the gifted person.

Read about how to challenge a deed of gift after the death of the donor in this material.

There are two ways to challenge such a transaction when the donor is alive.

Voluntary order.
It involves sending the parties to the transaction to each other special letters - notifications, which will indicate that the donor, or the one who has become the new owner of the apartment, does not want to fulfill their obligations. But in order to terminate the agreement in this way, the law requires the occurrence of one or more legal facts specified in Article 578 of the Civil Code. But this does not apply to the case where the donor was deprived of the life of those to whom he transferred his property free of charge.
Judicial order.
This process involves drawing up a statement of claim and filing an appeal to the district court on whose territory the disputed property (apartment) is located. In this case, the plaintiff will be the one who donated the apartment, and the defendant will be the one who took it into his ownership. This method of protecting one’s rights applies not only to the cases specified in Article 578 of the Civil Code, but also when the transaction was fraudulent, feigned or violent. Naturally, if the donor is deprived of life, then the legal heirs will file a claim.

More details about canceling a deed of gift during the life of the donor can be found here.

It is important to know that in case of voluntary cancellation of the deed of gift, the mutual refusal of the transaction must be formalized by a notary.

Form of voluntary agreement to terminate a real estate gift agreement.

Form of claim for termination of the apartment donation agreement.

In order to consider this issue, you need to understand that ownership of any real estate does not begin from the moment of concluding an agreement (in our case, donation), but from the time of special registration.

We invite you to read: How to terminate a loan agreement If you become disabled

It means entering information about the ownership of an apartment into a special state register. Only after officials carry out such actions does a new owner appear for the real estate.

Now we will consider the question of the possibility of canceling the deed of gift when the registration of the new owner has occurred. There's nothing wrong with that.

If the transaction was terminated by mutual written consent of the parties, then the agreement is certified by a notary and submitted to the registration service. Its officials check the correctness of such an agreement, the presence of all details, including notarization, after which they make the appropriate changes to the register, and the apartment again belongs to the donor.

If the cancellation of the gift agreement occurred in court, then the original court decision must be brought to the registration service, which has entered into legal force, which must bear a seal, as well as the signature of the judge who made the decision. Officials will immediately re-register the real estate to the new owner.

It is important to know that if officials of the registration service refuse to register real estate according to the above documents, their actions can be appealed to a higher authority or court.

Statute of limitations

Art. 181 of the Civil Code of the Russian Federation establishes limitation periods for challenging different types of transactions:

Void transactions are recognized as invalid within three years from the date of entry into force of the DD. If a claim is brought by a third party, the period begins from the day when he learned about the beginning of the execution of a void transaction.
Contestable transactions are declared invalid within 1 year from the moment when the plaintiff learned about the circumstances - the grounds for challenging, or within 1 year from the moment of the cessation of violent actions, under the influence of which the DD was signed.

Note! If the deadline is missed for valid reasons, it can be restored through the court (Article 205 of the Civil Code of the Russian Federation). Restoring the statute of limitations is possible if the plaintiff is ill, is in a helpless state, is illiterate, is forced to be on a business trip in another city, etc. It is important that these reasons take place within the last six months of the statute of limitations.

Are you tired of reading? We’ll tell you over the phone and answer your questions.

Do I need to contact a notary to terminate the contract?

An additional agreement on the termination of a DD requires notarization if the deed of gift itself was certified by a notary. If his signature is not on the main agreement, it is not necessary to certify the agreement.

The cost of a notarized additional agreement to a contract certified without fail is 200 rubles. (Clause 12, Clause 1, Article 333.24 of the Tax Code of the Russian Federation). If the DD was not required to be certified, but the parties contacted a notary, certifying the agreement will cost 500 rubles. (Article 22.1 “Fundamentals of legislation on notaries”).

Legal advice: if by law it is not necessary to apply for a notarization of an additional agreement on the termination of a DD, it is still better to obtain a notary’s signature. This will avoid possible problems in the future, because... the notary confirms that the parties signed the document voluntarily and were in a capable state.

Elena Plokhuta

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

If the donor goes to court to challenge it, it is not necessary to visit a notary - he is only needed to voluntarily cancel the transaction. However, during legal proceedings, the parties have the right to enter into a settlement agreement at any stage; it is certified by the judge’s signature and seal.

Termination of the contract at the initiative of the donee

The agreement can be terminated at the initiative of the donee if the donee refuses the gift at any time before the transfer of property. In this case, it should be remembered that the donor has the right to demand compensation from the recipient for damage caused by refusal to accept the gift (provision of Part 3 of Article 573 of the Civil Code of the Russian Federation).

The following factors should also be considered:

Refusal to fulfill the contract is possible only before the transfer of the gift. It is impossible to refuse a gift that has already been accepted.
Current legislation does not provide for the possibility of refusing part of the gift. In this case, it is appropriate to use not the concept of “refusal to fulfill the contract”, but the concept of “change in the terms of the document”. However, in accordance with Article 450 of the Civil Code of the Russian Federation, changes to the provisions of the contract are possible only by mutual agreement of the parties.
Refusal to accept a gift is relevant only when concluding a consensual agreement (the document contains a provision on the donor’s obligation to transfer the gift in the future). If a real gift agreement is concluded, the recipient does not have the right to refuse the gift, since the moment of drawing up the document coincides with the moment of its execution.

How to terminate a real estate gift agreement voluntarily: step-by-step instructions

The termination procedure consists of several stages:

One party notifies the other of its intention to cancel the DD. This can be done orally or in writing.
The parties come to an agreement and draw up an additional agreement to the contract.
If the deed of gift is notarized, the additional agreement is signed and certified by a notary. The parties distribute the costs of paying the duty or tariff independently.
If the transfer of ownership of real estate under the DD is registered in Rosreestr, the additional agreement is submitted there.
After re-registration in Rosreestr, the donor again becomes the owner.

Let us consider the features of the peace agreement in detail.

Step 1: execution of an additional agreement

The donor or recipient has the right to initiate termination of the DD if the grounds listed above exist. To do this, it is necessary to agree with the other party, because her consent will be required. Without mutual consent, the deed of gift can only be canceled through the court.

Having reached a consensus, the parties have the right to draw up an additional agreement to the main agreement and sign it immediately, or apply for certification from a notary. In the latter case, the document must be signed at a notary office.

Note! You can order the execution of an additional agreement from a notary, but this is paid separately from the state fee or notary fee. The cost of such a service is set by regional notary chambers.

Sample termination agreement

The additional agreement to the DD must contain complete data about the transaction:

Full name, registration and residence addresses of the parties, passport details;
date, time, place of conclusion of the DD, its number;
information about the subject of the donation: real estate, car, etc.

At the end the signatures of the parties are placed. The notary also signs and puts a stamp.

Sample agreement on termination of a gift agreement: alt: Agreement on termination of a gift agreement (deed of gift)

Consultation on document preparation

Documentation

To fill out the additional agreement you will need:

passports;
main DD;
real estate documents: extract from the Unified State Register of Real Estate, cadastral passport, etc.;
documents for a car or other donated item: STS, PTS, etc.

In general, the list of documents is the same as when drawing up a deed of gift.

Step 2: visit a notary

If the DD is notarized or the parties want to certify the additional agreement separately, you need to come to the notary with it, or order registration there. You must have the above list of documentation with you.

Step 3: registration of termination

If the DD is registered in Rosreestr, termination is also subject to state registration. Documents can be submitted directly to the department or through the MFC. Both parties must appear.

State duty

For registering the transfer of ownership of real estate, a fee of 2,000 rubles is paid.

Termination of the contract at the initiative of the donor

Termination of a gift agreement may occur in the following cases:

The donee intentionally committed unlawful acts against the donor or members of his family (for example, causing grievous bodily harm, attempted murder, and so on).
The contract can be terminated unilaterally if the donee’s handling of the donated item creates a threat of its irretrievable loss. If the donated item is of significant non-property value to the donor, he has the right to cancel the donation through litigation.
The contract stipulates that the donated item returns to the donor if he survives the donee.
If the conclusion of a gift agreement in the future will lead to a significant decrease in the donor’s standard of living (for example, a deterioration in financial, family or health status).

How to terminate a deed of gift through the court?

It is possible to cancel a DD in court if a voluntary settlement of the issue fails, or on the grounds provided for in Art. 578 Civil Code of the Russian Federation.

What should be done:

File a claim.
File the claim and documents supporting the grounds with the district court at the defendant’s place of residence.
Receive a determination on acceptance of materials for production within 5 days after filing the claim.
Arrive at the scheduled time for the preliminary meeting. During the hearing, the judge has the right to ask questions and request additional materials on the case.
Attend one or more hearings in the main trial. At this time, the opinions of the parties are heard and evidence is considered.
Wait for the court decision.
Receive a certified copy of the decision one month after it is made in final form (Article 209 of the Civil Code of the Russian Federation).

If real estate was alienated under the DD, you need to come with a decision to Rosreestr to re-register ownership when satisfying the claims. The defendant's visit is not necessary for this. If the requirements are not satisfied, the decision can be appealed within 1 month, because before entering into force.

Documentation

For legal proceedings, the main and additional lists of documents are provided.

By main we mean:

statement of claim;
plaintiff's passport;
disputed DD;
receipt of payment of state duty.

As additional documents, evidence is provided confirming the commission of illegal actions by the donee, which is the basis for canceling the DD:

medical certificates confirming the beating of the donor;
certificates from the police and a court verdict holding the recipient accountable for assault or other crime against the donor;
expert opinions.

The plaintiff has the right to request that witnesses be called to testify.

Legal advice: it is better to reflect the request in the statement of claim - timely provision of all documents and evidence can reduce the duration of the proceedings.

Elena Plokhuta

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

Sample statement of claim

The statement of claim to declare the DD invalid must contain the following information:

name and address of the court;
information about the plaintiff and defendant;
date, time, number, place of registration of the deed of gift;
address and full name a notary, if the DD is certified;
grounds for declaring the DD invalid;
references to current legislation;
request to cancel the deed of gift based on the evidence presented;
requirement for recognition of the plaintiff's property rights;
plaintiff's signature.

Important! If a legal representative is acting on behalf of the plaintiff, a notarized power of attorney will be required. Its details are indicated in the application.

State duty

When challenging a deed of gift in court, a fee is paid for a claim of a property nature (Article 333.19 of the Tax Code of the Russian Federation).

The size depends on the value of the gift:

up to 20 thousand rubles. – 4%, from 400 rub.
from 20 to 100 thousand rubles. – 3% + 800 rub.;
20-100 thousand rubles. – 2% + 3,200 rub.;
200 thousand - 1 million rubles. – 1% + 5,200 rub.;
from 1 million rub. – 0.5% + 13,200, up to 60,000 rub.

Example of calculating state duty:

The woman filed a lawsuit to challenge the deed of gift for the apartment, the cadastral value is 3,000,000 rubles. How much will the state duty cost:

3,000,000 x 0.5% = 15,000 rubles.

15,000 + 13,200 = 28,200 rub. – total amount.

Important! Based on Art. 98 of the Civil Code of the Russian Federation, the plaintiff has the right to demand reimbursement of legal costs from the defendant when the claim is satisfied. Thanks to this, you can partially or fully return the paid state duty.

Arbitrage practice

If the plaintiffs provide sufficient evidence, the courts satisfy the demands to recognize the DD as invalid and apply the consequences of the invalidity of the transaction - cancellation of the deed of gift and return of ownership.

Several solutions illustrate this:

Decision No. 2-402/2019 2-402/2019~M-331/2019 M-331/2019 dated June 25, 2021 in case No. 2-402/2019;
Decision No. 2-44/2019 2-500/2018 dated June 28, 2021 in case No. 2-44/2019;
Decision No. 2-262/2019 2-262/2019~M-97/2019 M-97/2019 dated June 27, 2019 in case No. 2-262/2019.

Another common ground for applying to court to cancel a DD is the commission of a crime against the health and life of the donor. In such a situation, he himself, his representative, and, in the event of death, his heirs have the right to apply.

Procedure and methods for terminating an apartment donation agreement

An apartment donation agreement is considered one of the most acceptable ways to alienate property to another owner without paying state tax. However, such a transaction can carry many negative consequences, for example, rent arrears. How to terminate the apartment donation agreement and cancel the transaction, we will consider in more detail in the article.