Housing-legal

Author of the article: Anastasia Ivanova Last modified: January 2021 12067

When it becomes necessary to make a choice - to draw up a deed of gift or a will, you need to take into account all the nuances of both procedures. You should also take into account the timing of when the deed of gift for an apartment comes into force, and when you can inherit it.

A deed of gift is a gift agreement, a document confirming the donor’s desire to freely transfer ownership rights to his property to the heir.

How to issue a deed of gift for a child or incapacitated person?

First, a gift agreement is signed by both parties.
Then it is registered with the Federal Registration Service.
You can have the document certified by a notary; this, of course, is not necessary, but it is advisable. This is a useful service; if documents are lost, you can always count on a copy.

Provide the necessary documents:

consent of all family members, and necessarily notarized, if, of course, this property is jointly acquired;
a document proving your ownership of it;
certificate about the number of registered people in the apartment;
appraisal paper from the BTI;
for a minor, as well as an incapacitated citizen, the written consent of a guardian will be required;
if the apartment has several owners, their consent will also be required;
passports of 2 parties;
a gift agreement, which must be signed by both parties;
cadastral passport received from the BTI;
the authorized representative will need a completed agreement in accordance with all the rules;

The Federal Reserve System often requires additional documents; these will also need to be provided in full. You will also need to pay a fixed state fee. duty. The size and details will be communicated and issued immediately on the spot.

The registrar will take all the documents you have prepared, of course, except for passports. In return, you will be given a receipt in the prescribed form. They will definitely set a time when you need to come up with a completed contract.

Registration process

Includes 2 design options, optional:

independent;
through a notary.

In option 1, you will have to fill out the document yourself with the following information:

information about the subject of the donation;
data of 2 parties;
name of the required object;
document on legal ownership;
signatures;
exact parameters and data of the object.

Documents are prepared at the Registration Chamber. When the registrar receives them, you will need to draw up a statement signed on both sides.

Then the registrar will take all the documents and issue in return (within 10 calendar days):

copies of the finished contract;
certificate of your right to property.

If you want to save your time and use (prudently) the services of a notary, then just prepare the necessary documents for him and pay him, although the services are not cheap. He will quickly and sensibly draw up an agreement, and you just sign it. And after some time, the recipient will receive a completed certificate.

According to our legislation, the registration procedure is required to be carried out by the Federal Registration Service.

To carry out this procedure we will need:

a document with the true assessed value of the property;
a certificate indicating the number of registered people in the apartment;
2 passports: donee, donor;
cadastral passport (take from BTI);
documents about your existing property rights;
technical passport of housing;
agreement on drawing up a deed of gift;
gift agreement;
extract from the house register, etc.

This is the main package of documents, but it may change and be added a little. Much depends on the design conditions. When the deed of gift is ready, you immediately need to re-register the apartment in your name. It is better to clarify the list of documents in the Registration Chamber (reference window) or the MFC.

We suggest you read: Registration of guardianship of a child, what is required for this, a list of documents and the procedure

It looks like this:

Subject of the agreement - the name is indicated (for example, a three-room apartment). The technical data of the object is also entered here.
Parties to the agreement enter the details of both passports and place of registration. If the donee is a minor, instead of passport data, entries from the birth certificate are made.
No encumbrances - your apartment must be free from unfounded and justified property claims of other persons; written evidence of this is needed.
Registration - when there are registered people in the apartment, it is necessary to indicate the deadline for their eviction and check-out.
Title document - you need to start with the words “This living space now belongs to (full name) based on the data...”

Below are the exact details of the documents:

original certificate of inheritance;
agreement for joint participation in shared construction;
a document indicating the right to your property.

Responsibility and rights of both parties - write the phrase: “Rights and responsibilities are not at all provided for in this agreement, but are established in accordance with the current legislation of the Russian Federation.”

But often this paragraph also includes:

Design features

You can draw up a gift agreement either yourself in ordinary written form or with a notary at the donor’s place of residence.

If the donor and the donee live in different regions, the agreement is drawn up in the notary office of the region where the gift is located (if we are talking about a house, apartment, land plot, etc.).

Handwritten deed of gift

If you decide to complete the transaction yourself or do not have the opportunity to contact a notary, remember the main conditions for the validity of the deed of gift. The agreement must contain:

information about the donor and recipient: their full name, passport details, residential addresses;
a clear description of the gift: if we are talking about real estate, then it is necessary to indicate the address of its location, characteristics, passport number, and other identification information;
date of conclusion of the contract, signatures of both parties.

Next, the paper must be notarized, and then you must submit an application for state registration. After registration, the transaction is considered completed: the gift passes into the possession of the donee with all legal and financial obligations.

The correct solution would be to draw up an agreement at a notary's office. The lawyer will explain all the nuances of the transaction and help you write the text to avoid inaccuracies in interpretation. For this you will need the following documents:

Passports of both parties;
Documents for land/house/apartment;
Certificate of ownership;
Cadastral passport of the object;
Extract on the absence of arrests, debts (from the Unified State Register);
If the donor is married, the written consent of the spouse is required for the donation of jointly acquired property.

The conclusion of an agreement is possible only in the presence of both parties: they must put their own signatures. Otherwise, the deed of gift is considered void.

After notarization of the deed of gift, it is subject to state registration, and is ultimately considered completed.

Is it possible to limit the validity period of a deed of gift?

A donation is a gratuitous transaction, as a result of which the rights to real estate or another object are transferred from one owner to another. There are two parties involved in the transaction:

donor – owner of property;
donee – the one who receives the gift.

The rules for drawing up and the relationship between the donor and the donee are regulated by the Civil Code of the Russian Federation. The agreement is drawn up in writing and, if necessary, certified by a notary. The mere presence of a deed of gift does not make the donee the owner of an apartment and other objects; the ownership transferred to him under the agreement must be registered with Rosreestr.

How long is the validity period of the deed of gift? If the new owner has taken ownership, the agreement has an unlimited duration. Unlike a lease, property is not given for temporary use; the object can only be taken back by a court decision if the new owner forced the previous owner to sign a deed of gift, threatening his life and health.

However, it is possible to delay the transfer of the gift. To do this, a promise of gift agreement is drawn up, which indicates a specific date upon which the property will be transferred to the new owner, or the following conditions:

suspensive - the gift is transferred only when a certain condition occurs;
cancelable - the gift is transferred unless an event occurs that cancels the transaction.

Conditions suspensive and dispensable must be probable. In other words, it may come, or it may not. For example, an apartment is given to newlyweds when they have a child, or given to a student if he graduates from university without C grades. In this case, the birth of a child will be a suspensive condition, and a C in the diploma will be a dispensable one.

Sometimes the promise of a gift agreement does not indicate specific terms. In this case, the donee has the right to demand the transfer of property at any time, and the donor is obliged to fulfill the requirement within seven days.

What you need to know about deed of gift

A gift agreement between relatives excludes the collection of 13% tax. However, processing the document involves certain costs. For example, re-registration of ownership costs 2,000 rubles in 2019. In addition, if the deed of gift is issued to a stranger, tax will have to be paid.

the papers include property belonging to a minor or incompetent owner;
the recipients are employees of medical or educational institutions where the donor’s relatives study/are receiving treatment;
the role of the recipient is an official of local or federal significance;
property is transferred as a gift without the consent of other owners.

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In what cases does the deed of gift cease to be valid?

There are several cases when a gift agreement is canceled and is no longer valid. In some situations, court intervention is required, for example:

recognition of a document as invalid due to legal errors, for example, failure to respect the rights of third parties or minors;
commission of a crime by the donee against the donor or his relatives, as well as his use of threats and blackmail to complete the transaction;
careless handling of property that is of great value to the previous owner;
recognition of the transaction as void due to its registration after the death of the donor.

In the case of a contract of promise of gift, the owner of the property can abandon his intentions. Life circumstances change, and giving an apartment as a gift can cause significant harm to the owner’s well-being. In this case, he has the right to write a refusal of the transaction.

Until March 1, 2013, the apartment donation agreement was subject to state registration. A deed of gift drawn up after this date is not registered. The right of ownership of property received as a gift is subject to state registration in Rosreestr.

We invite you to read: Tax deduction for a child when buying an apartment in 2021

When does the deed of gift come into force?

Also, dashes are placed in all strength columns so that the apartment sold to you is actually included in the list of apartments being transferred, in accordance with the Rules for determining the severity of damage. DO NOT FORGET when entering into a statement the fact that all other individuals and groups in society, with the exception of individual criminals, act as homeowners.

Valery Evgenievich began the conversation with the advantages of a gift agreement, which he considers the best. Will only take effect after your death. Based on clause 3 of Art. 574 of the Civil Code of the Russian Federation, a contract of donation of real estate is subject to state registration and comes into force (Article 425 of the Civil Code of the Russian Federation) and. Jan 20, 2013. A deed of gift is an agreement under which one person. many changes to the gift agreement, the Law comes into force.

We recommend reading: Is it necessary to privatize a summer cottage?

Who cannot be the recipient?

Article 575 of the Civil Code of the Russian Federation imposes a number of prohibitions on such a transaction. The recipient cannot be:

people working: hospitals, schools, nursing homes, etc.;
when the donor is a pupil of a children's or medical institution;
persons under 14 years of age and their representatives;
incapacitated citizens and their legal representatives;
some categories of employees holding high state and even municipal positions, Bank employees;
commercial organizations.

Features of donating a share in an apartment

Starting from 2021, in June, the conditions for donating a share have completely changed. There are situations when registration is possible only with a notary.

But sometimes it is possible to act independently when:

The apartment has several owners;
The common share is the property of one spouse or both spouses - which means they acquired it during marriage.
A certain share is given to only one of the spouses - this is when they jointly buy an apartment and register it as joint ownership. Then, instead of donating, it is best to draw up an agreement, or even a marriage contract. One of the spouses must give the other half his share with the right of complete disposal.

Donating a share, of course, can be done independently in the following cases:

the apartment has one owner;
property acquired during marriage.

Services that will help solve similar issues

In accordance with Articles 207 and 209 of the Tax Code of the Russian Federation, personal income tax payers are individuals who are tax residents of the Russian Federation and who receive income from sources in the Russian Federation, as well as from sources outside the Russian Federation.

The list of income received from sources in the Russian Federation and subject to taxation is determined by Article 208 of the Tax Code of the Russian Federation. In subparagraph 10 of paragraph 1 of Article 208 and Article 209 of the Tax Code of the Russian Federation, income of individuals received as a gift from individuals is subject to personal income tax taxation.

When taxing income received by an individual who is a tax resident of the Russian Federation as a gift from an individual, a tax rate of 13% is applied, provided for in paragraph 1 of Article 224 of the Tax Code of the Russian Federation.

In accordance with paragraph 18.1 of Article 217 of the Tax Code, income of individuals in cash and in kind received from individuals as a gift is exempt from personal income tax, with the exception of cases of donation of real estate, vehicles, shares, shares, shares...

If the donor and the donee are family members and (or) close relatives in accordance with the Family Code of the Russian Federation (spouses, parents and children, including adoptive parents and adopted children, grandparents and grandchildren, full and half (having a common father or mother) brothers and sisters), then any income, both in cash and in kind, received as a gift, is exempt from personal income tax.

Income received by an individual as a gift of real estate from another citizen is subject to personal income tax.

Tax legislation does not provide for the taxpayer’s obligation to submit any additional documents to exempt the above income from taxation.

However, if the tax authority has information about the fact that an individual has received income in the form of a gift and there is no information that the donor and donee are family members and (or) close relatives, then when carrying out tax control measures in accordance with subparagraph 4 of paragraph 1 of the article 31 of the Tax Code of the Russian Federation, tax authorities have the right to summon the taxpayer on the basis of a written notification to give explanations in connection with his compliance with the legislation on taxes and fees.
With documentary confirmation of the fact of relationship (presentation of a copy of the birth certificate), this income is exempt from personal income tax in accordance with paragraph 18.1 of Article 217 of the Tax Code of the Russian Federation. TOTAL: you can donate a purchased apartment at any time. The minimum period for owning an apartment is established by Art. 217.1 Tax Code for cases of its SALE. Therefore, there are no minimum tax-exempt deadlines for donations. The only factor exempting from taxation when making a gift is the degree of relationship, that is, recognition of the parties in accordance with the Family Code of the Russian Federation as family members or close relatives. Thus, a decision on donating an apartment in order to minimize and optimize taxation should be made not based on the number of years the purchased apartment has been owned, but on determining the degree of relationship.