The possibility of challenging a donation is provided for by the legislation of the Russian Federation. Challenging such a transaction is a rather complicated procedure and has its own characteristics. During this process, the following must be taken into account :
- the donation can be challenged by filing a claim with the court;
- a limitation period has been established for challenging; depending on the circumstances, the period of such period ranges from 1 year to 3 years (Article 181 of the Civil Code of the Russian Federation) (Civil Code of the Russian Federation);
- It is necessary to have grounds for challenging, as well as evidence confirming such grounds.
An appeal to the court to challenge the donation is justified only in cases where the norms of the law have actually been significantly violated . Otherwise, litigation only leads to financial costs and loss of time.
Grounds for challenging a gift agreement
The grounds for challenging a donation must be substantial . Not always interested parties who believe that their interests are violated by such a transaction have the rights or grounds to challenge it. A donation can be challenged in cases where:
- the terms or subject of the transaction have been violated (for example, the contract specifies a condition on the transfer of the item as a gift only after the death of the donor - clause 3 of Article 572 of the Civil Code of the Russian Federation);
- the form and procedure for concluding a transaction are not observed (for example, the transfer of real estate is not registered in accordance with the law - clause 3 of Article 574 of the Civil Code of the Russian Federation);
- the donor does not have the right to donate this item (for example, according to the law, donating on behalf of minors is prohibited - clause 1 of Article 575 of the Civil Code of the Russian Federation);
- the donee does not have the right to accept a gift (legislation limits the possibility of accepting gifts by persons who are state and municipal employees, etc. - clause 2 of Article 575 of the Civil Code of the Russian Federation);
- donation is a feigned or imaginary transaction (usually such transactions are concluded in order to cover up another transaction - Article 170 of the Civil Code of the Russian Federation);
- misleading the donor about the substance of the transaction (the donor does not understand what consequences may occur for him);
- the transaction was made by an incapacitated person or a person who was insane at the time of entering into the transaction, etc. (if there is appropriate evidence - Article 171 of the Civil Code of the Russian Federation);
- the transaction was not carried out by a person voluntarily (for example, under threat, coercion or other circumstances);
- after the conclusion of the transaction, the donee made an attempt on the life and health of both the donor himself and the family or relatives of the donor (Article 1, Article 578 of the Civil Code of the Russian Federation);
- in case of bankruptcy or impending bankruptcy of the donor (clause 3 of Article 578 of the Civil Code of the Russian Federation);
- the donee treats the gift unworthily (if the actions of the donee can lead to the loss of the gift or create such a threat - clause 2 of Article 578 of the Civil Code of the Russian Federation);
- the donor survived the donee (and such a condition was indicated in the contract - clause 4 of Article 578 of the Civil Code of the Russian Federation);
- there is no consent of the donor's spouse to carry out the transaction.
If there are grounds, you can try to challenge the donation, but you must provide evidence . But even the presence of grounds and evidence does not always guarantee victory in court.
Cancellation of a gift agreement
Additionally, I would like to prove that the Donor can independently cancel the Donation Agreement. The grounds for this action are listed in Article 578 of the Civil Code (for more details, see our material on the cancellation of a gift agreement at the link):
- the donor has the right to cancel the donation if the donee has made an attempt on his life and health, as well as on the life and health of his close relatives;
- if the donee can spoil a thing that was given to him earlier, but nevertheless represents great non-property value for the donor;
- if the donor is a legal entity or an individual entrepreneur was in bankruptcy or pre-bankruptcy;
- if the donor survives the donee (and this is provided for in the gift agreement).
Statement of claim to challenge the gift agreement
The statement of claim must be properly completed. The preparation of the application should be entrusted to a specialist (lawyer or attorney), since it is necessary in the text of the document to correctly state the position of the plaintiff , references to legislative and regulatory acts, and also to form an evidence base.
When writing a claim, the document must indicate :
- details of the parties to the dispute and their location or addresses;
- subject and essence of the dispute;
- reasons and evidence;
- list of attached documents;
- date and signature of the applicant (or his representative).
The application is submitted to the court in several copies (depending on the number of parties to the case). The court employee marks the acceptance of the application on one copy and gives it to the plaintiff.
Period for challenging a donation
To challenge a donation, the legislation (Article 181 of the Civil Code of the Russian Federation) establishes certain deadlines during which the plaintiff has the opportunity to submit a corresponding application to the court. Depending on the situations and circumstances, the terms for challenging may vary:
- statute of limitations is 3 years : on the application of the consequences of an invalid transaction or on the recognition of a transaction as invalid (the period begins from the day of execution of the contract or from the day when the plaintiff learned about the beginning of execution of such a transaction);
- statute of limitations is 1 year : on declaring a voidable transaction invalid or on applying the consequences of its invalidity (the period begins when the person was released from threats or other actions - if the donation was made under duress, etc., or from the day when the plaintiff learned about the circumstances, allowing the donation to be invalidated).
The limitation period may be increased at the request of the plaintiff , but if there are significant circumstances in which this period has been missed.
Is it possible to?
Is it possible to cancel a donation agreement for a share of an apartment? Or how to return part of the property when donated?
Theoretically it is possible. In practice - only if there is an obvious violation of the law (Article 578).
Donation is a voluntary act of transferring a particular thing (in this case, a share of an apartment) into other hands, as well as all related rights.
A prerequisite for this is that the owner must be mentally sane and accountable for his actions . And if at the time of signing the contract this is exactly what he was, and the new owner did not do anything illegal, the chances of success are close to zero.
Who is eligible:
- donor;
- the heirs of the donor (if after his death it seemed to them that the relative left the world for a reason and the new owner had a hand in this);
- prosecutor's office;
- other interested party.
Donation agreement for part of an apartment: how to challenge it?
Challenging a donation after the death of the donor
Situations arise when heirs find out that the testator, during his lifetime, donated his property to one of his relatives or to a complete stranger. In this case, the heirs are deprived of the right to such property. But sometimes it is possible to challenge donations on the grounds provided by law. However, there are certain features for challenging a donation:
- The statute of limitations in this case is 3 years ;
- the plaintiff did not know or should not have known about the transaction during the period when the donor was alive.
Otherwise, it is almost impossible to challenge such a transaction. In court, it will be necessary to prove not only the grounds, but also the ignorance of the plaintiff during the period of the donor’s life.
Is it possible to cancel an apartment donation agreement?
I got sick with coronavirus and thought I was going to die. I urgently called a notary and drew up a deed of gift for my cousin’s nephew. Only another month has passed. I walked away and feel fine.
After reading your articles I became worried. I am 70 years old, but I am sick. The nephew is young, two children, the family seems to be positive. I don’t have any close relatives, but there are many like him. Is it possible to cancel a donation, and if so, under what conditions? I would not like litigation. What do you advise?
Natalya P.
If your cousin became the owner of the apartment, legally you have no rights to it. That is, your nephew has the right to write you out of the apartment and evict you through the court. So in theory. In practice, you may have a good relationship with your nephew’s family for many more years, and in gratitude for the donated apartment, you may be taken care of more than before.
If the gift agreement is certified by a notary, the registration period is shorter. The notary himself sends the documents to Rosreestr. If they are in electronic form, the period is reduced to one working day, if in paper form - up to three working days.
The parties to the gift agreement may refuse the services of a notary and independently take the documents to Rosreestr. This will delay the change of ownership. You can also indicate in the gift agreement the date when the notary must transfer documents for registration or when the apartment will be transferred to the new owner. There is probably no such clause in your contract, otherwise you would remember it.
When something is wrong with the documents, Rosreestr suspends registration and notifies you in writing. If you did not receive anything, then the donation took place. I will proceed from this.
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Usually the gift deed indicates that the gift has already been accepted. If there is no such clause in your agreement, your nephew may refuse the donated apartment.
To do this, he needs to contact Rosreestr with an application to register the refusal of the gift. The deadline for registering a refusal is the same as for registering a transfer of ownership.
In the Primorsky Territory, the donee and the donor turned to Rosreestr to register the termination of the agreement to donate part of the house. Rosreestr refused them because the agreement had already been registered.
But the court ordered Rosreestr to register the termination of the donation agreement, as a result of which part of the house was returned to the donor.
The court justified this by the fact that the contract provided for the possibility of terminating it.
It is impossible to simply cancel a donation if it has already taken place. There need to be good reasons for this. Without going to court, there is only one option: if your nephew dies before you, and the contract contains a condition that in this case you can cancel the gift.
Since your contract was certified by a notary, it will be even more difficult to invalidate the contract. The notary checks whether the citizen understands the meaning of his actions and asks him questions. If a notary has certified your contract, it means that he has no doubt about your legal capacity.
In the Krasnodar Territory, an elderly woman still managed to invalidate the gift agreement. Initially, the woman believed that she was signing a lifelong dependency agreement: she would be helped until her death, and then the assistant would get her apartment. As a result, it turned out that instead of an annuity agreement, she signed a gift agreement.
The court took into account the woman’s advanced age, chronic illnesses, stroke, legal illiteracy, eight years of education, extremely hostile relations with the recipient and the lack of other housing. Witnesses also helped.
They confirmed that the recipient constantly declared publicly that she would care for the old woman until death.
The lawyer who drafted the gift agreement also explained that she did not explain to the elderly woman what the transfer of ownership is and what its consequences are.
As a result, the woman proved that she did not want to transfer her apartment to another person during her lifetime. A year and a half later, she came to court again and finally discharged the failed owner from her apartment.
The promise to donate an apartment in itself does not worsen your financial well-being. But, for example, you started having complications after Covid - you need more medicine, but your pension is not enough.
Previously, you had enough money to live elsewhere if the nephew, as the owner, decided to move into the donated apartment with his family.
And now you are tied to an apartment, because otherwise you have nowhere to live: there is not enough money for another.
If you have a question about personal finance, luxury purchases or family budgeting, please write to us. We will answer the most interesting questions in the magazine.
Source: https://journal.tinkoff.ru/ask/hochu-vse-obratno/
Challenging the donation of an apartment
Donating an apartment has its own characteristics, failure to comply with which may result in the loss of the right to the gift if such a transaction is contested. Thus, the transaction of donating an apartment can be challenged on the following grounds:
- the transfer of real estate has not passed state registration;
- incapacity of the donor at the time of execution of the transaction;
- prohibition of donation;
- the possibility of losing the apartment or the presence of such a threat due to the actions of the donee;
- an attempt by the donee on the life and health of the donor or the donor’s family or relatives of the donor;
- other reasons.
You can challenge not only the donation of an apartment, but also the donation of a share of the apartment. The grounds for this are similar to the grounds for challenging the donation of an apartment.
Example
Alexey filed a lawsuit against Dmitry (the defendant) to invalidate the donation of 3/11 shares of the apartment. In substantiating his claims, Alexey indicated that his father entered into a donation agreement with Dmitry, transferring to the latter 3/11 shares of the apartment as ownership. The plaintiff indicated that when making the transaction, his father did not understand the significance of his actions and long before the conclusion of the transaction he was registered in a psychological dispensary. The plaintiff provided evidence to the court about his father being registered and receiving treatment.
The defendant, Dmitry, objected to the claim and asked the court to refuse to satisfy the plaintiff’s demands, citing the fact that at the time of the transaction, the notary who recorded (certified) this transaction had to check the legal capacity of the persons making this transaction.
The court, guided by the legislation of the Russian Federation and taking into account the evidence provided by the parties, satisfied the demands of Alexey (the plaintiff) and declared the contract invalid.
Practice of challenging feigned gift agreements
As is known, a gift transaction is considered to be sham, the conclusion of which was carried out to cover up any other transaction and intentions regarding it, in an attempt to achieve illegal goals, circumvent regulatory prohibitions and restrictions, etc.
Attention
Only the court can establish the validity of the grounds for recognizing a transaction as sham. According to paragraph 2 of Art. 170 of the Civil Code, the court’s determination of the sham of a specific donation (covering by it any other compensated transaction) entails its nullity, which is an unambiguous basis for recognizing the invalidity of the contract.
According to paragraph 2 of Art. 170 of the Civil Code, to a transaction that the parties intended to cover with a donation, taking into account its essence, the rules that regulate it are applied. If it is valid, the court may oblige the parties to enter into just such a transaction.
Donation instead of purchase and sale
Covering a purchase and sale transaction (Article 454 of the Civil Code) with a gift is the most common example of a sham transaction. The motive for such cover-up is most often the seller’s reluctance to pay income tax on the profit he receives.
For these purposes, the donor makes a gratuitous donation of any property in favor of the donee, and the funds received from a covert transaction are transferred to the donor on the basis of a receipt, which excludes gratuitousness . However, such a pretense construction seems quite logical if the parties are close relatives who are exempt from income tax when making a gift. If there is no relationship, such tax will have to be paid by the donee.
Thus, if a purchase or sale is covered by a gift, any person interested in the invalidity of the contract has the right to initiate legal proceedings to recognize its nullity. To do this, such a person must have a legally protected interest in recognizing the transaction as illegal, as well as all the necessary evidence of falsity - receipts, physical evidence, witness statements and any other documentary evidence of remuneration.
Gift instead of rent
An equally common example of a sham transaction is the cover of an annuity agreement with a donation (Article 583 of the Civil Code). As a rule, such pretense occurs either due to the legal illiteracy of the parties to the transaction, who introduced conditions characteristic of annuity into the gift agreement , or due to the dishonest intentions of the donee, in relation to his elderly relative, typical for such a transaction.
As standard conditions for such a sham transaction, one should consider the inclusion in the gift agreement of conditions regarding the lifelong maintenance of the donor, the regular provision of funds (rent), lifelong residence in the real estate donated by him, etc. Such conditions are a counter-obligation of the donee, which violate gratuitousness and make the donation feigned.
Note that donation and annuity differ not only in compensation, but also in the moment of transfer of ownership - in an annuity agreement it is determined by the death of the person alienating the property, while in a donation it is determined after the transfer of the gift or its registration. This gives the donor the right to terminate the gift agreement, since he did not understand the essence of the concluded transaction , also taking into account the fact that it is feigned.
Other interested parties also have the right to challenge the transaction on the basis of the above - most often these are the heirs and relatives of the donor.
Judicial practice of challenging donations
Judicial practice in cases of challenging gift agreements is not clear-cut. The courts are guided by current legislative norms, as well as the positions and explanations of higher courts. The main documents that courts use and rely on when making decisions in cases challenging gift transactions are:
- Civil Code of the Russian Federation;
- Determinations of the Presidium of the Supreme Court of the Russian Federation;
- Review of judicial practice in these cases.
However, the decisive factor influencing the decision made by the court is the evidence provided by the parties when challenging such transactions.
