What is a gift agreement?
Art. 572 of the Civil Code of the Russian Federation defines it as a bilateral agreement on the gratuitous transfer of property or an obligation to fulfill this later, indicating a specific deadline.
It is drawn up in writing if its subject is an apartment, house or share in them. Until March 1, 2013, contracts were subject to mandatory state registration. Agreements entered into after this date are not subject to the requirements. Only the transfer of ownership is registered in Rosreestr.
Is it possible to cancel a gift deed for an apartment?
It is difficult to revoke a gift agreement; compelling arguments are required to invalidate it. For example, proven violations committed during the registration and re-registration of property rights may serve as grounds for cancellation of a transaction. All the main objective grounds for canceling a deed of gift are listed in Article 578 of the Civil Code of the Russian Federation.
There are two types of contracts:
- When the gratuitous transfer of rights occurs immediately after the conclusion of the transaction;
- When one of the terms of the agreement is a clause obliging the donor to re-register the apartment in the name of the donee and move out of it within a certain period of time.
Until the agreement has entered into legal force, the owner of the apartment can cancel the donation of the apartment and unilaterally refuse the transaction, having notified the other party to the agreement in writing.
A recipient who has not received his gift has the legal right to file a claim in court to force the donor to fulfill his obligations under the deed of gift. Only by providing sufficient grounds to recognize the legality of the refusal will the owner of residential property be able to defend his square meters, otherwise the transaction will have to be completed.
Legislative regulations
All agreements between individuals are governed by civil law. The 32nd Chapter is devoted to the donation procedure in the Civil Code of the Russian Federation. It contains all the necessary information about the procedure for concluding a deed of gift, including the reasons for canceling the transaction (Article 578).
How can I revoke a deed of gift for an apartment?
To refuse a decision previously made and confirmed in writing, compelling reasons are required.
In Art. 578 of the Civil Code of the Russian Federation allows for the following reasons:
- Murder of the donor by the recipient.
- An attempt by the new owner on the life and health of the donor and his relatives.
- Bankruptcy, if the agreement is concluded no later than 6 months before the start of the process.
- In the event of the death of the donee, if provided for in the agreement.
Is it possible to refuse to transfer an apartment due to personal hostility, quarrels, or other circumstances? Yes, but the gift agreement can be terminated by agreement of the parties. It must be voluntary. Threats and blackmail are unacceptable.
Cancellation of a donation is possible if it was made under pressure or as a result of deception (Article 179 of the Civil Code of the Russian Federation), was imaginary or secured by the signature of an incapacitated person.
If the property has passed to another owner
The right to real estate arises from the moment an entry is made in Rosreestr and a document confirming this is received. And this moment determines when you can sell the apartment after donation: even on the same day. In some cases, this affects the amount of tax on the transaction. But there are no restrictions on the owner’s right to dispose of his property.
If the gift agreement is terminated, then the apartment can no longer be taken away from the person who acquired it legally. In each case, the court makes a decision taking into account all the circumstances of the particular situation.
Regulating the process
The concept of cancellation of a donation and the regulations for its implementation are contained in Article 578 of the Civil Code of the Russian Federation.
It lists the grounds for the seizure of a donated property already owned.
According to this article, under certain circumstances, it is possible to carry out the procedure for revoking (cancelling) a donation for significant or important reasons . It is necessary to prove the significance of the reasons through the court.
Articles of the Civil Code of the Russian Federation, which provide for the invalidation of concluded agreements, are applicable to the procedure for challenging a donation. According to these rules, the following types of transactions are canceled:
- Compiled in violation of the requirements of the law. The donation is absolutely free and unconditional. The presence of conditions that the donee must fulfill in order to become the full owner deprives it of legal force. These include, for example, the transfer of rights after the death of the donor (Article 168 of the Civil Code of the Russian Federation).
- Imaginary. Transactions are recognized as such when, under the guise of a gift to reduce the state duty, a purchase, sale or exchange is carried out (Article 170 of the Civil Code of the Russian Federation). In such conditions, the second party will have to return the money paid.
- Prisoners with an incapacitated person. These contracts are terminated without fail if the legal representatives of the incapacitated person were not aware of them (Article 177 of the Civil Code of the Russian Federation).
- Committed under threats or through deception or misrepresentation. Such documents are often signed under the guise of other papers, and the person does not understand what he is doing. That is, the agreement does not reflect the real will of the owner (Article 179 of the Civil Code of Russia).
These rules apply to cases where the apartment is not transferred to the recipient of his own free will .
Independent refusal of the donated property by the recipient is carried out under Article 573 of the Civil Code of the Russian Federation. A concluded and already executed agreement is revoked by submitting an application to Rosreestr. Unlike a challenge, such a refusal is carried out without the participation of a court.
Article 575 of the Civil Code of the Russian Federation lists unacceptable cases of concluding agreements. Cancellation of the deed of gift is made if:
- The property was registered as a gift by the legal representative or guardian of a minor under 14 years of age or an incapacitated person on his behalf.
- The apartment was received by a municipal employee or a bank representative as an incentive for services rendered.
- The property was accepted as a gift by employees of guardianship authorities, educational or medical institutions on behalf of pupils or patients .
- The deal was concluded between employees of commercial institutions .
- The transaction was made by a person who does not have legal rights to the property.
All these types of transactions are prohibited by law and are subject to mandatory cancellation .
Find out on our website whether the procedure for donating an apartment with an encumbrance, for example, with the right of lifelong residence or a mortgage, is legal, as well as other special cases.
The deed of gift can be challenged or canceled either by the donor himself or by a third party in the event of his death or recognition as incapacitated. According to Article 56 of the Code of Civil Procedure of the Russian Federation, the responsibility for collecting and presenting evidence of the grounds for challenging a transaction lies with the applicant in court.
If the transfer of the apartment to the new owner has not been registered and the transaction is still in the process of being finalized, it can be canceled by submitting an application to Rosreestr.
The process of transferring the apartment to another person is stopped and canceled automatically .
A document that is not registered with Rosreestr is also considered invalid.
The owner of real estate is considered to be a person who has a Certificate of Ownership ; in this case, a deed of gift does not give rights to the property.
How to sue
This category of disputes is among the most complex. It is advisable to seek the help of a lawyer as soon as such a question arises. At the first consultation, he will tell you whether it is possible to cancel the apartment donation agreement, what prerequisites can be considered important, and whether and what judicial practice has existed in similar cases. He will also help you prepare the necessary documents.
Sample statement of claim
To protect your rights, it is not enough to simply state the facts. It is also necessary to provide evidence and references to regulations. Without this, the case will not be accepted for consideration.
The name of the court, full names of the plaintiff and defendant, and addresses must be indicated. It is also important to clearly formulate the claims. If the case is non-standard, a lawyer will help you do this.
Required documents
When going to court, you need to submit another copy of the statement of claim for the defendant and a copy of the gift agreement. In addition, a state fee is paid.
The remaining documents are submitted at the request of the plaintiff.
Jurisdiction
The statement of claim must be filed at the defendant’s place of residence. If it is unknown, based on the location of the disputed property. This category of cases is considered by district courts of general jurisdiction.
Deadlines
Having learned about a violation of your rights (for example, beating a close relative of the recipient or keeping the apartment in poor condition), you should not delay resolving the issue. You can go to court within 1 or 3 years, depending on whether we are talking about declaring the contract void or challenging it. These deadlines may be extended if the claim is not filed for valid reasons (long-term illness confirmed by a certificate from a medical institution, business trip, etc.).
State duty
Litigation of a case in court requires certain costs. They are paid in advance by the plaintiff. But if the decision is made in his favor, they are recovered from the defendant (Article 103 of the Code of Civil Procedure of the Russian Federation).
The amount of state duty depends on the value of the disputed property. The calculation formula is specified in Art. 333 Tax Code of the Russian Federation.
Conditions for canceling a deal
As stated above, the transfer of apartments as a gratuitous gift is a civil contract that can be canceled or declared illegal. In this regard, the Civil Code provides for two legal ways to cancel a deed of gift:
- the first method is the legal facts directly stated in Article 578 of the Civil Code;
- the second method is the legal actions of the parties who, under the gift agreement, meant other transactions, or took possession of property through deception, physical or moral violence against the donor.
Let's consider the first method.
Article 578 of the Civil Code establishes the following legal facts, the occurrence of which directly entails the cancellation of the gift agreement.
- When various bodily injuries are caused to close relatives or the donor by the one who received the property (apartment) as a gratuitous gift. This also includes an attempt on the life of the donor or his relatives (close and distant), but without actual deprivation of life.
- If the donor finds himself in a difficult financial situation, or has lost his only home.
- If the person who received the apartment as a gift is negligent towards its safety and integrity. For example, intentional damage to property, in which the property lost part of its marketable value or was completely destroyed (fire, flooding, explosion, and other actions leading to destruction).
- In case of premature death of the recipient, that is, he will pass away before the donor. But here the law provides a clear clause; such a condition must be stated in the agreement and notarized. Otherwise, such real estate will become the object of inheritance by law or will.
- If the donor turned out to be an individual entrepreneur, or a legal entity, who thus tried to withdraw their property from confiscation and forced sale in situations where they were declared bankrupt, or the corresponding liquidation procedure was initiated.
- When the life of the donor is taken by the recipient. In this case, the procedure for invalidating the agreement begins upon the claim of a close or other relative of the former owner of the apartment.
- If the parties, after signing the gift agreement, have not completed other mandatory actions. For example, the apartment was not registered to another owner in the state register.
- The last is the conclusion of a gift agreement by a person who, in accordance with the procedure established by law, was declared incompetent, or at the time of signing the documents was under the influence of alcohol, drugs, or suffered temporary mental insanity.
Citizens who are over 18 years of age are recognized as legally capable, and their rights are not limited by the court (mental insanity, guardianship). Temporary mental insanity can occur under the influence of various factors, and is characterized by the fact that it passes after some time, without recognizing the person as incompetent.
These grounds are expressly specified in the law, the occurrence of which entails the automatic cancellation of the deed of gift.
It is important to understand that the above terms and conditions do not provide for automatic cancellation. In order to declare a transaction invalid on such grounds, you must file a statement of claim in court, in which you must indicate one of the above-mentioned legal facts, supporting your claims with relevant evidence.
Read more about canceling an apartment donation transaction in this article.
Special cases of invalidation of a gift agreement
The agreement can be annulled by the court if there are legal grounds.
You need to know in what cases the cancellation of a gift agreement is allowed.
It's possible:
- If the donor is declared incompetent.
- In case of non-compliance with the registration form.
- Conclusion of a deed of gift under pressure, threats, or as a result of deception.
- The contract is imaginary.
- Upon the death of the recipient, if this clause is included in the agreement.
All grounds are documented.
In what cases can a gift deed be revoked?
The donee can revoke the deed of gift at any time, while the donor needs good reasons for this. The donor can carry out this procedure in one of two cases:
- When concluding the transaction, the law was violated, the donor was forced into it or was deceived.
- There is one of the above-described grounds for termination of the contract.
Reference! It is best to try to come to an agreement with your opponent and explain the situation to him. If the other side responds with understanding, everything will be much simpler.
Recognition of the donor as incapacitated or partially capable
The owner of the property can be a person suffering from mental illness, alcoholism, or a minor. And they sometimes manage their property independently. In such cases, guardians and legal representatives have a question whether it is possible to terminate the gift agreement. Yes, if there are documents from a medical institution confirming that the person could not fully understand the consequences of his actions. For minors, it is enough to present a birth certificate confirming that at the time of signing the agreement the donor was under 18 years of age, provided that there are no signatures of his legal representatives on it.
How to cancel or terminate the donation of a share in an apartment without court
The parties to the agreement can resolve the issue peacefully. The procedure for terminating a gift agreement is the same as when concluding it. The parties to the transaction need to draw up a new agreement, have it certified by a notary, and re-register ownership of the property to the donor. Ongoing costs are usually borne by the initiator of the procedure.
Procedure
The algorithm of actions of the interested party depends on the method of terminating the gift agreement. Voluntary order:
- Conduct of negotiations.
- Preparation of documents.
- Contacting a notary.
- Conclusion of a new agreement.
- Re-registration of ownership rights to the donor.
Procedure
Most often, the initiator of the cancellation of the gift agreement is the previous owner of the property. The reasons may vary. One of them is the deterioration of the financial situation. The donor will have to contact the beneficiary and negotiate with them. The recipient may enter into his position and agree to terminate the transaction.
The parties to the transaction will have to prepare a draft of a new agreement and visit the notary again. Following the transaction, the parties to the agreement will have to re-register documents in Rosreestr.
Documentation
To conclude an agreement to terminate a deed of gift you will need:
- Original donation agreement.
- Passports of the parties to the transaction.
- Documents for the property.
- Receipt for payment of the state fee.
Expenses
A state fee is charged for notarization of transactions. Termination of gift agreements is no exception. The fee for certifying transactions that are not subject to assessment is 500 rubles. (Article 333.24 of the Tax Code of the Russian Federation).
Separately, the parties to the transaction will have to pay for notary services. Details about the cost of services must be clarified at the time of the transaction in a specific region.
Deadlines
The voluntary procedure for terminating a gift agreement does not provide for any deadlines. Participants in a transaction can contact a notary at any time and enter into a new agreement. However, here it is necessary to take into account the basis for canceling the contract. If there are no reasons for terminating the transaction, then the recipient is not obliged to enter into a new agreement.
Who can cancel the inheritance and return the living space if the donor dies?
If the donor dies before signing the contract or before completing the registration procedure, the transfer of ownership of the donated item does not come into force. In this case, interested persons from among the relatives of the donor entering into the inheritance can revoke the deed of gift.
In the absence of heirs, the state legally claims the escheated property of the deceased owner, which remains unclaimed by the heirs.
When the death of the former owner occurs after the full transfer of real rights without the fault of the donee, he continues to use the thing or real estate as his own, actually owning it. In this case, revocation of the deed of gift is allowed only under conditions of violation of the inherited interests of the owners or in violation of the documentation procedure.
If the new owner was involved in the death of the donor, a criminal case is opened against him , and the property is subject to restitution. Having been confiscated from the attacker, the donated valuables, as well as movable and immovable property, are transferred to the heirs and are subject to joint distribution in the total inheritance mass according to the standards of Article 578 of the Civil Code of the Russian Federation.
IMPORTANT : Co-owners of an apartment in joint shared ownership have priority in purchasing the apartment only when registering the sale and purchase and cannot interfere with the donation procedure.
On our website we also talked about how to formalize the donation of a share of an apartment to relatives and children, how to correctly draw up a gift agreement for two recipients in equal shares, how much a donation agreement costs from a notary, and what is the amount of state duty and tax when registering a transaction.
