Disposal of real estate is an opportunity that every owner can use at his own discretion, however, it is important to take into account all possible nuances and requirements established by the legislator. Owners of land plots can use a gift agreement to transfer part of the rights to their plot to another person (either a relative or family member, or any other person) for one purpose or another.
Attention
The part of the land plot transferred to the new owner, who is married, by way of gift, is his exclusive property and is not subject to division in the event of divorce.
When donating a part or share of a land plot, it is important to take into account the gratuitous nature of the transaction, since the presence of a counter-presentation in any form on the part of the new owner may become grounds for declaring the transaction void. In addition, the owner can donate part of a land plot only during his lifetime, since the use of a gift agreement as an alternative to a will is unacceptable.
The concept of shared ownership
A share is an abstract given, a certain set of powers in relation to a certain thing, including in relation to real estate. The shared nature of ownership of a thing simultaneously to several persons presupposes a clear definition of the shares of each such person in the right of ownership . The size of shares in shared ownership can be determined on the basis of the provisions of the law or on the basis of an agreement concluded between the co-owners. If such a size is not determined, it is considered equal (this follows from clause 1 of Article 245 of the Civil Code of the Russian Federation).
Can a husband give his wife a share in an apartment?
Very often, families come to the conclusion that the apartment must be owned by one of the parties.
Then the question arises: can a spouse give his wife his share of real estate? Such a possibility actually exists.
The same as donating a share of an apartment or land. Real estate purchased during marriage is considered jointly acquired (common) and is therefore divided in half.
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Features of donating a share of land
Under a donation agreement for a part of a land plot, the donor transfers or undertakes to transfer to the donee a part of the ownership of the plot free of charge.
The donor has the right, without notifying other owners, to donate that share of the land that belongs to him. In this case, the rule regarding the preemptive purchase of shared ownership by the remaining participants does not apply. However, if the share of the plot transferred as a gift is the joint property of the spouses, then the consent of the second spouse to the donation is required .
When donating land, it is important to determine what will happen to the buildings that may be on it. Under the terms of the agreement, all buildings can go to the new owner, or they can remain with the previous owner.
Example
According to the donation agreement, donor A. donated a share of the land plot to the donee N. At the same time, the donor retained ownership of the buildings (garage and hangar) located on this site.
Documentation
A spouse who decides to transfer ownership rights to his wife should ensure that a certain number of documents are available. First of all, you will need the following papers:
- Civil passports of spouses. They are necessary to identify the participants in the transaction.
- Marriage certificate.
- Title papers. Including documents on the basis of which the donor became the owner (inheritance, purchase, donation).
- Extract from the house register. It is valid for only 30 days, so you should hurry up with the registration of the deed of gift.
- Technical documents. Technical passport or cadastral passport, as well as papers from the BTI.
- Written permission for donation from other co-owners.
If spouses contact a notary, he may request additional certificates.
This is interesting: State duty for donating a land plot
Donation of part of the land plot
Unlike the donation of a share, a donation of a part of a land plot requires the allocation of a new land plot from its composition . To do this you need the following:
- divide this land plot with a clear definition of boundaries and obtain title documents (if the plot is not actually divided);
- collect the necessary documents for the transaction;
- draw up a donation agreement for the allocated land plot;
- contact Rosreestr to register the transfer of ownership;
- pay the government duty;
- wait a certain time established by law;
For your information
In order to actually divide a plot, namely to allocate a specific land part, you need to contact a cadastral engineer who has a license to carry out his activities. He must survey the land. After this, you need to contact the land department of the local administration and get the cadastral number of the new land plot there.
Then, you can contact Rosreestr to obtain a new certificate of land ownership. Next, you can draw up a gift agreement, and no consent of other owners is required.
Donation agreement for part of a land plot
In all cases, the donation of part of the land is concluded in writing . Notarization is not required, however, you can resort to the services of a notary at the request of the parties, as this will be an additional guarantee that when concluding a transaction, all legal requirements were met.
In this case, it will be much more difficult to challenge the transaction . Payment for notary services is usually calculated as a percentage of the cadastral value of the land share being donated, and varies depending on whether the donee is a close relative of the donor (in the case of a gift between close relatives, you will have to pay less).
The donation of a plot must be formalized in the form of a written document , the structure of which should be as follows:
- Name of the agreement, place and date of its conclusion;
- Information about the donee and the donor (surnames, first names, addresses, passport details);
- The subject of the agreement is an indication of the size of the alienated share;
- The total cost of the plot and the price of the donated part;
- Rights and obligations of the parties (including the right to cancel the donation, refuse to fulfill the contract, refuse the gift, return the gift, as well as the procedure for incurring expenses associated with the transfer of ownership of the gift);
- The procedure for transferring land (after registering the transfer of ownership by drawing up a transfer and acceptance certificate);
- Responsibility of the parties under the contract;
- Possible grounds for termination of a transaction and the procedure for such termination;
- Features of resolving possible disagreements;
- Unseen circumstances;
- Signatures of the parties.
Thus, in this case, the deed of gift must contain the following information:
- about the place of drawing up the contract;
- about the date of compilation, in words;
- about the parties to the agreement (full name, passport details, addresses of their place of residence);
- about the location of the new land plot;
- about its cadastral number;
- about the area and purpose of the land, as well as the buildings that exist on it;
- about title documents, i.e. documents on the basis of which the plot belongs (purchase and sale agreement, court decision);
- about property disputes regarding real estate, or restrictions on it;
- on the details of the certificate of ownership of the subject of the contract.
The document must also contain attachments:
- land plan;
- requirements of the pledge holder (in case the share is pledged).
Important
The agreement must be signed by the donor and the recipient. The signature is carried out in the presence of a rights registrar, i.e. in the territorial branch of Rosreestr. The deed of gift is made in three identical copies. One copy is for the donor, the second is for the donee, and the third is for registering the transaction with the Federal Registration Service.
The contract can stipulate that the donor is legally capable at the time of execution of the transaction and is aware of the actions he is performing. This is necessary to ensure that a dispute does not arise in the future regarding the invalidation of the contract. In addition, it should be added to the content of the agreement that it has the force of a transfer deed. Otherwise, you will have to draw up a transfer and acceptance certificate in triplicate.
Registration of a donation agreement for part of a land plot
After concluding a donation agreement, you need to formalize the transfer of ownership of part of the real estate . This can be done no earlier than the agreement comes into force (for example, if the transaction involves a promise to donate part of the plot in the future, you need to apply only after such a moment in the future comes). According to the law, the recipient’s ownership of a gift will arise no earlier than the registration of such a right in the Unified Register of Property Rights in Real Estate (USRP).
The donee and donor must apply to the registration authority together by submitting a joint application for registration. After checking the application by a specialist, applicants receive a receipt in which, in accordance with paragraph 6 of Art. 16 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”, the deadline for receiving ready documents must be specified to the minute (it cannot be more than 10 days from the date of submission of documents).
Registration of the transfer of rights to part of the site requires the collection of the following documents:
- registration application;
- receipt of payment of state duty;
- documents confirming the identity of the parties to the transaction (if the party is a legal entity, then such documents are provided by its representative);
- certificate of ownership in the name of the donor;
- gift agreement;
- documents for the plot (cadastral plan indicating its value).
If there is common joint ownership , a notarized consent of the remaining owners to donate part of the plot is required. In addition, if the parties to a transaction refer to close relationship in order to avoid taxation, documents that confirm this may be necessary.
Additionally
In cases where there is a certain encumbrance on the site (easement, mortgage, lease, arrest, etc.), the donee must be warned about this by providing the relevant documents. All restrictions and encumbrances are transferred to the new owner under the transaction.
Thus, in order to register a transaction of transfer of ownership of a part of a land plot to another person, you must submit an application to the Federal Service for State Registration, Cadastre and Cartography (territorial division of Rosreestr) at the location of the real estate, as well as a package of necessary documents.
This application can be submitted in any of three ways:
- by personally submitting an application to the registration authority;
- by post;
- by visiting the official website of state and municipal services;
must be attached . The person who will pay the state duty is not established by law. It can be either the donor or the recipient. The option of dividing the amount in half is not excluded. But as a rule, the donee pays the state duty.
After the package of documents has been submitted, you only have to wait 10 working days until employees of the territorial division of Rosreestr formalize the transfer of ownership. (Clause 3, Article 13 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” (with amendments and additions).
Attention
If the documents are notarized, then the period for registering rights is reduced to 3 working days , not counting the day of submission of documents for registration.
As for income tax , which is paid if the parties to the agreement are not relatives, it is set at 13% of the value of the specific share of the land plot received.
Gift agreement between spouses
I would like to hear your professional opinion. So, here's the situation. During the period of registered marriage, the spouse builds and puts into operation a residential building, receives a certificate of ownership, where the owner of this residential property is the spouse. Now, the husband wants to give the house to his wife so that she is the sole owner of this property, and this property is no longer part of the common property. Is it necessary to draw up an agreement on the allocation of shares in this situation? Or can we just get by with a gift agreement? Is it possible to draw up a mixed agreement that will define shares in this property and direct donations to his wife?
Thank you for your attention!
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This is interesting: Sample agreement for the donation of land by power of attorney
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Taxes when donating part of a land plot
Taxation has already been mentioned above. Indeed, a gift is income of the donee, which is subject to tax. But not every donee is obliged to pay the state 13% of the cadastral value of the gift: if the parties to the transaction are close relatives (the legislator includes spouses, children and their parents, grandparents and grandchildren, brothers and sisters, including half-bloods, as close relatives), as well as adoptive parents and adopted children), then no tax is paid .
