Buying an apartment under a gift agreement (sample) - funds, risks, pitfalls, taxable, in case of divorce, more or less than 3 years, divorce

If an apartment is transferred under a gift agreement , the parties receive both significant advantages and certain risks. What do experienced specialists recommend paying attention to in order to avoid negative consequences? And what pitfalls might unexpectedly arise in the future when the property has been donated?

Letter of the law

When drawing up a deed of gift, it is worth understanding the nuances of this legal document.

Parties to the transaction. There are two of them - the giver and the recipient. The first, being the owner of the property, transfers it to another person - the donee, who accepts this property. The donor can be an individual, but it can also be a legal entity. The recipient may belong to both categories. The parties may be relatives or persons who are not related.
The subject of the transaction is real estate: an apartment or a share in an apartment.
Free basis for transfer of property. When donating real estate, it is implied that it is transferred to another person free of charge, that is, as a gift. In this situation, the donor does not receive any money or services in return for the donated property.

When donating an apartment is prohibited

According to Russian laws, it is not possible to draw up a gift document in all situations. The law prohibits the transfer of real estate free of charge in the following cases:

If both parties are commercial enterprises;
when transferring real estate from a patient to the attending physician or social worker;
civil servants, when real estate is planned to be donated as part of the performance of their direct duties;
student to teacher.

In all such situations, the law allows making gifts, but their price should not exceed three thousand rubles. The document is not signed.

Types of deed of gift for an apartment

When a deed of gift for real estate is drawn up for a relative or other person, Russian legislation provides for two forms of deed of gift. They differ in what property is planned to be donated, as well as in the conditions that are stipulated in this document.

Advantages of registering a deed of gift for real estate

Registration of an apartment using a deed of gift, according to experienced lawyers, has both its advantages and disadvantages, which are more appropriately called risks.

The advantages of this form of real estate transfer transaction are directly related to who exactly are the parties to the agreement. As a rule, these are people connected by family ties. Donation allows them to quickly and without much hassle transfer an apartment or a share in it. In this situation, we can list several main advantages.

Simplicity of design. A deed of gift for an entire apartment does not need to be notarized. For it to be valid, it is enough to draw up a document in writing, and then put signatures on it - the donor and the recipient. The main thing is that everything in the document is legally correct and there are no factual or legal errors. If a share in an apartment is given as a gift, the transaction must be certified by a notary.
Such a document allows you to transfer real estate to individuals, including minors, as well as legal entities.
Property rights when signing a deed of gift are considered more reliable. This means that the property that was gifted becomes the personal property of the recipient in any situation. That is, the rights of a spouse do not apply to him if the person is married at the time of concluding the gift agreement. This is the main difference between this type of transaction and a sale and purchase, when the spouse has rights to the purchased property and can demand his share in the event of a divorce.
A deed of gift makes it possible to circumvent some of the restrictions of the law. The owner of a share in an apartment is given the right to transfer it as a gift to any person of his choice. If the share is intended to be sold, then, by law, the preemptive right to buy it belongs to those who own the remaining shares of this housing.
It is difficult to challenge a deed of gift. The law allows you to challenge this document within a short period of time - only three years.
There is no need to pay income tax on real estate received as a gift. This rule works when an apartment or a share in it is transferred to a close relative. In other situations, the recipient is obliged to pay personal income tax - 13% of the value of the donated property. This figure should not be underestimated, since tax officials have the right to check the compliance of the assessment with the real market value of housing, and then recalculate the tax amount.

Risks and pitfalls

Of course, the security of such a transaction leaves much to be desired. After all, you will not be able to then demand that your opponent fulfill his agreements through the court.

This is especially true for sellers rather than buyers. But the buyer will not be able to sue the seller if something turns out to be wrong with the housing.

However, there are other risks and pitfalls. Among them are the following:

If there are no closely related ties between the donor and the donee, the donee will have to pay a thirteen percent income tax. That is, the cost of the apartment for you increases by 13% of the cadastral assessed value. If the seller undertakes to pay the tax, it will not be possible to record this on paper.
It is much easier to challenge a deed of gift in court. This is the main risk for the buyer. Of course, it is also very difficult to challenge a gift agreement. But the purchase and sale agreement is much more reliable in this regard. The seller can specifically include some clause in the deed of gift, which can then be used to challenge the transaction in court. Moreover, if the agreement is not certified by a notary, it will have less legal force in court.

In addition, there are situations when it is simply impossible to draw up a deed of gift to cover a purchase and sale agreement. This is due to some features of the deal:

If the property is in common joint ownership, it cannot be donated without obtaining the consent of the other owners. In the case of purchase and sale, this problem can be solved.
Some categories of citizens cannot be participants in the donation. This is defined in Article 575 of the Civil Code of the Russian Federation. These include the following:

minor children;
employees of educational, medical and social organizations;
officials;
commercial organizations.

Attention! In the case of minor children, none of the transaction options will work. But in other situations, a purchase and sale agreement is the only option, even if it is actually a gift.

Disadvantages and risks of donation

However, donation also implies the presence of certain difficulties when concluding a transaction.

Various conditions and encumbrances on real estate cannot be included in the contract. Such an agreement assumes that the property is transferred without any conditions to the recipient or without encumbrances. Otherwise, it is possible to qualify the gift agreement as a void transaction and its cancellation.
Such an agreement can be challenged in court. This is quite difficult, but such an opportunity is given by law, especially in cases where the donor is an elderly person. In this situation, relatives can seek to have him declared incompetent at the time of signing the gift agreement, and thereby cancel the transaction. In the event that the donor dies before the period of three years allotted by law, challenging the document is permitted by law in the same manner - on the basis of the donor’s incapacity.
The transaction of donating real estate is irrevocable. This means that the return of real estate or in it to the donor can be carried out in exceptional situations, for example, if he has nowhere to live, or if the recipient has committed criminal acts against the donor. The law does not provide for other opportunities to return property. Therefore, experienced lawyers recommend that owners sign agreements to donate an apartment only if they are completely confident that the recipient will not kick them out of it in the future.

All these risks should be taken into account not only by the donor and the recipient, but also by the person who decides to buy the donated housing in the future. It may face the fact that the donor’s relatives will want to challenge the gift agreement: this is fraught with the loss of the purchased property and the loss of the money paid for its purchase.

Other benefits

Other advantages of purchasing real estate under a gift deed include:

Shortened waiting period for the tax-free period. So, if an apartment was purchased under a compensation agreement, then the new owner can sell it in the future without paying personal income tax only after five years. Thus, the law puts a barrier to the illegal commercial circulation of real estate through its constant resale. If the apartment or land was received as a gift, then it will be possible to sell it without paying a tax fee after 3 years (NKRF Article No. 217).
Possibility of termination of the deed of gift at the initiative of the donor. The Civil Code of the Russian Federation in Article No. 578 allows for the possibility of canceling a deed of gift if the donee has committed any dangerous crime against the donor or members of his family. As a rule, we are talking about an attempt on human life and health.
In the agreement for donating an apartment, the donor can write down a clause under which he will have the right to live in it - either for a certain time or for life. An attempt by the new owner to evict the donor will be regarded as a violation of the contract, and it will be canceled through the court. When selling a home, the seller loses all rights to the property, including the right of residence.

Donation also has its own legal nuances:

If real estate was transferred as a gift from one spouse to the other, then in the event of a divorce it is not subject to the provisions of marital property. The donated property remains the full personal property of the new owner and is not subject to division.
It is not allowed to conclude a gift agreement between two commercial enterprises or individuals with individual entrepreneur status. By doing this, the state prevents attempts to conceal or illegally withdraw part of the enterprise’s property.

When is it profitable to transfer housing under a gift agreement?

When choosing a method for registering the transfer of an apartment or a share in it to another person, experts recommend relying on the following criteria when choosing a gift agreement. Signing such a document, as experienced lawyers believe, is profitable and convenient if

the parties to the transaction are close relatives, and the transfer of housing for them is just a formality;
the donor has another home where he can live by transferring his apartment or share in it to another person;
the donor has full confidence that when he signs the donation agreement, he will still have the right to live in the donated living space.

When the owner of an apartment or a share in it has doubts that the recipient will justify his trust, lawyers recommend using other options for formalizing a real estate transaction, for example, a will or an exchange agreement . Under a will, real estate passes to the new owner only after the testator dies. And an exchange transaction implies that in exchange for the property received, the other party gives something to the owner of the property - other property or services.

The third option is to draw up a purchase and sale agreement, according to which the buyer pays the cost of the apartment or a share in it. A rental agreement can also be concluded : the property becomes the property of the new owner after he pays its cost in installments or performs any actions specified in the document, for example, caring for a sick or elderly owner of the apartment.

Prohibition and restriction on donating an apartment

Under certain conditions, an agreement can be declared invalid only because the donor or donee does not comply with the conditions of the law (Articles 575-576 of the Civil Code of the Russian Federation).

A minor or incapacitated person cannot act as a donor. Moreover, not only such a person cannot be a donor, but also his trustee/guardian/parent does not have the right to give the property of such an owner to other persons.
You cannot give real estate to persons working in the field of social employment, education, medicine, and so on. You also cannot give apartments to government employees.
Commercial organizations cannot give each other real estate.

Fraudsters can take advantage of any of these situations.

Example: One person offers another an apartment as a gift, after which the recipient must supposedly give the donor of the home a certain amount free of charge, only “randomly” identical to the cost of the apartment on the market. However, after this was done, it turns out that the housing is owned by a minor child. The donor disputes the gift agreement, allegedly as executed erroneously. Formally, the donee did not pay anything (otherwise the transaction would not be recognized as valid for this reason) so the donor takes his apartment and keeps the money for himself (the donee simply will not be able to prove that he transferred it).

Sample: Gift Agreement

Apartment donation agreement
Donation agreement for land and residential building

Conclusion

A donation agreement for an apartment or a share in it provides the parties with a number of significant advantages, but at the same time contains certain conditions and risks. According to lawyers, when choosing this form of formalizing the transfer of an apartment or a share in it, it is worth carefully assessing the relationship between the potential donor and the recipient. This form of formalizing relationships, experts believe, allows both parties to win only if they are relatives and there is a high level of trust between them.

You should also not neglect the notarization of the document: this will be an additional guarantee of confidence that the transaction will not bring negative consequences in the future.

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