Sample agreement for the gift of a share in an apartment between close relatives

Today, with rare exceptions, you can donate any property. And this right applies not only to the property as a whole, but also to a certain part of it - a share.

A separate procedure exists for residential real estate. In particular, according to regulatory documents, it is possible to conclude a transaction such as an agreement to donate a share in an apartment . Recently, thanks to amendments from legislators, this agreement is drawn up according to a special procedure.

In this material we will talk about how to properly arrange the transfer of part of an apartment as a gift to both relatives and strangers. In addition, special attention will be paid to the taxation of the received real estate.

New law on donating a share in an apartment

Changes in the alienation of shares in residential real estate came into force in June 2021 thanks to Law No. 172-FZ and subsequent amendments. These documents introduced amendments to a number of regulatory documents.

Among them is Law No. 218 Federal Law, which determines the procedure for registering rights to real estate and some features of transactions with it. Thus, part 1 of Article 42 states that an apartment donation agreement certified by a notary is required. Otherwise, the transaction regarding the transfer of rights to the donee simply will not be registered.

It does not matter whether the share is alienated in favor of the remaining owners or third parties. The same applies to giving a gift to one of your close relatives.

Is it possible to issue a deed of gift for an apartment with a mortgage?

quoted1 > > Donation of real estate is one of the most common transactions between relatives and loved ones. This is due to the fact that when a deed of gift is concluded within a family, the donor is exempt from paying any taxes.

As a result of this transaction, ownership of the gift always passes to the recipient. This means that from the moment the agreement is signed, he will have the right to own and dispose of the donated property at his own discretion.

Often, when completing a transaction to donate an apartment, its participants encounter various kinds of difficulties. For example, the subject of the transaction may be under an encumbrance, ranging from a mortgage to an easement.

Many owners of such real estate are wondering: is it possible to issue a deed of gift for an apartment with a mortgage? You will learn about this in this article.

Moreover, we will tell you how to properly formalize such a transaction and what else you should pay attention to when drawing up an agreement.

Contents of the article: Before you start donating an apartment or its share that is under a mortgage, remember that you still have financial obligations to the bank. This means that this procedure will have many nuances and limitations.

So, its main feature is that a third party will be present in the transaction - a credit institution, since it also has some rights to the apartment, along with its owner.

Please note that the borrower’s ability to carry out such transactions must be specified in the loan agreement. Information! If the borrower, when purchasing an apartment, knows that he will sell it, he should include this clause in the loan agreement even before it is signed.

This will reduce his risk of being rejected by the lender, and will also significantly simplify the procedure for obtaining consent. The entire procedure related to the donation of real estate is regulated by Chapter.

32 of the Civil Code of the Russian Federation. And yet, how to donate an apartment that is under encumbrance?

The following instructions must be followed:

Contents of the deed of gift for a share

First of all, it should provide for the free transfer of part of the apartment.

If a gift agreement involves reciprocal obligations from the opposite party, then this will no longer be considered a gift.

It is necessary to describe the part of the property that is transferred into ownership. In this case, you should indicate not only the size of the share, but also its expression in square meters of total and living space.

Next, you should indicate the period for transferring the property. It may not coincide with the actual date of signing the contract.

In addition, often the provision of a gift may be associated with a specific event:

• marriage;
• reaching adulthood;
• completion of studies at the institute.

It is also necessary to stipulate cases when each of the parties can cancel the deed of gift. This can happen both at the initiative of the owner and the recipient of the gift.

It is also worth providing the addresses and passport details of both the donor and the recipient. You can also provide contact numbers. We should also not forget about the signatures of the parties. Without them, the deed of gift can very easily be challenged.

Sample agreement for donation of half share of an apartment

A special form of agreement on the gratuitous transfer of property is not established at the legislative level, although it must be drawn up in writing.

Note! Requirements for its content are established at the legislative level:

• time and place of compilation;
• personal data of the parties (information about identity documents);
• object of the agreement (full description of what the deed of gift is being drawn up);
• the value of the gift object is indicated if it is necessary to pay tax;
• signatures of the persons who entered into the agreement (donor and recipient);
• a list of co-owners indicating their shares in the property (if the property is owned by several persons). Moreover, they require written consent to the transaction;
• contract terms that eliminate risks;
• consent to receive property as a gift (otherwise the transaction will not be considered completed).

ATTENTION! Look at the completed example of donating a share in the ownership of an apartment:

Essential terms of the agreement

First of all, this is a description of the part of the apartment that is being transferred free of charge. The size of the share is indicated (1/2, 1/3...).

In addition, the following are prescribed:

• common and living space provided as a gift;
• property address;
• documents confirming the allocation of a share and its registration according to the law.

It is also important to provide the cost of the share based on cadastre data. This figure may in the future become the basis for calculating tax on a gift received, because the notary’s state duty is calculated from it.

One of the essential conditions is the timing of the gift and documentation of this fact. The participants in the gift agreement have the right to agree on other points that are important for both.

For example, it is possible to provide for the responsibility of the donor for the untimely transfer of the gift to the second party.

Rights and obligations of the parties

Although a gift agreement is understood as a gratuitous transaction, each of its participants is endowed with mutual rights and obligations. Thus, the donor must transfer to the other party all the documentation for the apartment regarding the alienated share, as well as the keys to the entrance doors.

The donor may be obligated to vacate the donated premises by a specified date. After all, it often happens that even after the completion of the deed of gift, the former owner will continue to occupy the living space. Therefore, it is advisable to stipulate this nuance in the gift agreement.

The donee may assume the obligation to register the property within the period established by the parties after the completion of the contract. Other obligations for the donee may be specified in the agreement.

Donors, who are they?

We have come to the answer to the question of who can donate a share in an apartment. The owner of the relevant part of the real estate has the right to conclude such a transaction. In this case, the age of the donor does not matter.

In order for a share to become the subject of a gift, it must be determined and confirmed by documents, that is, the property must be in joint ownership (Article 244 of the Civil Code of the Russian Federation).

These include:

• extract from the Unified Register of Real Estate Rights;
• certificate of right of inheritance;
• certificate of common property of the spouses;
• privatization agreement;
• agreement on establishing shares in joint property;
• agreement for the purchase of a share in an apartment.

On behalf of the donor, the contract can be concluded by his representative. To do this, he needs to issue a notarized power of attorney with clearly defined powers. If the deed of gift is made on behalf of the child, then the agreement can be signed on his behalf by the mother or father, as well as the guardian.

Donation agreement

shares in the apartment from son to mother, Moscow, December twenty-four, two thousand and twenty We, Bobrov Anton Andreevich, born February 11, 1991, place of birth: mountains.
Moscow, gender male, passport series 45 11 136481, issued on 01/01/2011 by the Department of the Federal Migration Service of Russia for the city. Moscow in the Maryina Roshcha district, subdivision code 770-081, registered at the address: Moscow, st. Sheremetyevskaya, 1, apt. 1, hereinafter referred to as “The Donor”, ​​on the one hand, and Bobrova Elena Petrovna, born on August 21, 1961, place of birth: mountains. Aktyubinsk Rep. Kazakhstan, gender female, passport series 45 13 319791, issued on September 11, 2013 by the Department of the Federal Migration Service of Russia for the city. Moscow in the Maryina Roshcha district, subdivision code 770-081, registered at the address: Moscow, st. Sheremetyevskaya, 1, apt. 1, hereinafter referred to as the “Donee”, on the other hand

have entered into this agreement of donation of 1/4 (one fourth) share in the right of common shared ownership of an apartment as follows:

1. Donor Anton Andreevich Bobrov transfers as a gift to his mother – Donee Elena Petrovna Bobrova 1/4 (one fourth) share in the right of common shared ownership of an apartment with a total area of ​​56.9 (fifty-six point nine) sq.m., living area 32 .9 (thirty-two point nine) sq.m., consisting of 2 (two) rooms, located at the address: Moscow, Sheremetyevskaya street, building 1, apartment 1.

The donee Elena Petrovna Bobrova, for her part, accepts as a gift from her son - Donor Anton Andreevich Bobrov 1/4 (one fourth) share in the right of common shared ownership of an apartment with a total area of ​​56.9 (fifty-six point nine) sq.m., residential with an area of ​​32.9 (thirty-two point nine) sq.m., consisting of 2 (two) rooms, located at the address: Moscow, Sheremetyevskaya street, building 1, apartment 1.

2. The specified 1/4 (one fourth) share in the right of common shared ownership of the apartment belongs to the Donor by right of ownership on the basis of an agreement for the transfer of ownership of the apartment dated June 1, 1991, certified by a notary of the city of Moscow L.A. Gordeeva. (registered in the register under No. 999), registered in the Department of Privatization and Registration of Property Rights of the Municipal Housing Committee of the Moscow Government on 09.09.1999 under No. 2-1887878, for which a certificate of housing ownership No. 1826333 was issued on June 9, 1999.

3. The donor confirms that he does not enter into this agreement due to a combination of difficult circumstances on extremely unfavorable conditions for himself, and this agreement is not an enslaving deal for him.

4. The right of ownership under this agreement arises with the Donee from the moment of registration of the transfer of ownership.

The transfer of a gift under this agreement is carried out through the delivery of title documents: copies of this gift agreement with registration inscriptions and a certificate of state registration of the right to the name of the Donee.

5. After the transfer of ownership of a share in the apartment, the Donee assumes responsibility for paying real estate taxes, and also operates and repairs the apartment at her own expense, and takes part in the maintenance of the entire house and the surrounding area.

6. The donor guarantees that at the time of signing this agreement, the specified share in the apartment has not been sold to anyone else, has not been given or promised as a gift, has not been mortgaged, has not been seized, is not the subject of a dispute, is free from any rights and claims of third parties and can be alienated owner.

7. At the time of the conclusion of this agreement, the following are registered in the above apartment: Donor Anton Andreevich Bobrov, Elena Petrovna Bobrova, Donee’s husband Andrey Vladimirovich Bobrov born 01.11.1961, Donee’s daughter – Yulia Andreevna Bobrova born 09.09.1999, and also the mother of the Gifted - Kecha Valentina Ivanovna, born 11/11/1941.

8. The parties are aware of the content of Articles 161, 164, 209, 218, 223, 292, 572-575 of the Civil Code of the Russian Federation and Article 17 of the Housing Code of the Russian Federation.

9. The costs of concluding and registering this agreement are paid by the Donee.

10. This agreement is drawn up in three copies, one of which is stored in the Office of the Federal Service for State Registration, Cadastre and Cartography in Moscow, one of which is issued to the parties to this agreement.

Signatures of the parties:

Donor

(full name, signature)

donee

(full name, signature)

Is the consent of other owners required to donate a share in an apartment?

To answer this question, you should familiarize yourself with the contents of Art. 250 of the Civil Code of the Russian Federation, which provides for the pre-emptive right to acquire shares in property by other owners.

In particular, the seller must notify other co-owners of his desire to alienate the share at a certain price. If within a month they do not want to buy the corresponding part in the property or provide a written refusal, the seller can transfer the share in the property to any buyer.

Please note that the law connects the entire algorithm described specifically with the purchase and sale operation. About donation in Art. 250 of the Civil Code of the Russian Federation is out of the question.

Thus, as a general rule, there is no need to ask for consent from the remaining owners to make a deed of gift. The exception is situations when a share in the common property of the spouses is given (which is not allocated). Here, approval from the donor's spouse is necessary.

Donation of a share in a mortgaged apartment

// Contents A person has the right to dispose of property at his own discretion. However, if we are talking about a mortgaged apartment, the borrower is limited in the rights of the owner - donation, sale, inheritance and exchange occur only with the consent of the lender.

Imagine that you want to donate a share in a mortgaged apartment. In part, this means that you will have to negotiate with the bank - it is the bank that owns the collateral in the form of an apartment. This means the donation will differ from the standard procedure.

What exactly? Read about this in our article. Entering into a mortgage means concluding a mortgage agreement with a bank, under the terms of which the lender provides a loan to purchase a home.

The borrower continues to live in the apartment, but undertakes to transfer the rights to the mortgaged property to the bank. Then comes the loan repayment period - all this time the apartment is pledged to the bank. If the borrower has not yet repaid the mortgage, but wants to donate a share, he will have to obtain the consent of the lender ().

We recommend reading: What documents do you need to sell an apartment?

The permission may be specified in the mortgage agreement.

But this happens extremely rarely - it is not profitable for banks to change the loan payer, which means their consent is very rare.

However, in fact, there is no need to worry - even if you have received a refusal to donate a share in a mortgaged apartment, no one forbids you to wait until the loan is repaid.

Immediately after payment of the entire amount, the owner will be able to dispose of the property at his own discretion ().

Thus, if the bank does not allow the alienation of property under a mortgage agreement, donation of a share is possible only when the loan is repaid. Registration of a deed of gift with a current mortgage on an apartment is not an easy procedure.

Before entering into a deal, you need to study your life circumstances. Conditions for donating a share in a mortgaged living space: clause on the possibility of donation during the period of repayment of the mortgage; consent of the donor and the donee (for example, to transfer rights and obligations under a pledge agreement);

Deed of gift for an apartment with a Sberbank mortgage. Is it possible to donate an apartment if it has a mortgage - options for resolving the issue.

Maternity capital: several options for purchasing an apartment with a mortgage

Life is always more inventive than people.

Therefore, it can create situations that can lead to difficulties on the legal side of the issue.

A striking example of this is the registration of a deed of gift for an apartment in a mortgage. Since this type of gift deed is a transaction involving real estate with an encumbrance, the assistance of a qualified lawyer and compliance with certain conditions will be required to draw up a legally correct document. Every person who has taken out a mortgage at least once knows that until the cost of the entire apartment is paid in full, this territory legally belongs to the bank and is the key to the reliability and stability of timely payments.

The only thing a person who has bought a mortgaged apartment can do is register in it themselves and register family members in the living space. And also live in it. Other transactions with this real estate, such as a donation agreement for a mortgaged apartment, the purchase and sale of an object and other transactions are prohibited by the creditor bank. Therefore, it is legally impossible to make a donation without notifying the bank and without obtaining its permission.

Execution of a donation agreement for a mortgaged apartment without the consent of the bank to carry out the procedure is considered invalid. The fact of non-compliance with the agreement with the bank will become known, since there will be a need to re-register residents.

And in such a situation there will be two ways to develop the action:

1. The bank may also demand that mortgage obligations be fulfilled in full. That is, pay off the entire mortgage in a short time. Otherwise, the bank sells the apartment at its own discretion.
2. The bank will go to court and declare the deed of gift for the mortgaged apartment and subsequent changes invalid. Moreover, the court always takes the side of the bank, since mortgage agreements were drawn up taking into account all the nuances and previous experience of working with clients.

From a legal point of view, there are also two options for the owner of an apartment with a mortgage:

Who can you give a share in an apartment to?

The recipient of the gift can be a citizen, either a relative or an outsider. Each transaction has its own characteristics. We will look at them below.

Gifting to close relatives

It is characterized by the fact that you can very quickly collect all the documents for making a deed of gift. Therefore, a gift for loved ones can be issued in a few days.

The agreement of donation of a share of an apartment between close relatives is distinguished by the absence of personal income tax taxation. The recipient of the gift does not pay income tax on it.

It’s a different matter when a deed of gift is made to someone not close to you. In this case, they will be required to include the value of their gift on their annual tax return and pay the appropriate amount of tax.

For minor children

If an agreement to donate an apartment to minor children is concluded, then their parents or guardians can sign it. At the same time, they will act in the interests of the child.

There is one peculiarity. When a child is already 14 years old, he has the right to be present at the transaction.

Agreement for donating a share in an apartment to a minor

To other persons

There are no exceptions to the procedure being performed. A notarial agreement is concluded and then ownership is registered.

However, claims from other co-owners of the apartment may unexpectedly arise. After all, not everyone may want to live with a stranger under the same roof.

Then a claim for recognition of the deed of gift as fictitious cannot be ruled out. Plaintiffs may insist that there was a hidden purchase and sale in violation of the pre-emptive right to acquire a share.

Sample donation agreement for an apartment with a mortgage

The gift of real estate is a fairly common legal transaction. The most common such transaction is the alienation of property between close relatives, since it does not require the payment of income tax.

In practice, the donation of an apartment with an encumbrance is often used as the option most suitable for the parties to the agreement. This type of transfer of property has its own important features; sometimes the deed of gift cannot be formalized until the restrictions are lifted. Encumbrances are restrictions of various forms, which must be documented and binding on the parties.

A legal ban on the disposal of one's property makes it impossible to conduct a gratuitous transaction.

By becoming a new owner, a citizen acquires not only rights, but obligations, including those not fulfilled by the previous owner. The encumbrance must be displayed in Rosreestr, information on limiting the right of disposal is reflected in the Unified State Register of Real Estate. It is indicated by which body and for how long the ban on legal transactions with real estate has been imposed.

The information is freely available and any interested person can obtain an extract from the Unified State Register of Encumbrances. In addition to the obvious encumbrances reflected in the register, the law provides for hidden prohibitions on the disposal of property: a lifelong lease or annuity agreement. Under no circumstances will it be possible to donate real estate owned by a minor or incompetent owner. If, in the case of the purchase and sale of an apartment, the guardianship authorities may positively consider the presented option to improve living conditions, then such a deed of gift cannot be registered in Rosreestr. The gift agreement is a gratuitous transaction and is concluded with the consent of both parties.

It is impossible to issue a deed of gift on the terms of the lifelong residence of the previous owner. Such a clause will make the contract illegitimate, but it is possible to draw up a life annuity contract when, after the death of the owner, the property will pass to the specified

How to correctly draw up a contract for several recipients

In this case, you can conclude one agreement. According to it, several persons will act on the side of the donee. It should indicate the size of the share not only in relation to the donor’s part, but also in terms of the total living space as a whole. There is a nuance regarding the number of required copies.

They are made based on the principal, each of the donees and the Rosreestr body. Registration, as a rule, of all rights to property is carried out simultaneously. In this case, each of the recipients of the gift is given their own extract of ownership.

The nuances of donating different types of apartments

The procedure for registering a deed of gift for a share in housing depends not only on the identity of the donor or recipient of the gift. It matters what legal status the relevant property has.

Mortgage apartment

Donating a share in credit real estate has its own characteristics. Thus, the transaction can only be carried out with the consent of the bank. The procedure for obtaining it is specified in the specific mortgage agreement.

The lender may refuse to approve the transaction. Even if, bypassing this rule, a notary certifies the contract, Rosreestr will refuse to carry out registration actions. And that is not all. The bank has every right to file a claim in court for the invalidity of the deed of gift.

Communal apartment

As a rule, in this type of housing a specific room with its own number is alienated. Therefore, the contract specifies not only the address of the house and the general number of the apartment, but also the parameters of the room.

You should know that when registering a share in a communal apartment, the contract must also include an indication of the share in common areas (kitchen, bathroom). Otherwise, the transaction is completed according to the standard procedure.

Privatized apartment

Here it is implied that the owner of the share already has a predetermined part of the real estate, confirmed by the privatization agreement. This share can be donated on a general basis.

If the apartment is privatized for one person, then you can donate it entirely. In this case, there will be no need for notarization of the agreement.

Not privatized apartment

Initially, a person does not own the housing as a whole, nor a certain part of it. Therefore, before creating a deed of gift, it is necessary to formalize the privatization of housing.

After its completion, you should register ownership of your share. Only then can you think about drawing up a gift agreement in favor of relatives or third parties.

Stage No. 2 – how registration is carried out

A deed of gift for a share in an apartment must go through a registration procedure, and such a document must be signed in the appropriate organization - the Registration Chamber or the MFC.

Registration of gifts in 2021, as in previous years, is signed in the presence of a representative of the institution.

The donation agreement is signed in front of the registrar, because the employee needs to make sure that the participants are adequate and that these actions are not dictated by psychological or physical influence. If the donee is a minor, then one of the parents or a representative must sign. If a minor citizen, then only his parent or representative can sign.

Documents can be processed upon presentation of previously prepared documents. By the way, you need both raspberries and photocopies.

• Passports for both participants. When a child has reached 14 years of age, data from his passport and his parent or guardian are provided. If the person is a minor, i.e. up to 14 years of age, then his birth certificate and the caregiver’s passport are attached.
• Contract for housing as a gift, one copy for each, taking into account that 1 remains in the Registration Chamber.
• If a spouse decides to make an agreement to donate a share in the right of common shared ownership of an apartment to his relative, and the property is joint with his wife, then she should obtain her written consent to these manipulations. Be sure to get your visa signed by a notary. A joint gift from spouses is also allowed.
• If one of the participants cannot be present at the signing, then his representative can be any person with a power of attorney certified by a notary. You will also need the original passport of this representative.
• If the deed of gift goes to a child, then before registration you should obtain permission in writing from the guardianship authorities or a representative of the incapacitated (legally) person. All additional information can be obtained by contacting the registration authority in advance for a certificate.

Under different circumstances, the registering organization may request additional documentation. It is because of this that it is important to consult with a lawyer and obtain information from the institution. Otherwise, you will have to come to registration more than once.

By contacting the consultants on the portal, you will receive complete information on the documents that are needed specifically in your case, as well as other useful advice - for free!

Where to apply and register

We have already noted that the transaction for donating a share in an apartment must be notarized. However, the whole process does not end with the signing of the contract and its certification by a notary. It is also necessary to register the transfer of ownership. You can do this in three ways

Notary

The parties may ask him to register property rights in Rosreestr. In this case, in addition to the state fee, you will have to pay for the work of a notary.

You can then pick up the finished extract from the Unified Real Estate Register from him. The entire procedure in practice takes from three to five days.

MFC

The parties can submit all required documents there. After this, they are sent to the Rosreestr office. An extract of ownership comes from there via the feedback channel.

The procedure takes 5 days. Apart from the state fee, you will not have to bear any expenses.

Rosreestr

From January 1, 2021, rights can be registered at any branch of this body, regardless of where the apartment is located. The parties can come there with documents themselves.

Property registration occurs within 3 working days. After which the new owner of the share is issued an extract confirming his ownership of the property.

Some moments

When drawing up a deed of gift, there are several nuances to consider:

• transfer of property rights occurs free of charge;
• If the recipient of the gift is a minor citizen, then his legal representatives must sign the receipt of the property. Moreover, they must also be specified in the agreement;
• civil servants, incapacitated or minor citizens cannot be donors;
• if the apartment is privatized and one of the owners wants to donate his share, then the permission of the other owners is not needed;
• When accepting a gift, the recipient must give written consent, which is indicated in the agreement.

Watch the video. Donation of an apartment or share in an apartment in 2018:

Cost of registration of donation

Providing a share of an apartment as a gift will require the parties to incur additional expenses. They include state fees, as well as notary fees.

Cost of notary services

First of all, it should be said about the state duty. Since the deed of gift for the share must be notarized, you should pay half a percent of the cost of the share. In this case, the minimum duty is 300 rubles, and the maximum is 20 thousand.

Next, you need to pay for the notary's actions (consultations, preparation of the agreement, costs for forms). Notary fees vary depending on the region and range from 3 to 6 thousand rubles.

Additionally, notary services are paid when registering rights to the donated share in Rosreestr. This is also several thousand rubles plus the state registration fee.

State duty for state registration

According to the law, it is 2 thousand rubles. This amount also includes the preparation of an extract from the Unified State Register of Rights for the new owner of the share.

The fee can be paid after submitting the necessary documents. However, this needs to be done in a short time (within 3 days). Otherwise, the entire submitted package will be returned.

Features of donating a share of a room

A room is part of a living space, and according to Art. 244 of the Civil Code of the Russian Federation is in common ownership, which, in turn, is of two types:

• Joint, where shares are not allocated, real estate belongs to everyone on equal rights;
• Shared - with the allocation of shares by agreement of the owners or in court.

An apartment or house can be divided between the owners in kind, i.e. by allocating them specific premises that belong to them. But this will require the installation of separate inputs and compliance with a number of technical requirements, which is not always possible or advisable. If this leads to disproportionate damage, it will not be possible to allocate a share in kind.

To allocate a share in kind, it is important that the premises meet the established requirements:

• Complete isolation and independence from the rest of the apartment;
• Conducting individual communications;
• Having your own entrance;
• Compliance with sanitary and building standards.

Important! By law, you can donate a share of a room allocated in kind, but you will have to reconstruct the property. It is easier to draw up a deed of gift for a share of ownership, where specific premises are assigned to the owners by verbal agreement.

It is worth considering that a gift implies a gratuitous transfer of ownership of property, therefore the donor has no right to demand money or reciprocal services from the recipient. The gift agreement itself (hereinafter referred to as the DD) is drawn up in writing and must be certified by a notary in this case.

In an ordinary apartment

If the apartment consists of one or more rooms, you can donate a share in the ownership. The consent of the other owners will not be required. The allocation of a share in kind is permitted if this does not lead to the destruction of real estate and disproportionate damage to the owners. In practice, this is problematic to implement.

Example:

The spouses each own ½ share of the right to the apartment. The woman decides to give half of her share to the child. After the transaction, the man retains ½, as before, and the donor’s share is divided in half with the minor.

In a communal apartment

In communal apartments, the number of owners is usually equal to the number of rooms. Often there is a need to register a share for one more person, and this can be done by drawing up a deed of gift.

According to the DD, the room will go to the donee, but he will be able to use the common premises in agreement with the other owners.

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

Documents for donating a share

The whole process takes place in two stages. Each of them requires its own set of documents. First, we’ll tell you what you’ll need to go to a notary.

Here is the list:

1. Text of the agreement (if the parties decided to write it themselves).
2. Passports of the donor and recipient. If a party to the transaction is a person under 14 years of age, his birth certificate will be required.
3. Title documents for the share.
4. Technical passport for the apartment.
5. Certificate about people registered in the living space.

After the notary draws up the deed of gift in three copies, the rights to the share must be registered.

For this you will need:

1. Mutual statement from the parties to the transaction.
2. Personal passports.
3. A copy of the gift agreement in the original.

For registration, the package of documents is the same regardless of where it is submitted. Therefore, the parties to the deed of gift must take this circumstance into account.

Agreement on determining donation shares of an apartment share

Agreement

on the definition of shares and donation of ___ shares of an apartment

City _______, ______________

We, a citizen of the Russian Federation _________________, gender female, ___________ year of birth, place of birth: city ________, passport _________ issued by Passport Office No.___ Department of Internal Affairs _________ district of the city ________ ___________ year, subdivision code __________, registered at the address: ________________________ hereinafter referred to as “Donor” , on the one hand, and a citizen of the Russian Federation ____________________, gender male, ___________ year of birth, place of birth: city _________, passport _________ issued by 36 Police Department of the Department of Internal Affairs “____________” of the Internal Affairs Directorate of the Central Administrative District of the city ________ ___________ year, subdivision code __________, registered at the address: __________________________ hereinafter referred to as the “Done”, on the other hand, as well as a citizen of the Russian Federation __________________, gender male, ______________ year of birth, place of birth: ____________, passport ___________________, issued _____________________________________________________, department code __________, registered at the address: ________________________ have entered into this Agreement on the following : 1. ________________________, ______________________ and _______________________, by mutual agreement, decided to terminate the regime of common joint ownership without determining shares and establish a regime of common shared ownership of the apartment at the address: _____________________________________ 2. _________________________, ________________________ and _____________________ divided the apartment into equal shares of ___ shares of the apartment for each. Common areas shall become the equal common property of the parties. 3. The apartment at the address: ___________________________________, consists of 3 (three) living rooms, the total area of ​​the apartment is ____ sq. m. m., living area ____ sq. m. 4. This apartment belongs to _________________________, _____________________ and _______________________ by right of ownership on the basis of Transfer Agreement No. ____________ dated ____________, registered with the Office of Registration of Rights and Transactions with Residential Premises, Department of Municipal Housing and Housing Policy of the City Government of ________ ____________ for No. _________ and Certificate of ownership of housing No. __________, issued on _________, signed by the Mayor of ___________ - Prime Minister of the Government of _________. 5. The Donor gives, and the Donee accepts as a gift ____ shares of the apartment at the address: ____________________________ 6. After the state registration of this agreement and the transfer of ownership in the Office of the Federal Service for State Registration, Cadastre and Cartography for _________ ___________________ becomes the owner of ____ shares of the above apartment and carries out in relation to ___ shares of the apartment, the entire range of rights and obligations established for homeowners by the legislation of the Russian Federation. 7. At the time of concluding this agreement, the alienated ___ share of the apartment is not the subject of legal proceedings, is not alienated to anyone, is not mortgaged, is not under arrest or prohibition, and there are no other restrictions or encumbrances; __________________________, ______________________ and ________________________ are registered in the apartment. 8. The parties guarantee that this agreement is concluded between them voluntarily, the transaction is not enslaving, and there is no pressure or coercion to sign it. 9. The Donor and the Donee confirm that their legal capacity is not limited, and they are not under guardianship or trusteeship; due to health reasons, they can independently exercise and defend their rights and fulfill their duties, and do not suffer from diseases that prevent them from understanding the essence of the contract being signed and the circumstances of its conclusion. 10. This agreement contains the entire scope of agreements between the parties; any disagreements are resolved by notifying the other party in writing about the substance of the disagreements and drawing up a simple written document on their resolution, voluntarily signed by the parties. In the absence of consent of the parties, disputes under this agreement shall be resolved in court. In everything that is not directly regulated by this agreement, the parties are guided by the legislation of the Russian Federation. The costs of concluding this agreement are borne by the Donee. 11. This agreement and the transfer of ownership are subject to state registration in the Office of the Federal Service for State Registration, Cadastre and Cartography in Moscow. 12. This agreement is drawn up on one sheet of paper in four copies having equal legal force - one copy each for ______________________, _________________________ and ________________________ and one copy for the Office of the Federal Service for State Registration, Cadastre and Cartography for _____________.

Signatures of the parties:

__________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

Do I need an acceptance certificate?

According to the law, the preparation of such a document in relation to the donation of a share in an apartment is not required. However, the parties can sign it on their own initiative and attach it to the deed of gift. This practice is especially common in cases where the moment of signing the share and the provision of the gift differ in time.

If the parties decide to draw up a deed of transfer, then this can be done in any form. You must indicate the number and date of the document, information about the parties, which must coincide with the preamble of the gift agreement.

Further it is written that the donor transferred, and the recipient accepted, a share in the apartment (its description follows). The deed of transfer is completed with the signatures of the parties.

The act of accepting the transfer of a share in an apartment as a gift

Draft agreement for the donation of a share of an apartment in a Sberbank mortgage

According to the Tax Code of the Russian Federation, if an agreement is concluded between strangers, then the amount of tax is calculated at 13% of the value of the property.

When a transaction is carried out between citizens who are related, it is not taxable.

If the recipient wishes to sell the received property earlier than three years after receiving the apartment, then he will be required to pay income tax on the value of the home that exceeds 1 million rubles. As for the state duty, according to the law, the parties pay 2,000 rubles for registration.

An example of donating an apartment taken on a mortgage Yulia Vasilievna took out a mortgage for the apartment and after that she paid it off for a long time.

Attention: transactions of this kind concluded between relatives are not subject to taxation.

Read more about registering a deed of gift for a share in an apartment to relatives in a special article, and we talk about the nuances of taxation of the transaction here.

The law does not oblige the parties to the contract to choose a specific type of registration. At your personal discretion, you can register such a transaction with a notary or at the registration authority by submitting a package of documents through the MFC.

The difference in this type of registration is the amount of state duty paid.

This applies to real estate that is not under an encumbrance. In the case of an apartment purchased with a mortgage, things are different. The law does not directly prohibit the owner of an apartment purchased with a mortgage from alienating it by donation.

Contents: Please note that the borrower’s ability to carry out such transactions must be specified in the loan agreement. Information! If the borrower, when purchasing an apartment, knows that he will sell it, he should include this clause in the loan agreement even before it is signed.

You can find an example or template of a contract below. agreement for donation of a share of an apartment. agreement for donation of a share of an apartment.

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How long does it take to issue a deed of gift?

Everything can be done within two weeks, or even in a shorter time. So, it will take some time to collect the documents necessary for the notary. The entire process usually takes about a week.

The procedure for notarizing the contract itself can be completed in 1-2 days, depending on the technical details. Next, the parties should carry out the process of re-registration of rights to the share in the apartment in the name of the buyer. If you do this directly through the local branch of Rosreestr, then receiving an extract from the Unified Real Estate Register will take 3 business days.

The donor and recipient can also go to the nearest MFC and submit documents for registration of rights there. In this case, everything will take 5 working days.

How much does registration cost?

The state fee for state registration of a deed of gift is 2 thousand rubles. The cost of a lawyer’s services will be approximately 3 thousand rubles. Notary services will cost 3 thousand rubles + 0.2% of the value of the gift, but not more than 50 thousand rubles, technical services - approximately 5 thousand rubles.

For the execution of a gift agreement between strangers, the state duty is calculated depending on the value of the gift:

• the value of the gift is up to 1 million rubles - the state duty is 3 thousand rubles + 0.4% of the transaction amount;
• the value of the gift is from 1 million and 1 ruble to 10 million rubles - the state duty is 7 thousand rubles + 0.2% of the amount that exceeds 1 million rubles;
• the value of the gift is more than 10 million rubles - the state duty is 25 thousand rubles + 0.1% of the amount exceeding 10 million rubles.

Technical support – approximately 5 thousand rubles.

Tax on donation of a share in an apartment

A share in an apartment is also classified as real estate by law. And if so, then receiving it as a gift in some cases is fraught with tax consequences. Their occurrence directly depends on the degree of family relationship between the author of the gift and its recipient.

Close relatives

There are categories of people from the donor’s immediate circle for whom receiving a gift will not result in additional payments to the treasury.

These include:

• spouse;
• parent of the donee (for example, a son wants to give a share in the apartment to his father or mother);
• children of the author of the gift, including adopted ones;
• grandparents and grandchildren;
• brothers, sisters, including step-brothers.

The degree of relationship is checked by a notary when making a transaction. Therefore, it is important to provide documents confirming a close relationship.

To other relatives

If an aunt, say, gave her nephew a share in an apartment, then this will already be subject to taxation. You will have to pay 13% of the cost of the part specified in the contract. Naturally, the owner of the gift will need to file a tax return by the due date.

Failure to submit reports on time will result in penalties. In addition, paying taxes late will incur a penalty.

To a stranger

When a share of an apartment is allocated according to documents, its owner has the right to give it to anyone, even people outside the circle of relatives. When signing such an agreement, the recipient should also be prepared to pay tax on the gift.

It is the same 13% of the amount specified in the contract. If it is not specified, then the tax base is calculated from the market price of part of the property.

Donation of a share in a mortgaged apartment

» » Contents Each homeowner has the right to dispose of it at his own discretion, including donating the entire residential premises or a share thereof.

But is donating a share of a residential property always possible? If we are talking about an apartment purchased with a mortgage that has not yet been repaid, then in this case the borrower is limited in the owner’s right to complete disposal of his property: any alienation is possible only with the consent of the credit institution.

Purchasing a residential property with the help of a mortgage loan means that a citizen has entered into a mortgage agreement with a bank, under the terms of which the lending institution provides the borrower with a loan for the purchase of residential premises. but, according to the terms of mortgage lending, the mortgaged apartment remains pledged to the bank until the loan is fully repaid. That is, the borrower has the right to live in the apartment, but he does not have the right to sell, donate, or inherit it without the bank’s consent. If the borrower nevertheless decides to fully repay the loan obligations, according to , he is obliged to obtain the lender’s consent to alienate part of the residential premises .

Sometimes permission to make a gift is stated directly in the loan agreement, but since it is not profitable for the bank to change the borrower, this happens extremely rarely. Thus, if the agreement does not directly indicate that registration of a gift for a share of an apartment is permitted, and when applying to the bank for permission to registration of a gift agreement was refused, the only way out of this situation will be the full repayment of loan obligations to the bank. In this case, in accordance with, immediately after the owner fully repays the debt to the credit institution, he will receive the right to complete disposal of his property. Rely on the fact that the notary, when drawing up the deed of gift, will not find out about the encumbrance of the residential premises and will not require written permission credit institution is extremely unconstructive.

Is it possible to draw up a deed of donation of an apartment without a notary?

We have already noted above that according to Law No. 218-FZ (Article 42), the agreement on the alienation of a share must be certified by a notary. The legislator provided such amendments specifically to suppress numerous cases of fraud in the real estate market.

If the notarization of the transaction was not carried out, then such an agreement is considered void (invalid). The relevant provisions are spelled out in Part 3 of Article 163 of the Civil Code of the Russian Federation.

Moreover, several categories of persons can file a claim:

• donee;
• donor;
• other participants in shared ownership.

Everything will depend on the terms of the agreement and the composition of its participants. A lawyer will help you draw up the contents of the claim, depending on the circumstances and the relationship of the co-owners.

Donation of a share in a mortgaged apartment

6 Contents Each person disposes of personal property at his own discretion. However, sometimes the will of citizens becomes dependent on third parties.

For example, if the housing is pledged to the bank. This often happens when applying for a mortgage.

possible only with the consent of the lender. The law does not prohibit citizens from alienating collateral property. The rule also applies to part of the residential premises ().

However, there are some nuances here. One of them is the loan term.

Quite often, mortgages are issued for 20–25 years. And not every borrower is able to fulfill their obligations. Sometimes citizens have to sell their homes to pay off debt. After registration of a mortgage, the buyer, i.e., the borrower, becomes the legal owner of the apartment or part of it. However, in fact, the property is pledged to the bank.

The encumbrance remains for the duration of the loan agreement.

Consequently, the owner can no longer dispose of the property independently. The rights and obligations of the parties (lender/borrower) are secured by the relevant agreement.

Data on the presence of restrictions on property are entered into the Unified State Register ().

Donation of collateral property is permitted only with the consent of the creditor. Moreover, the mortgage agreement may provide for a different procedure for the alienation of housing.

Example. Citizen K. decided to donate his part of the apartment to his daughter.

However, housing was purchased with a mortgage. There were two owners of the apartment - the donor and his ex-wife. The loan term expired in 1.5 years.

The amount of debt was insignificant.

The co-owner was not against re-registering part of the apartment for her daughter.

The borrower contacted the bank with a request to issue consent to the transaction. The financial organization made concessions to the debtor. The donor gave his share of the apartment to his daughter.

Loan obligations remained with the borrower.

Donation of a share in an apartment and personal income tax

If we talk about the person who provided the gift, then he does not pay any taxes on the gift deed. Moreover, after registering the transaction with a notary and Rosreestr, the donor is exempt from taxation on part of his real estate (in other words, real estate tax).

It’s a different matter when it comes to the recipient of a share of real estate as a gift. Then the question arises, who is obliged to declare receipt of a share in the apartment in Form 3-NDFL. If the recipient of the gift is not a close relative, he must report it on his annual tax return. It must be submitted by April 30 of the year following the year in which the title was registered.

The exception is when the deadline falls on a date declared a holiday. Then you can submit reports on the first next working day.

The tax itself must be paid before July 15, that is, two months after the deadline for submitting the declaration.

What to include in the contract

The gift agreement must certainly be drawn up in the form of a written document and signed by both parties only in the presence of an employee of the legal registration authority.

The donation agreement must include the following information:

• the subject of the contract, that is, what is amenable to the act of donation;
• detailed passport data of representatives of both parties;
• the exact address of the apartment in which the donated share is located;
• indication of the square meters donated (out of the total footage);
• the floor number of the location of the apartment in the house, as well as the number of floors of the house itself;
• special conditions that may stipulate, for example, the donor’s right to live in the specified apartment until a specific period or until the death of the donor.

It is not necessary to indicate the value of the share transferred as a gift.

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The completed share donation agreement can be signed and registered with the Registration or Cadastral Chamber (there is no difference between these two bodies). The registration period for a deed of gift takes up to 7 days.

It is important to emphasize that the donee must pay income tax, which is 13% of the value of the share of living space according to the cadastral passport, if the donor himself is not a close relative.

Thus, the process of transferring a share in an apartment is quite difficult, as it requires increased awareness of both parties to the agreement. However, with proper preparation and verified actions of the parties to the agreement, its conclusion will be legally competent and will not suffer any unpleasant and inevitable consequences.

What amount should I indicate?

The figure specified in the donation agreement is taken as the basis. However, it often raises doubts among tax authorities. As a result, officials can calculate the payment based on the market value of the share purchased as a gift.

Then the recipient of the property will have to make an additional payment. The approximate size can be determined based on the cadastral value of the entire apartment, divided by the size of the share. In turn, the cadastral value can be found out online based on the specific address of the property.

If the value of the share is not indicated in the gift agreement, the tax office will determine the property tax based on market prices.

Gift form for a share in an apartment

We will not hide that for many people, drawing up a deed of gift can cause certain difficulties. Therefore, we offer to download a standard agreement for the donation of a share in an apartment, universal for any region of the Russian Federation. Naturally, the donor and the donee then have the right to make any amendments and additions to it.

At the same time, the standard - simple form of agreement and the notarial form are slightly different from each other. In the initial version, the parties can be said to draw up a draft agreement.

However, at the stage of its certification, the notary can make his own technical changes to the text of the document. The final version of the transaction will appear with his marks.

Stage No. 1 – how to draw up a gift agreement

The deed of gift must be drawn up in printed form and signed exclusively in front of employees of the organization. Anything else is not permitted.

It is recommended that an agreement for an apartment in 2021 be obtained from an experienced legal specialist, because... he will be able to take into account all the subtleties of the agreement for donating a share in the apartment. After all, if you make a spelling mistake, not to mention a legal one, it will be impossible to register such a document. To order a service, just fill out an application on the website and receive a free consultation.

The text of the document must contain the following information:

1. Transfer of a specific part of the property. Also, the person who makes the gift can transfer both the entire apartment and its share.
2. Data from the passports of both persons. For gifts to children from 14 to 18 years old, not only information about them, but about their parents or guardians is entered. If the age of 14 is not reached, then the data from the birth certificate + information about representatives is indicated.
3. Where is the object for which the part is alienated?
4. How many m² will be transferred. It is necessary to calculate from the total.
5. Information about the floor where the property is located.
6. How many floors are there in an apartment building?
7. Other.

Drawing up a contract for donating a share in an apartment according to the 2021 model may contain specific conditions, such as the fact that the donor will be able to continue to live in the premises for some time. Also, if the donor wants to retain his residence permit, then this must also be reflected. By the way, it is not necessary to write the price of part of the property.

On the site, every visitor can:

Form of agreement for donation of a share of an apartment for a minor

Example of filling out “Sample agreement for donation of a share of an apartment”