Legal education: is it possible to donate an apartment with a registered person?

Is it possible to donate an apartment with a registered person?

The presence of people registered in the apartment is not an obstacle to the gratuitous transfer of ownership through the registration of a deed of gift for the apartment by the sole owner. But it is impossible to donate living space that is the common property of the spouses if the second spouse refuses to sign an agreement on the transfer of ownership rights together with the initiator of the process.

Agreement on donation of an apartment: form, sample filling.

Is it possible to donate an apartment with registered minor children? Living in an apartment for minors, including actual residence, also does not prevent the donor from exercising the right to donate an apartment with a registered child.

A minor owner of real estate does not have the right to gift it to an individual or legal entity, even with the assistance of a guardian.

The gift agreement has legal force if:

• carrying out state registration of the document (in accordance with Article 551, paragraph 1 of the Civil Code of the Russian Federation) - otherwise the alienation of property will be declared invalid;
• the legal capacity and majority of the owner of an apartment or other real estate;
• fulfillment of the condition of absolute voluntary action of the donor in relation to his property.

Having found out whether it is possible to donate an apartment if a minor child is registered in it, you should talk about how to do this.

Is it possible to donate such real estate?

The owner of the apartment has all the rights to it and can dispose of his property as he pleases, unlike people who are simply registered in this house.

Therefore, the presence of other people registered at the address of the apartment that becomes the object of donation cannot become an obstacle to the implementation of the transaction.

But there is one very important nuance here. It is easy to donate property only if you are the sole owner. If the people assigned to the apartment also have rights to living space, then everything is more complicated.

If the home is in common ownership or is considered property acquired jointly during marriage, then you will not be able to fully dispose of it until you receive written permission from all other persons who have property claims to the apartment.

Attention! This applies only to common property, not shared property. You can give your rightful share to anyone you want without asking anyone for permission. But, again, we are talking about your share, and not about the entire apartment.

Article 113 of the Civil Code of the Russian Federation regulates issues directly related to the division of an apartment into shares. According to it, real estate cannot be divided. So, you cannot donate only a specific part of the home.

Despite this, if you only have part of the rights to the object of gift, in some cases the transaction can still be completed. You cannot give a part, but you can give a share. For example, living space can be divided into halves or thirds.

In this case, if you, for example, have rights to a third of the living space, you can donate this third without asking anyone’s permission.

If you can come to an agreement with other share owners, you can even donate a certain room, but you will have to draw up an additional agreement.

Here the question may arise: is property received as a result of a gift considered property acquired jointly during marriage? According to Article 36 of the Civil Code of the Russian Federation, personal property is any property that was received under a gratuitous transaction or before marriage .

So, in these cases, the apartment is considered yours personally and the permission of the second spouse is not required, since personal property is an object owned only by one specific person. But this doesn't always happen.

In the event that, while living in marriage, you jointly invested money and effort into improving living conditions in your home, the property may ultimately become common if the spouse proves that he contributed to its development.

But there are also people who cannot participate in the donation procedure in principle. Article 575 defines several categories of such citizens:

• Employees of organizations related to health care, education or social services.
• Government officials.
• Legal entities that can receive additional profit as a result of a transaction.
• Persons who have not reached the age of majority and persons who, due to their state of health, are considered incompetent. They cannot act even through their legal representatives.

The specifics of legislative regulation in relation to minors are especially interesting.

If the property is transferred to a minor child, then its parents or other legal representatives accept it.

If the child is an orphan, then the guardians must accept the gift. Without their participation, signing an agreement is impossible. But this does not mean that the representatives will get the apartment. They will only dispose of it until the child reaches adulthood.

As for donating real estate on behalf of a minor, it is impossible to carry out such a transaction even with the consent of legal representatives, and even more so without the consent of the child. Although, if a citizen has already reached the age of fourteen, it is permissible if parents or guardians give their permission.

However, as for donating an apartment in which a minor child is registered, this is also not an obstacle to the transaction. The owner can donate his property if other persons, even minors, are registered there. The new owner then has the right to evict the child if he has another place of residence.

How to give?

Instructions on how to donate an apartment with registered people in it:

First, you need to discuss the donation of an apartment with the registered people and with the recipient - you cannot do without their participation, because you will need personal documents. Disclosure can only be avoided if the recipient is a child, whose official papers can be disposed of by one of the parents or guardian.

They contact the BTI to obtain a technical passport and a certificate of the value of the object (the second is necessary for recipients who are not relatives). The second document is required to calculate the amount of 13% tax.

Passport office visit:

1. To obtain an extract about registered citizens.
2. The recipient of the donation document must be familiar with the extract to make sure that the use of the received meters will not be problematic.

Visit a notary:

1. It is not necessary to contact, but a specialist will help you correctly compose the text of the gift document - after all, if an error is made, it can be used to cancel the fact of alienation.
2. It is useful for the owner of the alienated property to talk with a notary in order to understand how realistic the donor’s plans are regarding his position in this apartment.
3. Certification will allow you to obtain an official copy in the future if the original is lost.

Agreement for the donation of an apartment with registered persons: sample.

Contact Rosreestr or the Multifunctional Center (MFC) for details for paying duties and taxes.

To the bank:

• to pay the state fee for registration in Rosreestr;
• to pay 13% tax.

With the collected package of documents and receipts, they visit closest to the location of the object of donation to register the transfer of ownership .

When filling out receipts for paying state fees, be sure to include the full names of the donor and the recipient. If official intermediaries are involved in the process, then the full names of their clients are indicated on the receipt.

Pre-collect a package of documents from:

• certificates of the right to dispose of the donated object;
• technical passport for the object of donation;
• personal documents of the parties that will be indicated in the deed of gift as the donor and the donee, people registered in the apartment;
• power of attorney of a person representing the interests of one of the parties to the transaction;
  and a completed sample power of attorney for donating an apartment.
• house register (for owners of private housing);
• marriage certificates of the donor and marriage partner;
• consent of the donor's spouse to the deed of gift certified by a notary.

How to make a deal?

In order to carry out the procedure of donating living space in which third parties are registered, it is necessary, first, to collect a certain package of documents:

• Passports of the donor, donee and official representatives, if they are involved in the transaction.
• You will also need the passports of the people who are registered in the object of the donation.
• Extract from the passport office about registered citizens.
• A special extract with which you can prove the donor’s right to own the living space. As a rule, this is a certificate from the Unified State Register of Real Estate. It will need to be obtained in advance from the appropriate authority.
• A certificate that will provide information about the amount of the cadastral value of the apartment. This is necessary in order to understand from what amount the income tax is calculated. But even if the transaction occurs between close relatives (in this case no tax is charged), a certificate will still be needed.
• If the interests of one of the parties are represented by a trustee, you will need to present a power of attorney certified by a notary.
• If we are talking not about an apartment, but about a residential building, you will need to take an extract from the house register.
• If the apartment is in common ownership, written permission will be required from all other persons having ownership rights to this property. This consent will need to be certified by a notary.
• For living space that is considered jointly acquired property during marriage, the written consent of the second spouse must be presented. It will also need to be certified by a notary.
• A receipt from the bank, which will prove that you have paid the state fee.
• Three copies of the apartment donation agreement.

It is worth talking separately about the agreement for donating an apartment with the people registered in it. This paper looks like this:

Here you can agree to donate an apartment with registered persons.

This is not a ready-made agreement, but a form. You can print it out and fill it out. The following must be specified in the contract:

How to formalize the donation procedure? To do this you will need to go through the following steps:

1. First, you need to collect all the necessary documents that have already been listed above. But for this you will have to visit some authorities:
2. You will need to visit the passport office to obtain an extract about registered citizens. It is better for the recipient to immediately read this document to make sure that there will be no problems with using the apartment in the future.
3. The Technical Inventory Bureau is visited to order a cadastral assessment of the value of real estate. They also receive a technical passport there.
4. It is not necessary to visit a notary's office, but it is highly recommended. After all, a notary’s signature will significantly increase the legal weight of the document. In addition to the fact that a notary gives more guarantees and helps in drawing up a deed of gift, some documents, as well as their copies, in any case, must be certified.
5. You will need to visit the bank to pay the state fee and receive the corresponding receipt. Any bank branch will do.
6. Next, you need to visit Rosreestr or a multifunctional center along with all the documents, the deed of gift and your opponent.

Rosreestr is the authority where all transactions related to the transfer of property from one hand to another are registered.

And the multifunctional center acts as an intermediary between Rosreestr and the population. It doesn’t matter where you go, but the multifunctional center will be more convenient, because its employees will help you with drawing up an application and collecting documents.

You can familiarize yourself with the nuances of registering a gift agreement through Rosreestr or the MFC on our website.

The nuances of drawing up an agreement with registered people

If the donor plans to remain living in the alienated apartment, the appropriate clause should be included in the deed of gift (but after the death of the donor, his potential heirs may try to contest the deed of gift, pointing out the fact of violation of the condition of the absolute gratuitousness of the donation transaction - Article 572, paragraph 1).

Is it possible to donate an apartment with registered people if it is municipal? You cannot donate a municipal apartment - you must first privatize the housing.

Grounds and conditions for execution of the contract

In order for an agreement to acquire legal force, it is important to comply with the conditions and grounds specified by the legislation of the Russian Federation.:

1. It is mandatory to carry out state registration of the transfer of ownership rights to an apartment (clause 1 of Article 551 of the Civil Code of the Russian Federation). Otherwise, the transaction is declared invalid.
2. Only its owner can donate the premises. He must be of legal age and capable.
3. The donation is made on the basis of voluntariness and legality.
4. If there are several owners, their consent to the transaction is required.
5. If the person registered in the apartment has a disability, donation is permissible only after his or her discharge.
6. If the owner transfers part or all of the living space, but leaves the registered persons, this is indicated in the contract. The clause confirms the right of these citizens to use the donated real estate. Read more about the procedure and risks of registering a deed of gift for a share in an apartment here.
7. Civil servants do not have the right to receive an apartment free of charge.

The legislation of the Russian Federation prohibits the donation of real estate with citizens registered in it if it is municipal property. It must first be privatized.

How much will you have to spend?

Upcoming expenses include expenses for:

• payment of state duty (2000 rubles);
• payment for notary services;
• payment of 13% income tax for recipients who are not close relatives of the donor - the amount of payment is determined from the estimated value of the object received as a gift.

Transaction terms

The rights to the apartment are transferred to the recipient immediately after registration in Rosreestr and delivery of the corresponding supporting paper (if, when drawing up the deed of gift, certain factors for the document to come into force were not indicated, for example, adults, marriage registration).

After the death of the donor, the deed of gift loses its legal force - having received the document in hand, you need to quickly begin the registration process.