Essential terms of the gift agreement in 2021

A gift agreement, according to Article 572 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), is a transaction in which there is a gratuitous transfer of rights or things to another person . The donor has the right to release the person receiving the gift (the donee) from property obligations. Based on Art. 574 of the Civil Code of the Russian Federation, the contract is concluded orally or in simple written form. It is permissible for the parties to contact a notary to certify the document.

Important

If the contract is drawn up in violation of the rules of Art. 572 or 574 of the Civil Code of the Russian Federation, it is considered invalid. In particular, it cannot be made orally if the donor is an organization and the value of the gift exceeds three thousand rubles . The written form is also used when promising a gift.

The conditions specified in the document are divided into three groups:

random;
additional;
significant.

The last two are mandatory , and the conditions included in them are fulfilled, even if they were not included in the contract. For example, if the contract period is not specified, the default is that the donation should occur immediately after signing the document.

Is it possible to specify the conditions in the gift agreement?

You can specify the conditions in the gift agreement (hereinafter referred to as the DD), but not all of them and not always. If the terms mean the transfer of a gift only after the death of the donor, this is prohibited by the provisions of Art. 572 of the Civil Code of the Russian Federation: instead of a deed of gift, you need to make a will. In addition, the owner does not have the right to demand money or services from the donee as a counter-obligation: donation is an exclusively gratuitous transaction.

In this case, conditions mean clauses of the contract that affect the specifics of the transaction. They can be essential or additional. Let's look at everything in detail.

Essential terms of the gift agreement

According to Art. 432 of the Civil Code of the Russian Federation, the mandatory (essential) conditions of the DD mean the indication of information about the subject of the transaction - a gift. If real estate is being donated (apartment, share in ownership, residential building, commercial building), you must indicate:

location address;
square;
cadastral number;
date of origin of the donor's property rights, grounds;
number of rooms;
number of storeys;
date of commissioning of the facility.

If a vehicle is given as a gift, the make, model, license plate number, production date, body number, and color must be indicated. When donating money, the amount and currency are enough.

Important! Essential conditions are agreed upon by the parties before signing the deed of gift. If the recipient does not agree with them, he has the right to refuse the transaction before receiving the gift.

Additional terms of the gift agreement

The list of additional conditions that the parties can include in the DD is a little wider:

Duration of the contract. If it is not specified, the contract is considered real, execution begins from the moment of signing. If desired, the donor can draw up a contract of promise of gift that defers execution. Under it, property is transferred upon the occurrence of a specific date or event.
Inheritance of a promised gift. Unless otherwise provided in the DD, when a gift is promised, in the event of the death of the donor, the gift must be transferred. If the donee dies and the DD provides for the transfer of the gift to his heirs, the donor is obliged to fulfill the requirement (Article 581 of the Civil Code of the Russian Federation). In the absence of such a condition, the rights of the donee are not inherited.
Accommodation of the donor in the donated apartment. If the donee is satisfied with this, the condition is included in the DD.
Possibility of cancellation of DD by the donor in the event of the death of the donee.

Also, in the deed of gift, you can indicate the period for the donor to vacate the donated living space and other conditions that do not contradict the law, having previously agreed on everything.

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What to do if the donor demands the return of the donated property

Under Article 577 of the Civil Code of the Russian Federation, in the event of events that imply a worsening of the donor’s life circumstances, he has the right to cancel the gift agreement, which was drawn up with the condition of transferring the gift in the future, but in court. In turn, the recipient has every right to protect his interests. After all, Article 56 of the Code of Civil Procedure of the Russian Federation states that each of the parties must substantiate its objections and present evidence to which it refers.

At the same time, legislators have not defined the criteria on the basis of which a significant aggravation of life circumstances can be traced. Therefore, the same birth of a child and an increase in expenses for its maintenance by the donor cannot always serve as a basis for canceling the deed of gift, unless the donor proves that his expenses conditionally exceed his income, which significantly reduces his previous standard of living.

The donee, in order to avoid the loss of the donated property, must carefully prepare for the court hearing. For example, to prove that the donor had three apartments, the donation of one of them, even with the subsequent dissolution of the marriage and division of property, did not leave him without housing and means of subsistence. When a donor acquires group 3 disability, one can refer to the fact that a 30% loss of ability to work did not deprive the donor of the opportunity to receive a permanent income and continue working.

What can you give under a gift agreement?

According to the DD, any gift belonging to the donor is given: a house, apartment, land, share in the authorized capital, money, shares and other property. But everywhere there are features regarding the terms of the transaction depending on what is being given:

Real estate. If it was purchased during marriage and is jointly owned by the spouses, the alienation will require the notarized consent of the donor’s spouse (Article 35 of the RF IC);
Share in LLC. The legislation does not oblige the consent of the remaining owners to alienate a share in the authorized capital, but if this is provided for in the Charter, they will have to obtain it;
Vehicle. According to the law, it is not necessary to draw up a written DD, but in this case it will be required: traffic police officers will ask the recipient to submit it when registering the car.

There is also a condition regarding the gift of real estate between spouses. If it was purchased before the marriage was registered or a marriage contract was concluded between the parties, according to which the donated property belongs exclusively to the donor, there will be no problems. The situation looks different when one spouse wants to give the other a shared apartment. According to the law, it is in joint ownership without allocation of shares, formally it is 50/50 for everyone. You will have to allocate shares, and only after that enter into a DD.

The procedure for registering a gift agreement through the MFC or in Rosreestr

What can be the subject of a gift agreement?

In what cases is the transfer of an apartment prohibited?

An apartment cannot be donated if it is secured , but it is possible to donate housing purchased with a mortgage, regular payments for which are effective.

In this case, together with the real estate, the donee must accept the terms of payment of the mortgage or the payment must be stated in a separate paragraph and contain information about the conditions for fulfilling the terms of lending by one of the parties to the agreement.

In this case, the gift agreement is drawn up only with the participation of a notary and a representative of the creditor company must be present at the transaction.

According to Art. 575 of the Civil Code of the Russian Federation, a gift agreement cannot be executed by persons who have not reached the age of majority or by citizens declared incompetent.

Attention!!! The property of minors cannot be donated even by trustees, parents or representatives of guardianship services - this is prohibited by law.

Procedure for drawing up a donation agreement

The donation is made orally if movable property is donated. The transaction is considered completed at the moment of transfer of the gift, keys or title documents to it.

If desired, the parties can draw up a written DD by following several steps:

Negotiating the terms of the deal. It is important that they suit both parties.
Signing the deed of gift. If a notarial form is not required, it is enough to draw up an agreement and sign it for two parties - the donor and the donee.

Further actions depend on the subject of the donation. If real estate is received as a gift, the parties must submit documents to register the transfer of ownership to Rosreestr. When donating a vehicle, the recipient must contact the traffic police to register it within 10 days after the transaction is concluded.

Contents and sample of a gift agreement

In terms of content, the DD must include basic and additional conditions (if any), and all information about the transaction:

Full name, passport details of the parties;
date of conclusion;
start date of execution (transfer of ownership);
information about the item - gift;
terms of change or termination;
rights and obligations of the parties.

At the end, the participants in the transaction sign. As a result, everyone should have one copy left. If the DD needs to be submitted to Rosreestr or the State Traffic Safety Inspectorate, you will need a copy for the department.

Sample real estate donation agreement:

Consultation on document preparation

Documentation

Parties are required to provide passports. When donating community property, the consent of the donor's spouse will be required. If a minor is involved in the transaction, it is made with the consent of the parents.

You will also need a document confirming the basis of the donor's ownership rights: a purchase and sale agreement, a gift, an exchange, a certificate of inheritance.

If real estate is donated, the donor provides an extract from the Unified State Register of Real Estate, and sometimes a cadastral passport and technical documents. When donating a car, you will need STS and PTS.

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What is needed to draw up a deed of gift for an apartment?

All documents are prepared through a notary . now a requirement and provides many benefits. This service requires a small fee, but it is profitable. also requires mandatory registration in the State Register .

Let's find out what documents are needed to draw up a deed of gift for an apartment:

Passports of both parties.
Marriage certificate if required.
Certificate of absence of debt on rent taxes.
To receive it, you need to make a request to the Federal Tax Service. Sample request to the tax office regarding the absence of debt.
A notarized certificate confirming that you are not married.
Decision of the guardianship and trusteeship authorities.
Documents confirming ownership (rent agreement, investment agreement, etc.)
Estimated value and cadastral passport.
Extract from the unified state register.
Sample extract from the Unified State Register.
Extract from the house register about those living in the apartment.
Extract form from the house register and application form for receipt.

Payment for all services for registration of a transaction is 5,000 rubles and state duty . No tax is required if both parties are related.

If you want to draw up a gift deed yourself, then you will need to register it with the Federal Registration Service at your place of residence. (Article 574 of the Civil Code of the Russian Federation)

Let's find out what you need to make a deed of gift for an apartment yourself:

passports and gift agreement;
confirmation of ownership;
certificate of residents;
Certificate of registration in form No. 9.
certified power of attorney by a notary;
Power of attorney for deed of gift: form and example of completion.
permission of guardianship.

Challenging a gift agreement

The absence of essential conditions in the DD is grounds for challenging the transaction, because the document violates the requirements of the law (Article 168 of the Civil Code of the Russian Federation). There are other grounds on which a court can declare an agreement invalid (Article 578 of the Civil Code of the Russian Federation):

death of the donee before the donor (if cancellation is provided for);
harm to health, death of the donor through the fault of the donee;
an imaginary transaction concluded to cover up another transaction: sale, barter;
sham transaction - signing a contract without the purpose of creating further legal consequences (transfer of a gift).

The right of cancellation is granted to third parties - creditors, if the donor participated in the bankruptcy procedure and the gift was purchased with money from business activities. The DD is canceled within six months after the court decision declaring a citizen insolvent enters into legal force.

Arbitrage practice

It is difficult to cancel a deed of gift, but failure to comply with the required conditions simplifies this procedure. In most cases, the courts refuse to satisfy the demands, but sometimes people manage to get the deal annulled and the property returned:

Decision No. 2-4547/2018 2-4547/2018~M-3264/2018 M-3264/2018 dated October 10, 2021 in case No. 2-4547/2018.
Decision No. 2-1307/2019 2-1307/2019~M-1176/2019 M-1176/2019 dated July 8, 2021 in case No. 2-1307/2019.
Decision No. 2-55/2019 2-55/2019(2-775/2018;)~M-675/2018 2-775/2018 M-675/2018 dated June 17, 2021 in case No. 2-55/2019 .

On average, proceedings last for 2-3 months, but the time frame may be delayed if the proceedings are suspended by the court and in other situations for 1-2 years. After the decision is entered into, the parties return to their original position, and the property is transferred to the plaintiff.

Lawyer's answers to frequently asked questions

Can I specify the recipient's care of me as a condition of the gift?

No. Rent rates apply to such situations (Chapter 33 of the Civil Code of the Russian Federation).

Is it possible to specify a condition on the equal distribution of expenses for paying the state duty for registering ownership of real estate?

Yes. As a standard, the state duty for Rosreestr is paid by the recipients, but the costs can be distributed in equal shares.

Can the donor oblige the donee to sign the deed of gift in the presence of a notary and indicate such a condition in the contract if certification is not required by law?

Oblige - no. Notarization is carried out by law or by mutual agreement of the parties.

Is it possible to draw up a deed of gift for a child, giving him his share of common property, provided that the mother does not demand alimony?

No, donation has nothing to do with alimony obligations. For this purpose, an agreement on the payment of alimony is drawn up (Article 104 of the RF IC).

Is it possible to donate a residential building provided that the land on which it is located remains the property of the donor?

No. According to Art. 35 of the Land Code of the Russian Federation, alienation of a house is allowed only simultaneously with a land plot.

What information is included in the document?

The deed of gift for an apartment must include the following information :

place and time of the transaction;
passport data of representatives of both parties, as well as SNILS;
the place where the apartment is located and its technical data;
information that the donor has the right to dispose of this property;
consent of the recipient or his representatives to receive an apartment as a gift;
additional terms of the contract that should not represent a material benefit for the donor;
signatures of all participants in the agreement.