Is it necessary to register a gift deed?
The law provides for different types of state registration. In particular, registration of the agreement itself aimed at the sale, lease or donation of real estate, or registration of the transfer of ownership of the property.
The real estate donation agreement itself is not subject to state registration. However, the transfer of ownership of real estate must be registered with Rosreestr, and in some cases it must be certified by a notary before this.
This is necessary when:
- one of the donors is a minor or incompetent;
- real estate is donated by its joint owners.
Note! Real estate cannot be gifted by parents on behalf of children under 14 years of age. The transfer of ownership under the transaction will not be registered, so you don’t even have to try to draw up such an agreement.
Is a gift agreement subject to state registration?
From March 1, 2013, state registration of the gift agreement (hereinafter referred to as DD) was cancelled. Now it is necessary to register the transfer of ownership from the donor to the donee, but the deadline is not established by law. Legally, before registration, the gift belongs to the donor.
To register rights in the Unified State Register of Real Estate, you can contact Rosreestr or the MFC if real estate was donated:
- Apartment;
- Share in ownership;
- House;
- Land plot;
- Unfinished construction projects;
- Buildings, structures.
According to Art. 130 of the Civil Code of the Russian Federation, real estate includes property that cannot be moved without disproportionate damage. If you donate a car or other vehicle, money, or household appliances, you do not need to contact Rosreestr. The recipient can immediately take the equipment or banknotes for himself, and register the car with the traffic police within 10 calendar days after signing the deed of gift.
Form of gift agreement
According to Art. 574 of the Civil Code of the Russian Federation, the donation of real estate is always formalized in writing, and in the future the agreement is transferred to the registrar for re-registration of ownership of the donee.
Important! In some cases, the DD must be certified by a notary: for example, if a share in an apartment is donated, the property of a minor is alienated, or a representative is involved in the transaction by power of attorney. The registrar will not accept documents without a notary's signature.
Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.
Apartment
As in the general case, only the transfer of ownership of an apartment is subject to state registration.
The procedure for drawing up an apartment donation agreement depends on how many owners the property has. The fact is that real estate can be registered as individual ownership, shared ownership, when each participant has a certain share, or as common joint ownership, when the shares are not determined in kind (this happens, for example, if you purchased a home while married, and it doesn’t matter to whom exactly the ownership of the apartment is registered).
The general design procedure is similar, but there are some features:
1. If the real estate is in common shared ownership (for example, there are two shares in an apartment, equally distributed between the owners, and the rights of each are registered in the Unified State Register of Real Estate), then you can donate your part of the apartment without obtaining additional consent from the other shared owners. And it doesn’t matter who the donee is, whether he knows other shared owners or not.
2. If the housing is in common joint ownership of the spouses, it is necessary to obtain the consent of all participants in the process in order to exclude future legal proceedings.
Nuances of the gift agreement
Much will depend on the transferred object. For example, if small gifts, the price of which does not exceed 3 thousand rubles, can be given without drawing up documents - that is, orally, then other transactions require notarial and even state registration. Notarization will be required if the apartment is used by several persons (shared or joint ownership). Consent from each owner is certified by a notary. As a general rule, state registration is mandatory for any real estate transactions.
Thus, an agreement is drawn up between the parties to the transaction, which must be signed by both parties. The absence of a signature means disagreement of the parties, as a result of which there will be no legal consequences. Although, in certain cases, a correctly drafted contract will not incur consequences. Therefore, a promise to give, even if properly executed, is not a guarantee of receiving the gift.
According to the provisions of the Civil Code of the Russian Federation, the gift must necessarily be gratuitous in nature. If the donor receives something in return, the transaction cannot be recognized as a gift agreement.
IMPORTANT !!! It is important for spouses to understand that what they received as a gift is considered personal property and is not subject to further division in the event of a divorce. There are exceptions to this rule: for example, if the second spouse spent his time and money on home renovations.
Property received as a gift is recognized as income, so the recipient will be required to pay 13% of the value of the gift object. Transactions between relatives are not subject to tax. Based on the Family Code of the Russian Federation and established practice, close relatives are always recognized as: parents and children, spouses, brothers and sisters, grandparents. Also, a person who does not have a blood relationship, but is in a trusting mutual relationship with the recipient (for example, a stepfather), can also be recognized as close.
Documents for registration
Registration of the transfer of ownership under a gift agreement in Rosreestr requires the submission of the following package of documents:
1. Donation agreement - 3 copies.
2. Application for state registration of transfer of ownership.
3. Notarized power of attorney for a representative, if you are acting through a representative.
4. Certificate of state registration of ownership, if it was issued (this document was issued only until July 15, 2016), or an extract from the Unified State Register of Real Estate.
5. Passports of the parties to the agreement.
6. Other documents if necessary. For example, a spouse’s consent to donate an apartment that is in common ownership (notarial).
The procedure for registering a gift of real estate through the MFC or in Rosreestr
The procedure for state registration of rights in Rosreestr is regulated by Art. 13 Federal Law No. 122. It is universal. If an interested person applies to the MFC, all registration stages and actions are preserved, but the applicant takes part in them through an “intermediary” represented by a center employee.
State registration of the transfer of ownership in connection with a gift is possible if the previously arisen ownership right has already been registered .
Procedure
The package of documents provided by the donation parties passes the following milestones:
- acceptance of an application for registration in the Unified State Register of transfer of ownership rights (one document signed by both parties) and attached documents;
- legal expertise;
- establishing the absence of contradictions between the declared and already recorded rights;
- checking the absence of encumbrances preventing alienation;
- making a record in the Unified State Register of the transfer of ownership rights to the donee;
- making confirmation inscriptions on deeds of gift;
- return of deeds of gift to the parties with marks and issuance of certificates of state registration.
The total period for carrying out the procedures is 10 working days from the moment the parties submit the complete package of documents. If the deed of gift as a whole is notarized (we are not talking about certification of signatures), this period is reduced to 3 working days . If a notary has submitted documents on a transaction certified by him for state registration in electronic form, the transfer of rights is subject to state registration during the working day following the day of receipt of the package of electronic documentation.
Required documents
The list of papers for state registration needs to be clarified, since there are many special cases. For example, state registration of the transfer of ownership of residential real estate to an individual is carried out on the basis of:
- applications for state registration of the transfer of ownership rights to the donor;
- passport or other identity document of the donor;
- receipts for payment of state duty 2 thousand rubles. or the original document giving the right to exemption from its payment under Art. 333.35 Tax Code of the Russian Federation (Tax Code of the Russian Federation);
- a power of attorney or other document on the authority of the representative to carry out state registration and/or sign a deed of gift (if representation took place);
- the original title document for the donated property to confirm the donor’s ownership rights;
- deed of gift in two, or better yet, in triplicate;
- a cadastral passport issued after 03/01/08, or a technical passport issued before the specified date;
- notarized consent of the spouse to donate common property (if necessary) or a document certifying that the gift is the personal property of the donor;
- other written consents, if required (for example, from the guardianship authority, parents).
Registration of deed of gift through MFC
MFC (“My Documents”) redirect documents to Rosreestr, rather than register them themselves, so the registration period in this case is a little longer (increases by 2 business days). However, in some regions Rosreestr does not accept documents directly. Then register online or contact the MFC.
It is important to consider the following rules:
1. Both parties must appear with a pre-assembled package of documents.
2. Don’t forget to pay the state fee in advance. Although it is not necessary to present a receipt, payment will be verified.
3. Before choosing a territorial department of the MFC, you should make sure that the service you need is provided there.
4. After the legally established period for registering the rights to the recipient has expired, you need to come to the MFC and receive a gift agreement, which already has a mark on the registration in Rosreestr, as well as other documents, in particular an extract from the Unified State Register.
Registration of rights under a gift agreement
A gift agreement is regarded by many as a form by which real estate can be transferred in the most simplified manner. However, this opinion is not entirely correct, given that the deed of gift is subject to registration in accordance with Article 131 of the Civil Code of the Russian Federation and, accordingly, it is necessary not only to prepare a package of documents, but also to comply with a number of requirements for the content of the deed of gift.
Thus, the procedure for donating real estate is determined by the norms of Chapter 32 of the Civil Code of the Russian Federation. By virtue of Article 572 of the Civil Code of the Russian Federation, one of the main principles of the transfer of real estate under a contract is gratuitousness. That is, the donor does not have the right to reflect in the act conditions that imply remuneration for the gift presented.
Moreover, in addition to the specified condition, the document must meet other requirements, in particular:
- include a clear definition of the object of donation, that is, an apartment located at a specific address;
- reflect the timing of the transfer of the gift, immediately or immediately upon reaching a certain age by the recipient, for example, 18 years, which is permitted by law;
- contain complete passport data of the parties;
- not have conditions that imply the transfer of the apartment after the death of the donor.
If the agreed conditions are not taken into account when drawing up the deed of gift, registration of the apartment donation agreement will be refused.
Important! Drawing up a deed of gift in full compliance with civil law will avoid litigation with dissatisfied relatives of the donor. If the document is drawn up correctly, the deed of gift is almost impossible to cancel.
Registration of a share donation agreement
Previously, according to the requirements of the law, all transactions that involved the transfer of ownership of real estate had to be notarized. This rule was introduced to verify the transparency of the transaction, as well as to draw up an agreement in full compliance with the law. However, the services of notary offices entailed additional costs, which is why the obligation to certify was abolished.
Currently, registration of a gift agreement with a notary is not required, and the donor has the right to draw up the document independently, taking into account the requirements specified in Article 160 of the Civil Code of the Russian Federation and Article 574 of the Civil Code of the Russian Federation. So, in pursuance of Part 1 of Article 574 of the Civil Code of the Russian Federation, a deed of gift is drawn up in simple written form in 3 copies, that is, according to the number of parties involved in legal relations of this type and taking into account the transfer of one copy for registration.
In this case, the form must be signed by the parties personally, with the exception of certain situations established by Part 3 of Article 160 of the Civil Code of the Russian Federation. That is, if for some reason the donor cannot sign on his own, he can involve another person, but the citizen’s signature must be certified by a notary.
However, these rules on drawing up a deed of gift without a notary only apply to the transfer of ownership of housing in full. If the donor presents only part of the residential premises, certification of the deed of gift by a notary is required in accordance with Part 1 of Article 42 of Federal Law No. 218. However, there is an exception to this rule. From May 1, 2019, there is no need to engage a notary if all shares of an apartment are alienated at the same time.
