When can you refuse?
If the heir does not want to receive the property due by inheritance, then he has the right to refuse it and not enter into the inheritance.
If, according to the law, part of the property (apartment or house) is inherited, the heir can refuse in one of two ways: sell the inherited share or make it a gift to another heir.
Voluntary transfer of a share in favor of another owner
The heir to a share of property has the right to transfer it to other heirs. To transfer, you must issue a deed of gift.
As a rule, in this case, the deed of gift is issued to one of the relatives. The right to own property can be transferred in the process of property privatization.
Transfer of ownership of property to parents
The law provides that the heir has the right to refuse inheritance in favor of close relatives, for example, mother or father.
Such a procedure for transferring inheritance is not uncommon, since parents are considered first-degree relatives, and such a refusal is completely justified.
Refusal in favor of children
Important! The law does not prohibit transferring a share of property in favor of a child under 18 years of age. However, in this case, you need to have an idea of the intricacies of this procedure.
A minor child may be the owner of property, but, having not reached the age of majority, he does not have the right to sign documents and independently represent his interests.
In this case, the rights of the child are represented by a guardian - one of the parents or a close relative authorized by law to fulfill these duties.
Upon divorce
Cases cannot be excluded when one of the spouses, during a divorce, donates his part of the property to the other spouse. In this case, it is necessary to divide the jointly acquired property and then draw up a gift agreement.
A gift agreement is an agreement that indicates the desire of one of the spouses to transfer property to the other as a gift. This document also specifies the conditions for the transfer of property and other agreements regarding the property.
Donating an apartment to a close relative through the MFC.
○ What is a pre-emptive right?
The right of first refusal means that if the owner of a share wants to sell it, he must offer it first to other owners. Only if they refuse to buy can he put the home up for sale.
It follows that if you are planning to sell your part of the apartment, you will have to warn the co-owners in advance about your intention. It is advisable to do this in writing to eliminate the risk of accusations of non-compliance with this condition.
If the relationship with the co-owners is good, they will issue a refusal to purchase without any problems, after which you can calmly begin searching for a buyer. But if there are any difficulties in the relationship, you will have to send a registered letter with an offer to purchase and wait for a response.
If it does not arrive within 30 days from the date of notification, you have the right to sell.
Ways to renounce a share and their implementation
How can an heir refuse a share, for example, in a privatized apartment? Citizens refuse part of the inheritance for various reasons.
Among the most commonly used reasons are:
- desire to improve living conditions for one of the relatives,
- desire to register the property entirely in the name of one family member,
- reluctance to register real estate in your own name.
It is worth noting that if one of the heirs renounces his share, the remaining heirs can privatize the property in the manner prescribed by law. The owner will not be able to perform actions with real estate if restrictions are imposed on registration actions or the property is seized.
How to remove the encumbrance from an apartment on maternity capital.
Cadastral value of an apartment: what does it mean, read here.
How to draw up a power of attorney to manage an apartment, read the link: https://novocom.org/dokumenty/doverennosti/doverennost-na-upravlenie-kvartiroj.html
Donation
The most common way to renounce your share is through donation. The heir has the right to transfer his share of the property to another relative or stranger.
To formalize the transferred share, the consent of the recipient is required. In this case, the share of the property is transferred to the recipient free of charge, and the consent of other owners is not required.
The gift agreement is drawn up in free form and does not require notarization. The property transfer transaction must be registered with Rosreestr, located in the same entity as the donated property.
Attention! To re-register a gifted share, the donor and the donee submit an application to which must be attached:
- 3 copies of the gift agreement,
- a receipt for payment of the state duty (the state duty is paid by the person to whom the property is transferred).
If the person transferring the property is married at the time of transfer of the property, then the written consent of the spouse must also be attached.
Documents can be sent in one of the following ways:
- documents are submitted by a representative of the parties (if there is a notarized power of attorney),
- by mail (the authenticity of the applicants’ signatures is confirmed by a notary),
- through the State Services portal (if you have a digital signature).
If a share of the property was transferred as a gift to a close relative, then the person who received the property as a gift is not required to pay income tax.
If the donor is not a close relative, then the person who received the property as a gift is required to pay income tax in the amount of 13% of the cadastral value of the property.
It is worth noting that according to Art. 575 of the Civil Code of the Russian Federation, the gift of property from a minor is strictly prohibited.
Exchange and sale of shares
The heir to a share in an apartment has the right to sell or exchange it. At the same time, the owners of other shares of this property have priority rights in acquiring this property.
Moreover, before selling his share, the owner is obliged to notify other property owners in writing (Article 205 of the Civil Code of the Russian Federation).
The law allows one month to express your desire to buy a share, as well as to prepare a purchase and sale transaction for other owners. Otherwise, the owner sells his share.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
The owner has the right to sell his share to outsiders if other owners refuse to purchase.
If one of the relatives has expressed a desire to purchase a share, an agreement on the transfer (exchange) of the apartment’s share in the right of common ownership is drawn up in writing.
The transfer of ownership must be registered with Rosreestr. In this case, the same package of documents is provided as when donating a share.
In the case of selling a share of property to third parties, in order to register ownership, it is necessary to prepare written refusals of acquisition by the remaining owners of the shares.
Download the apartment privatization refusal form for free in word format
If among other heirs there are minors, then the share can be sold to third parties only after receiving written consent from the guardian and the guardianship and trusteeship authorities.
Non-participation in privatization
The heir has the right to refuse a share of the property at the stage of preparation for privatization, when the apartment is considered municipal property.
In this case, the heir formalizes consent to privatize the apartment without his participation. This document represents confirmation of the renunciation of the share.
This refusal of privatization is certified by a notary and attached to the documents for privatization.
It is worth noting that in case of abandonment of property at the privatization stage, the alienated share will be divided among other property owners. This share cannot be transferred in favor of another heir. However, at this stage it is possible to conclude an agreement that will indicate the ratio of shares between the owners.
It is worth referring to Art. 7 of the Law “On the privatization of housing stock in the Russian Federation”. It states that minor heirs who have the right to use this property must be included in the privatization agreement.
A minor heir will be excluded from the privatization agreement with the written consent of the guardianship authorities.
ATTENTION! Look at the completed sample refusal to privatize an apartment:
applications for refusal of inheritance free in word format
Refusal of inheritance
If a share of property is received as an inheritance under a will or by law, the heir has the right to refuse, having the refusal certified by a notary.
It is important to note that the law prohibits the refusal of part of the inherited share; the inheritance is alienated in full.
Refusal of inheritance can be issued in favor of another heir, one of the closest relatives, or in favor of all heirs of the property.
ATTENTION! View the completed sample application for renunciation of inheritance:
Watch the video. Refusal from privatization:
○ Advice from a lawyer:
✔ Another shareholder offered to buy his share at a very high price, but we refused. Is it possible to challenge the refusal of a preemptive purchase if the price was previously too high?
This issue is being resolved in court. You need to send a statement of claim indicating the fact of violation of your preemptive right to purchase. It is advisable to attach a purchase offer indicating the transaction price.
✔ We bought a share in the apartment using the pre-emptive right, other shareholders are outraged and demand that the deal be declared invalid. What is the chance that the deal will be canceled and we will have to return the share?
It depends on how much time has passed since the transaction was concluded. Co-owners have the right to challenge it within 3 months. Therefore, if so much time has not passed, the transaction may indeed be cancelled.
Specialist Maria Kuznetsova will talk about waiving the pre-emptive right to purchase in shared ownership.
Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal
If the owner intends to sell his share of the apartment, he will need to correctly observe the pre-emptive right of purchase in relation to the remaining co-shareholders. In turn, the co-owners are also assigned certain obligations - they will need to either agree or waive in writing the pre-emptive right to purchase the share.
How to do this correctly from a legal point of view?
If you are in doubt about what is better: donating or selling a share in the apartment, read our instructions and advice.
Procedure for renouncing a share in a privatized apartment
applications for the provision of information contained in the Unified State Register of Real Estate, free of charge in word format
The law provides only two ways to refuse a share of privatized property. These include donation or sale.
Attention! The procedure for registering a refusal is as follows:
- the heir requests a document confirming the ownership of the privatized property. Ownership is confirmed using an extract from the Unified State Register of Real Estate. This document is requested through the State Services portal or at the registration chamber,
- then the owner draws up a contract of purchase and sale or donation of a share,
- the person purchasing this property registers the agreement with Rosreestr and registers ownership of the property.
After registration, the property becomes the property of the second person.
Download the apartment purchase and sale agreement for free in word format
It is worth noting that the heir has the right to sell the share only if the other owners are promptly notified of the intention to sell and refuse to purchase the share. If this formality is not complied with in full, then other property owners have the right to go to court with a demand to declare the purchase and sale transaction of a share to third parties invalid.
When transferring a share to a close relative (father/mother, spouse, son/daughter), the transaction is not subject to tax. Tax will have to be paid if property is transferred to distant relatives or a stranger. The tax amount will be calculated in accordance with the cadastral value of the property. A certificate of the value of real estate can be obtained from the BTI at the location of the property.
ATTENTION! View the completed sample apartment purchase and sale agreement:
How is the pre-emptive right to purchase a share exercised?
This right must be respected only when several owners own the apartment as common shared property. In this case, the co-owners will have a certain privilege, namely the opportunity to buy out the share being sold before it is offered to outsiders (Art.
250 Civil Code of the Russian Federation). Typically, co-sharers use the right of first refusal in order not to share the common living space with new people unfamiliar to them.
Features of the implementation of the right:
- In order to notify the shareholders of their plans and at the same time offer them the alienated object, the Seller must draw up written notices of the sale of the share . All essential conditions of the property transaction must be described here (size of the alienated object, its value, method of payment, etc.). The paper does not require notarization, although optionally it can be executed and sent to co-shareholders and through a notary.
- To find out exactly who needs to send notifications, the Seller is recommended to contact Rosreestr in advance and obtain an extract from the Unified State Register of Real Estate. This document contains information about all co-shareholders of a particular residential premises. If an individual lives or is registered in the apartment, this does not mean anything - only co-owners have the pre-emptive right to purchase . To obtain an extract, you will need to pay a state fee of 200 rubles, and also, when applying to the institution, have a passport with you.
- The seller is obliged to offer the co-owners to buy out the share on the same terms that he intends to sell in favor of third parties. If the Seller inflates the price of the property for a co-owner, while for an outside Buyer it turns out to be less and more profitable, this will be considered an offense. The same thing will happen if the Seller, for example, refuses to provide an installment plan to a co-owner, and then provides this installment plan to an unrelated Buyer.
- The essential terms of the transaction for the co-owner must be no less favorable than for third-party acquirers. If it subsequently turns out that during the notification of the co-owners the Seller deceived them or kept silent about any important points (the possibility of paying for the share by deferred payment, in installments, etc.), this will become the basis for initiating legal proceedings
How to draw up a gift agreement
Download the donation agreement for a share in the ownership of an apartment for free in word format
When drawing up a gift agreement, you must include the following information:
- donor details,
- details of the recipient of the property share,
- information about the share of property,
- information about the property (address, cadastral number, etc.),
- a document confirming the donor's right to own property,
- information about persons registered in the apartment who are not the owners,
- refusal of third parties to acquire a share,
- information about the absence of encumbrances.
ATTENTION! Look at the completed sample agreement for the donation of a share in the ownership of an apartment:
real estate online for free.
What rights to residential premises are retained?
After the transfer of ownership after the execution of a contract of sale or gift, the former heir is deprived of all rights and obligations associated with ownership of the property. Similar consequences occur after the execution of an exchange agreement.
However, the contract specifies the conditions that the parties must comply with after the transfer of ownership. For example, the donor remains to live in the apartment he donated.
If a person refuses during the privatization procedure, then he has the right to continue living in this territory.
Please note! The right to use an apartment is retained in other cases:
- the person who refused privatization is no longer a member of the family participating in privatization,
- the owner of the apartment has changed.
○ How to challenge a refusal?
When selling a share in violation of the preemptive right of purchase, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him (clause 3 of Article 250 of the Civil Code of the Russian Federation).
Fraud is extremely common in equity transactions. If the refusal was issued in violation of legal norms, the owner has the right to challenge it in court. To do this, you need to submit a statement of claim to declare the refusal invalid. Three months are given for this from the date of the intended notification.
Consequences of giving up a share
After execution of the purchase and sale or donation agreement, another person becomes the owner.
Then the former owner should:
- through the passport office, cancel the registration at the previous address and register in another place,
- vacate the property within the agreed period - remove your belongings.
However, in case of refusal of privatization, the person has the right to reside in this territory. His registration address does not change even after an application to the court. If the apartment is subsequently sold, the purchase and sale transaction will not cancel the residence of the specified person in this living space.
Which is better, a purchase and sale agreement or a gift agreement?
Deadlines
The law determines the deadlines for each stage of the share sale procedure . In particular, the seller of the share is obliged to send an official notice to all co-owners before the sale, and then wait for their decision within 30 days. Failure to respond within this period is understood as a refusal to repurchase the share.
After 30 days, you should go to the notary’s office, present copies of letters, postal receipts for sending letters, and in return receive a certificate, which in the future will serve as proof of sending letters and their receipt by the addressees. Having such a certificate in hand, you can freely sell the share to anyone.
Article 250 of the Civil Code of the Russian Federation gives the right to co-owners to demand the transfer of the rights and obligations of the buyers of the share to them through the court. This procedure will take only 3 months, counting from the date of filing the statement of claim with the corresponding requirement.
For the seller, it does not matter who ultimately becomes the buyer, but a failed third-party buyer may find himself in an unpleasant situation when the court terminates the completed transaction and transfers the right to buy out the share to one of the co-owners.
