Deed of gift with an encumbrance on an apartment - what encumbrances are possible and what is prohibited

Updated: January 9, 2021, at 20:57

It is difficult for ordinary people to carry out various transactions involving real estate. After all, there are many nuances that must be taken into account. By law, each such agreement must be documented. There is no simple thing: “gave one, received another . Even relatives must draw up agreements among themselves. How to draw up a deed of gift of real estate with an encumbrance, how difficult is it? And what the concept of “encumbrance” is is worth understanding in detail.

Pledge to a trusted person

For any type of real estate (apartment, garage, room, etc.) you can issue a burden of any type. Some owners register relatives there to reduce the risk of losing their apartment.

This is a typical transaction - the transfer of collateral to a person whom the owner trusts. Typically this person is the citizen's child or his parent. The owner needs to discuss in advance the option of selling such an apartment “with a bonus” – to the mortgagee.

Notaries provide registration services; it is enough to submit documents and obtain the consent of the person chosen as a proxy.

Rent

The gift can be constituted in the form of an ordinary annuity. Then a separate agreement is concluded with the owner, which will spell out his right to lifelong maintenance . It turns out that the donee will take the property with a “tenant”, whom he will be obliged to provide for later.

The recipient will become the full owner after the death of the donor. Until the rent is withdrawn, the payer cannot freely dispose of the property. Only within the framework of a previously concluded agreement.

How to correctly draw up a deed of gift for an apartment - here, to donate a house - here.

In practice, people use this method when they need to help lonely elderly relatives living separately. A nephew, cousin, grandson or other person related to the owner of the apartment by family ties becomes the rent payer.

He will take care of an elderly relative, living together in the same living space, which he will receive later. However, the owners have the right to choose any person , not necessarily a family member.

When is the burden imposed?

A gift agreement can also be concluded when encumbering an apartment, but only in the following cases:

In most cases, a mortgage loan acts as an encumbrance on an apartment. Rent is the rarest encumbrance option .

Mortgage

A typical type of encumbrance is a mortgage or consumer loan. Most banks take the living space purchased by the client as the main collateral. This helps reduce risks and protect yourself from possible financial losses. Moreover, the debtor has the right to use the real estate, the only difference is that there will be a burden on the apartment , it is documented.

The recipient to whom the owner wishes to transfer such living space needs to clarify what obligations the donor has to the bank.

Instead of two parties, three parties are involved in the transaction: the donor, the donee and the third - the bank. You cannot transfer the apartment to another person without the consent of the lender.

The financial institution must check the recipient’s solvency, because he will continue to repay the loan.

The situation can be simplified if the donor pays off the balance of the debt before drawing up the deed of gift. Or he will do it later, having discussed the terms with the lender.

Another option is possible - the property acquires a new owner, and the old one continues to pay the mortgage.

Registration of a gift agreement

A real estate donation agreement must be in writing. It is necessary to draw up a document that specifies the parties and the subject of the transaction, the rights and obligations of the parties.

Important! The contract cannot include a section on the amount and method of payment. No other financial requirements are allowed. In this case, the contract will be declared invalid, since the donation implies a gratuitous transaction.

You can donate it and fill it out yourself. But it is safer to use the services of a notary. According to Art. 574 of the Civil Code of the Russian Federation, all real estate transactions are subject to state registration. Giving is no exception. In this case, the agreement and documents are submitted to Rosreestr, where the transfer of rights to the apartment to another owner is registered.

Strangers are registered there

type of burden often occurs - other people are already registered in the apartment. According to the law, the situation is not considered difficult, because there is only one full owner, no matter who he allowed to register. And after signing the deed of gift, the donee will become the new owner.

However, those people can cause a lot of problems in the future. Especially when they live in that apartment and have no intention of leaving it. You can avoid difficulties if you study in advance the nuances associated with the object of the transaction. And discuss future actions of third parties after the transfer of real estate.

Trust management

A type of agreement in which the owner himself gives the living space to another person for full disposal for a specified period of time. By law, the maximum duration of trust management is 5 years , and the transaction must be registered. The owner pays off his debts on his own, without shifting them onto the shoulders of the person to whom he temporarily transfers the apartment.

If such a transaction was formalized through a notary, it does not deprive the owner of the right to donate living space. The only thing is that the donor is obliged to notify the other party about the presence of a temporary owner. And take into account the management period.

Who is eligible?

Whoever directs his claims towards real estate, this is not an obstacle for the owner in terms of transferring rights.

Be that as it may, the owner still remains the owner, which means that he has the right to dispose of the property at his own discretion (Article 572 of the Civil Code of the Russian Federation). However, this does not mean that these claims will cease.

The mandatory conditions for the transaction are as follows:

• property owned;
• sanity of participants;
• consent of the potential recipient when fully informed of all details;
• correct drafting of the document.

If you are to receive such a gift, it is better to discuss all the conditions in advance in the presence of an experienced lawyer.

You can learn about the procedure for donating living space, in particular how to correctly write a deed of gift and whether you need to obtain the consent of your spouse, from our articles. A sample power of attorney for the transfer of real estate as a gift can also be downloaded on our website.

Rent

Wanting to make money, many citizens rent out real estate to other people, charging a monthly fee for living. However, this type of income can become a significant obstacle if the owner decides to donate living space.

Then the lease agreement will be an encumbrance and the transaction must be completed taking into account this circumstance. You can't just kick the tenants out.

The recipient has nothing to fear; residents cannot encroach on the rights of the owner of the property. They only occupy the apartment temporarily. And the donee will have to wait until the end of the lease.

Rent

One type of annuity relationship is lifelong maintenance with dependents. Its essence lies in the fact that the owner transfers his property to a third party, who in return maintains him and provides him with housing. Providing housing, most often, is expressed in the fact that the recipient of the rent can live in the transferred apartment for life.

The rental agreement is certified by a notary, after which it goes through the state registration procedure, about which a corresponding entry is made in the Unified State Register of Real Estate.

Such an apartment can be donated or otherwise disposed of only with the consent of the rent recipient. An important point is that in the event of alienation of housing with such an encumbrance, the obligation to support the dependent passes to the new owner.

In the deed of gift, it is also necessary to state on a separate line the condition regarding the existence of such an encumbrance.

In such an agreement for the donee, however, there are more disadvantages than advantages:

• the donee will be obliged to support the tenant for life;
• the apartment is pledged to the owner, and if obligations under the contract are violated (delayed payments, non-payment for treatment, etc.), it can be repossessed;
• all further actions with real estate are allowed only with the consent of the dependent;
• real estate changes hands with a dependent who has the right to reside there permanently.

The difference between a gift with the right of lifelong residence and maintenance with dependency (annuity)

When the subject of the transaction is the donor’s only home, he should think about his own future in advance. After all, after completing the bureaucratic procedures, the apartment will be transferred to another person. You cannot rely only on good family or friendly relationships.

Lawyers advise documenting everything, writing down each item in detail. Often the former owners lost everything as soon as the deed of gift was registered.

What does a gift with the right of lifelong residence provide:

1. The donor retains the status of owner and remains to live in his apartment. The residence is indefinite and will end only with the death of the person.

2. Maintains registration.

3. Can safely use all utilities without paying for them.

4. If the donee suddenly violates the terms of the agreement, the donor has the right to terminate the transaction.

All this must be indicated in the text of the contract and the direct consent of the other party must be obtained. Mention what premises he has the right to dispose of and whether third parties can be allowed in. List all the recipient's obligations regarding utility payments.

The downside is that the right of residence only provides the opportunity to stay in the donated living space. Moreover, the donee should not provide financial support for the former owner. He, having become the new owner, acquires all rights.

For example, moving in other people, selling housing or renting out real estate. Also donate property to a third party. The only thing is that the donee only needs to take into account the presence of a permanent resident. This right will remain unchanged.

It doesn’t matter whether the living space will be donated, rented to someone or sold.

Dependency is an annuity contract. This is a common deal in Europe. Rentiers can live peacefully, receiving a monthly income. Moreover, they are not always elderly people. There are no age restrictions for concluding such transactions.

What does dependency (annuity) provide:

1. The owner gives the property to another person. In return, the recipient undertakes to provide for it.

2. Such an agreement is considered an annuity, not a gift. After all, it excludes gratuitousness.

3. The rent payer does not immediately acquire the right to dispose of the subject of the agreement. The apartment will be his after the death of the legal owner. It is prohibited to conduct legal transactions with housing if the owner is against it. An alternative option is that the recipient gives his ward another property in exchange for living.

The type of dependency must be specified in advance in the agreement. Will it be payment of a certain amount every month, clothing assistance or full maintenance - paying off all bills, satisfying the needs of the rentier. To avoid disputes between the parties later, it is necessary to describe in detail the responsibilities of each participant. Down to the smallest detail, including the monthly cost. It’s easier to indicate not full dependency, but a specific amount. Let the rent payer transfer it. The property will be jointly acquired and will be transferred to the payer “by inheritance” when the legal owner dies.

Donation and residence of the donor

A donation is a transaction as a result of which the ownership of property is transferred in full from the donor to the donee. Subsequently, the donee acquires administrative rights regarding the gift. In cases where this is residential real estate, the donor can protect himself by securing the right of indefinite or lifelong residence in the premises that are the subject of the agreement. This right will remain with him even if the donee intends to sell the home.

Such a right can be stipulated in a separate clause in the gift agreement. The presence of such a clause in the contract raises the issue of remuneration of the deed of gift, which, according to paragraph. 2 p. 1 art. 572 of the Civil Code, makes the gift agreement void. But in the form of a counter-representation, which makes the deed of gift compensated, the transfer of a thing, property, right, or the occurrence of a property obligation on the part of the donee is presented. The donor’s right of residence in the apartment is intangible, therefore it does not indicate compensation; a gift with such a condition is valid.

It is also a mistake to assume that the donor’s right to live in the housing violates the recipient’s administrative rights. Allegedly, the presence of a lifelong tenant in the apartment does not allow the apartment to be sold or exchanged. Indeed, the presence of such an encumbrance significantly reduces the market value of such housing and narrows the circle of potential buyers. But formally, the recipient’s administrative rights are not limited or prohibited from selling the apartment, which also excludes the possibility of violation.

Pros and cons of a deed of gift with an encumbrance

Depends on the type of burden. Important advice - before executing the transaction, the recipient should thoroughly find out the type of encumbrance and possible prospects.

With the burden of lifelong residence

Donation of an apartment with a mortgage to the recipient

Donation with other encumbrances - what are the prospects for the recipient?

Burden always complicates the procedure. It doesn't matter what it is.

Donating an apartment with registered people

This is another type of encumbrance in which certain people have registration in the territory of the transferred apartment. Despite the fact that legally this situation does not pose a problem due to the transfer of the apartment into the ownership of the recipient, troubles will most likely arise from the registered persons.

For this reason, before confirming your consent to donate an apartment with registered people, it will be useful to check all the features and pitfalls of the agreement.

Required documents

To conclude this transaction, the parties must provide:

· your passports (originals + copies);

· ready deed of gift (3 copies);

· data relating to the market value of the subject of the agreement;

· extract from the house register – contains a list of persons registered in the specified real estate;

· cadastral passport of the transferred object;

· certificate of the owner (donor) or extract from the Unified State Register of Real Estate;

· the basis for the owner’s rights (sale and purchase agreement, deed of gift, heir’s certificate, court decision, etc.);

· consent of other owners (if any);

· consent of the spouse (when the property is jointly acquired, i.e. acquired by them during marriage);

· receipt of paid state duty (2000 rubles).

Participants submit all documents to the MFC or Rosreestr directly. Re-registration through the MFC will take longer, but it will be easier . To spend less time waiting in line, you can sign up in advance online. This is possible on the Rosreestr website.

Important Details

When concluding a gift agreement with an encumbrance, it is necessary to take into account some important details. In particular, encumbrances can be divided into two main groups. The first group includes encumbrances that prohibit the owner of the property from carrying out certain actions, and the second group includes encumbrances that impose additional obligations on the owner.

When concluding such a transaction, it is necessary to take into account the restrictions established by law. For example, young children cannot act as donors. It is prohibited to enter into such an agreement between business entities (with the exception of donations for certain public needs and gifts given to employees).

All of these restrictions must be taken into account when concluding a gift agreement.

The law prohibits the conclusion of a gift agreement with civil servants in connection with the performance of their official duties.