Who are the parties to the gift agreement and what are the requirements for them?

Donation agreement: all the details

Ownership of any property requires legal confirmation.
The legal owner can freely dispose of his things, as well as transfer them free of charge, including the right to them. Moreover, either a share or the entire object can be given away. There is a gift agreement for this. Any person with legal capacity has the right to donate. Minor citizens can also transfer property or the right to it (but only with the permission of their parents or guardians), confirmed by a notary. The legal regulation of donation is carried out through the Civil Code, namely Article 572 of Chapter 32.

The donor as a party to the transaction

The donor is a party to the contract who transfers to the donee free of charge the material benefit specified in the contract. According to the agreement, this person can be an individual, a legal entity, or a state. The law imposes two main requirements on the donor: he must own the alienated thing and have sufficient legal personality to alienate it.

Attention: You cannot convey what you yourself do not have. This obvious principle also applies to giving. However, the consensual design of the transaction (an obligation to donate for the future) implies the possibility of agreeing on the donation of a thing or property that does not belong to the donor at the time of conclusion of the transaction.

A capable donor has the right to benefit the recipient in any way he sees fit. He can transfer an item or property right that belongs to him, incl. the right of claim (Articles 382 and 383 of the Civil Code of the Russian Federation), to release your counterparty from a property obligation to yourself or third-party creditors by replacing the donee in debt obligations (debt transfer - Article 391 of the Civil Code of the Russian Federation).

A capable adult or a person who has undergone the emancipation procedure can be a donor without restrictions.

Children under 14 years of age and citizens declared incompetent due to mental disabilities or dementia cannot act as donors of things and goods worth more than 3,000 rubles. According to Art. 29 of the Civil Code of the Russian Federation, incompetent persons take part in property legal relations through legal representatives - parents, guardians. Lastly, by virtue of Art. 575 of the Civil Code of the Russian Federation, it is prohibited to make expensive gifts on behalf and at the expense of wards.

Gifts worth less than RUB 3,000. on behalf of the incompetent are not directly prohibited by law, but their legality is questionable: the legal representative, by virtue of his status, cannot take actions aimed at reducing the property of the incompetent or reducing his income.

Minors from 14 to 18 years of age and adults with limited legal capacity have the same rights to make a gift. By virtue of Art. 26 and 30 of the Civil Code of the Russian Federation, they are authorized to dispose of their earnings and enter into small household transactions without the consent of the trustees. They can give inexpensive things purchased on their own. To make an expensive gift, they will need parent/guardian consent.

Property that is in common joint ownership can be donated with the consent of all its owners (Article 576 of the Civil Code of the Russian Federation) in accordance with Art. 253 Civil Code of the Russian Federation. This rule also applies to property acquired during marriage. The regulations regarding spouses are additionally prescribed in Art. 35 of the Family Code (SC) of the Russian Federation.

A married person can freely dispose of property, which, according to Art. 36 of the RF IC belongs to him personally, including giving it to his spouse.

Regarding the possibility of making a gift to legal entities, only one restriction is established by law - an agreement in which commercial structures are simultaneously the donor and the donee is prohibited (Article 575 of the Civil Code of the Russian Federation). But a business entity has the right to give or make a donation to a citizen or any non-profit structure - educational, religious, medical institution.

For information, the legal personality of a legal entity is established by its owners in the constituent documents. An organization's ability to act as a donor/sponsor may be limited by its own documentation.

According to Art. 576 of the Civil Code of the Russian Federation, a legal entity is the owner of property worth more than 3,000 rubles. with the right of operational management or economic management can donate it with the consent of the owner. Considering the prevalence of property rights of this type, this restriction actually applies only to state-owned organizations.

Example A. and B. are married. In 2009, A.’s mother gave her a country house in the suburbs. In 2010 - 2012, the couple reconstructed it, including strengthening the foundation, covering the roof with metal tiles, equipping it with a solid fuel boiler and supplying water and electricity. In 2014, A. gave the house to her son from a previous marriage.

B. appealed the gift transaction in court.

The judge declared the gift agreement invalid. According to Art. 37 of the RF IC, the personal property of spouses may be subject to the regime of joint ownership if, during the marriage, expensive investments were made in it, significantly increasing the final cost. According to Art. 35 of the RF IC, the disposal of joint property of spouses occurs by joint consent. Since B. did not agree to the donation of the country house to A., it is invalid.

As a general rule, gifts made personally to each spouse are not subject to the regime of joint ownership. Therefore, when registering the gift agreement in the Unified State Register, A. did not have any problems. But they would have arisen if, in addition to the reconstruction, an extension/completion had been made with changes to the technical documentation. Having seen the investments made during the marriage, Rosreestr employees could request B’s notarized consent for registration.

The decision in the case of A. and B. on establishing a regime of common joint ownership of a country house is prejudicial: if A. and B. divide the property in court, the house will be subject to division.

Donation and donation: are there any differences?

Giving usually does not raise questions. There is an agreement, as well as rules and laws governing this process.

What is a donation? From a legal point of view, this is a gift for generally beneficial purposes. In this case, an agreement is necessary, as well as specification and clarification of the purpose of the sacrifice. In the case of individuals, compliance with this condition is mandatory; for legal entities, it is not, but possible. However, when indicating the purpose, the latter, when using the received property, will have to keep records of the actions carried out with the donated property.

The concept and aspects of giving in 2021

Like most other legal transactions in civil law, a gift agreement is a bilateral agreement. At the same time, one of its main distinguishing features is the desire of the donating party to transfer it free of charge into the ownership of another person, called the donee, without any reciprocal property actions, that is, without paying for the gift.

Simply put, a gratuitous agreement, in this case, consists of transferring a gift without presenting any conditions to a person who has expressed a desire to accept the rights and obligations associated with the gift.

Examples from the practice of our lawyers

First example

Citizen O. dreamed of raising grandchildren throughout his life, but his daughter, who was 35 years old, could not get married, breaking off relations with men as soon as she was proposed to marry her, citing the fact that she did not have her own home to start a family.

Soon O. acquires a small house with a plot of land, promising to issue a deed of gift for the house if his daughter gets married. At the same time, the father and daughter enter into a consensual act or an agreement of promise of gift between themselves, the content of which states that the above-mentioned real estate will act as a wedding gift from O. to the young family.

Second example

Citizen M., wanting to give her niece O. a birthday present, gives her her own foreign car at a cost significantly less than the market price. Some would consider such a deal a rather generous gift. However, from the point of view of the legislator, this transaction was not a donation, but a purchase and sale, because it contained a counter-obligation of the donee, who, although he paid less, still did not receive the gift for free.

Lawyer's Note

Thus, the donor’s intention to make a donation must not only be his expression of will to transfer the gift to the recipient, but it must be done free of charge.

In this case, for example, the condition in the agreement on the lifelong residence of the donor in the apartment donated by him will not apply to counter-obligations.

As you can see, even such seemingly obvious signs of a contract as intention and gratuitousness cannot today be a guarantee that a donation was made between the parties.

Also, in order to conclude a legal transaction of gratuitous donation of goods, the donor must obtain an agreement from the recipient to accept the gift, thereby enriching himself at the expense of the giving party. And again we can notice the relationship between 2 signs of a gift transaction:

1. The desire of the donor to give freely;
2. consent to accept the gift, as well as the rights and obligations associated with it.

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Donation agreement between legal entities

This, in turn, confirms the fact that donation is a bilateral agreement.

What can you give from a legal point of view?

The subject of donation can be absolutely any thing and object, be it money or securities. The property rights themselves have either a proprietary nature or the right to claim it.

What can be transferred:

• movable property - the list of such objects is not regulated by law;
• real estate - everything that is connected to the land that cannot be moved without harm and damage, including the land itself;
• property rights – objects that do not have a material embodiment, for example, property rights.

The donation is made in writing or orally. The first option is mandatory for movable property in the following cases:

• the donor is a legal entity, and the value of the gift is above 3,000 rubles;
• the transfer itself will take place later, after some time.

The transfer can take place as follows:

• delivery;
• symbolic transmission;
• documents receiving.

Who cannot be the recipient

The Civil Code provides for cases when it is impossible to implement a gift agreement due to the inadequacy of the donee.

1. If the person who receives the gift and the donor are in a dependent legal relationship (subordinate and boss, patient and doctor, teacher and student);

The controversy about gifts for doctors and teachers has been going on for years. According to the general rule established in practice, it is possible to gift them only after the citizen has received the service (after completion of treatment, training). An exception may be state and professional holidays to which this person is directly related (New Year, Teacher's Day, March 8th), but even in this case you need to monitor the cost of the gift. In practice, there is no clear amount that must be limited when donating.

1. The recipients also cannot be social security workers. A gift in their favor may amount to extortion from a dependent person;
2. Civil servants cannot accept gifts from people directly dependent on them (or from people who turned to them for one or another help related to their professional activities);
3. Foreigners (both individuals and legal entities) or stateless persons, if the object of the transaction is land intended for agricultural work or a border land plot. This subclause also includes legal entities founded by citizens of the Russian Federation, but the share of foreign investments in the capital of which is more than 50 percent;
4. When both parties to the contract are commercial organizations;

The donee or donee in a gift agreement is not a privileged party. They are equal with the donor in procedural rights and obligations.

Donor

The donor has the right:

1. Determine the recipient yourself.
2. Refuse from a gift agreement in cases where his financial situation has changed dramatically (due to a natural disaster, illness) or if, after signing the documents, the donee has committed a crime provided for by the Criminal Code of the Russian Federation, aimed at the donor or members of his family (sometimes at close friends, but in practice this is practically unprovable).
3. Make a donation not within the prescribed period, but after the occurrence of certain circumstances (for example, a father’s obligation to give his son a car after graduating from university).
4. Cancellation of the contract (without the intervention of the donor) is possible if the person who was supposed to give the gift died at the hands of the recipient, or if the citizen who received the gift uses it inappropriately.

An example would be the donation of an individual object. If the donor is an artist, and he gave his painting to the recipient, and he hung it in a damp room, due to which the gift is destroyed by moisture, the donor can demand the painting back through the court, since the behavior of the person who received the gift leads to its destruction, and he the gift (painting) has significant meaning for the donor.

1. If the donor was a legal entity, and the gift was made not at the expense of the personal money of the managers, but at the expense of the enterprise fund.

The donor is obliged:

1. Transfer the gift to the donee within the time period established by the contract.
2. Pay all related expenses (transport, tax, customs, legal) yourself.
3. Determine what the gift can be used for (or designate a public use right).
4. Inform in writing or orally the person who will receive the gift about all the encumbrances and shortcomings of the gift (if the person does not report noisy neighbors during the apartment donation agreement, then he will not be held liable, but for concealing any encumbrances the court may prosecute the donor to liability).

donee

The donee has the right:

1. Receive a gift free of charge.
2. Refuse to accept a gift without giving reasons.
3. Change the purposes for using the gift if the donor has died, or with his written consent.

The rights of the donee or donor cannot arise without duties, just as duties cannot arise without rights.

The donee is obliged:

1. Use the gift solely for the purpose specified in the gift agreement.
2. Handle property so that actions do not lead to its destruction or impossibility of using it for its intended purpose.
3. Return the gift if the gift agreement was canceled or the donor refused it.
4. Return the gift (the donor pays for related income) if circumstances are discovered that the person who made the gift hid from the recipient.

Types of gift agreement

Despite its gratuitousness, the contract can be consensual or real. It depends on the circumstances and details of its signing.

There are the following types of such agreement:

• transfer of ownership of property;
• deprivation of the right to own things;
• assignment of the right of claim - receipt of property by the donee (regulated by Articles 382 and 383 of the Civil Code of the Russian Federation);
• transfer of obligations under the debt to the donor, that is, its transfer from the donee (carried out with the permission of the creditor).

Commercial real estate gift agreement template

The circle of donees in respect of whom donation is prohibited

Article 575 of the Civil Code of the Russian Federation limits the circle of persons who cannot be gifted:

• commercial organizations;
• employees of educational, medical, organizations , institutions providing social services and the like, employees of organizations for orphans, as well as children without parental care. Donors cannot be persons (their relatives) who are receiving treatment, education, or support from these organizations;
• citizens holding government positions in the Russian Federation, constituent entities of the Russian Federation, municipal positions, employees of the Bank of Russia, in connection with the performance of their official duties. Gifts in relation to this category of persons are permissible only at the official level (protocol events, business trips), otherwise, if the value of the gift exceeds three thousand rubles, such a gift will become the property of the institution in which this person works.

Additionally

The ban on donating property or property rights/claims to a certain circle of persons is related to their professional activities and is a means of combating corruption. Based on the meaning of the above article, we can conclude that a gift worth more than three thousand rubles will be illegal.

Gifting to minors and incompetents is also regulated by law. Despite the acquisitive nature of the transaction and the seemingly profitability, the opinion of the legal representatives still matters, since they are the ones who are responsible for their wards. Unavoidable closing costs are an integral part of the agreement. They will most likely be borne by representatives of these individuals, since a teenager is unlikely to have 13% of the cost of an expensive gift, for example, an apartment.

Certain restrictions apply to incapacitated and partially capable persons:

• Citizens who are unable to meet their obligations and carry out actions that give rise to rights and obligations, that is, enter into transactions, are considered incompetent. These are people with mental disorders, they receive this status only through the court, they are assigned guardians. They cannot be donors under any circumstances;
• Those persons who, as a result of craving for alcohol, spirits, and gambling, put their family in a difficult financial situation are considered to have limited legal capacity. They can donate their property with the consent of their legal representatives.

Prohibitions and restrictions are also established in relation to minors:

Property obligations

When signing a gift agreement, you should remember the existence of so-called property obligations. They prescribe certain conditions for the use of property. For example, the new owner must use the gift for certain purposes. That is, such a document may contain clear restrictions on the use of the received property.

If there is a mutual transfer of rights, things or obligations, then such an agreement is not recognized as a donation. Such an agreement falls within the scope of paragraph 2 of Article 170 of the Civil Code of the Russian Federation.

What risks may the recipient have?

The gift agreement seems to be a simple document only at first glance, if you do not delve into the details of the transaction. Meanwhile, ownership of an apartment under a deed of gift may not arise immediately. Thus, a transaction in the form of a donation on the basis of Article 572 of the Civil Code of the Russian Federation can be:

• unconditional, implying the transfer of ownership immediately without any additional agreements;
• consensual, with the condition of transfer of the gift in the future.

Moreover, each of the methods of transferring property implies certain risks of returning the gift, and in the manner prescribed by law.

What is the nature of the gift agreement?

The very nature of the gift agreement is controversial even among lawyers themselves: it is believed that it is either one-sided or two-sided. The unilaterality of an agreement is expressed when it is initiated by one person. Typically, consensual agreements are recognized as unilateral when the donor declares a desire to transfer property or the right to it to someone free of charge. It is also possible that, on the contrary, he wants to deprive him of a property obligation. Precisely because the first person undertakes to transfer, and the second acquires the right to demand receipt, without having any obligations, this agreement is considered unilateral by part of the legal community.

Another statement in favor of unilateralism is that both persons can waive their rights and obligations without the consent of the other.

The death of the donee before the acceptance of the gift

The deed of gift comes into force from the moment it is signed by all parties to the transaction. Situations are possible when there was a delay in the transfer of rights or the recipient of the gift died before taking legal ownership of the donated property. In this case, the rights to the deed of gift after the death of the donee are transferred back to the donor.

It is important that this condition is stated in the gift deed. If there is no clause in the agreement on the cancellation of the fact of donation and the return of the donated property to the donor in the event of the death of the donee, the first-degree heirs of the deceased will receive a share in the ownership in equal shares. These include his spouse, children, parents.

The problem of using minors and incapacitated persons

Experts note a number of controversial points in the Civil Code. One of them is found in subparagraph 1 of Article 575: the amount of gifts should not exceed 5 minimum wages, but this restriction is circumvented by transferring on behalf of minors or other incapacitated citizens. This also contradicts Articles 28 and 37 of the Civil Code, which state that income belonging to the ward, including those received by guardians or trustees as a result of the use of his property, must be spent exclusively in favor of the latter.

Causing harm to the recipient with a gift - rights and consequences

If, after accepting a gift, damage was caused to the health or property of the recipient, the cause of which was an unobvious lack of property, the general rules regarding compensation for damage listed in Article 59 of the Civil Code of the Russian Federation will be applied to the donor.

According to the information set out in Article 580 of the Civil Code, the donating party is responsible for defects and shortcomings of the object of donation that appeared before the transfer of property to the donee, if the donor himself had information about their presence, but kept silent about this fact.

Lawyer's Note

As in most similar cases, the definition of harm is the infliction of material damage, expressed both in damage or destruction of property, and in the deterioration of health or death of the party who accepted the gift.

At the same time, the recipient has the legal right to present his claims as a consumer to the manufacturer of the gift if, during an examination, it is proven that the damage was caused by the fault of this manufacturer. All this is done through the consumer protection service.

An example from the practice of our lawyers

Citizen M. made a gratuitous gift to her sister, giving her a new foreign car under a gift agreement. About 2 months later, the wiring in the vehicle burned out and as a result of brake failure, the donor's sister had an accident, receiving numerous burns and injuries.

Since the car was donated directly from the car dealership, the donating party could not be at fault, and all responsibility for the defects that caused the accident fell on the car manufacturer, as well as the car dealership employees who sold the low-quality product that caused the damage.

It is worth noting that the disadvantages of a gift can have not only physical defects, but also legal defects! Article 580 of the Civil Code of the Russian Federation states that the described consequences of compensation for damage apply not only to property benefits, but also to services.

For example, the norms of Article 580 of the Civil Code of the Russian Federation apply in cases where the object of the gift is exemption from obligations or property rights. As an example, let us cite the encumbrance of a gift with the rights of third parties, about which no one had information before the transaction except the donor.

Harm caused to the recipient, according to Article 1082 of the Civil Code of the Russian Federation, must be compensated in full!

Is it possible to make a donation in favor of commercial organizations?

Subparagraph 4 of Article 575 states that a donation cannot be made in favor of a commercial organization. The very purpose of the existence of enterprises is to obtain income and financial benefits. And this deal implies a gratuitous agreement. These provisions contradict each other, so in such a situation it will not be possible to draw up a gift agreement.

The commercial orientation of organizations is enshrined in law in paragraph 1 of Article 50 of the Labor Code of the Russian Federation. It is explained that in such conditions such an agreement can cause damage to credit institutions or the state. Ordinary gifts are not prohibited.

The donee as a party to the transaction

The law does not contain any special requirements regarding legal capacity. It is enough that the donor or beneficiary under the donation agreement meets the requirements of the following. 2 of the Civil Code of the Russian Federation “Persons”. According to domestic legislation, it is impossible to give anything to an animal or, for example, to an organizationally unformed community of people.

Attention Children under 6 years of age and incapacitated persons accept gifts through their parents/guardians.

In accordance with Art. 28 of the Civil Code of the Russian Federation, minors over the age of 6 years have the right to enter into transactions aimed at obtaining benefits for them free of charge, if they do not require notarization or state registration.

Persons with limited legal capacity, according to Art. 30 of the Civil Code of the Russian Federation, are not infringed on the right to enter into gift agreements as donees.

A number of regulations prohibiting donation are contained in Art. 575 of the Civil Code of the Russian Federation. According to its contents, persons who are supported, treated or under the care of educational, medical institutions, and social service organizations are limited in giving gifts worth more than 3,000 rubles. for the benefit of their staff.

Article 575 of the Civil Code of the Russian Federation prohibits persons holding government positions, civil servants and municipal employees, and employees of the Central Bank from accepting gifts worth more than 3,000 rubles. in connection with the performance of their official duties. An exception is made only for the so-called “protocol gifts”, which are de facto accepted by officials, and de jure become the property of the government body in which they serve.

The donation transaction is two-way. To conclude it, at least two subjects are needed - the donor and the donee, who in the donation agreement are usually called “donor” or “beneficiary”.

Sometimes the conclusion of a gift requires agreement with third parties - the legal representatives of the minor donor, the creditor of the donee (in the case of transfer of debt).

Requirements for the donor relate to age, legal capacity and ownership of the object of the donation.

The law does not impose any special requirements on the donee. In order to avoid abuse of power, a number of restrictions have been established on receiving gifts on a professional basis for individuals and on the organizational and legal form for legal entities.

Problems with gifts to officials

Another subtlety is the transfer of things to officials, as well as people holding managerial positions in any enterprises. Experts are convinced of the need for amendments to subparagraphs 2 and 3 of Article 575 of the Civil Code of the Russian Federation: in their opinion, the ban should apply to any gifts, regardless of their value. However, an exception should be made for those given on a birthday, when awarded by the government. In this case, friends, relatives, and work colleagues who do not have any official contacts with him should be able to give gifts.

Procedure for drawing up the document

A deed of gift implies a special transaction in which the donee is given property at his disposal. Depending on the type of property (apartment, house, land), you need to know how to correctly draw up a gift agreement.

When donating real estate, the gift agreement must undergo mandatory registration with the relevant government department.

First, you should go to a notary who will help you correctly draw up a gift agreement. In addition to legal assistance, the notary confirms with his signature that:

• the parties who signed the agreement are absolutely legally capable;
• the donor and the recipient are in a sane state and are aware of their actions;
• no one signs an agreement under the threat of his life or the life of his relatives.

After the notary helps in drawing up the gift agreement and certifies it, the document should be transferred to the registration department.

Agreement in writing

According to the Civil Code of the Russian Federation, it is allowed to draw up a gift agreement in simple written form.

However, when preparing such a document, you should pay attention to some cautionary factors:

• Controversial issues. If a conflict arises between the parties, a written gift agreement does not protect against bad faith of any of the parties.
• Contestability of the document. A deed of gift drawn up in simple written form can be easily challenged in court. Since when signing an agreement there is no confirmation of the legal capacity of the parties, their sanity and the authenticity of signatures. At any time, one of the parties to the transaction may refuse to participate in the agreement.

Notarized documents are stored in a special Register, so if you lose a document, you can ask the notary for a copy of the deed of gift.

This copy of the signed transaction has the same legal force as the lost original. However, if you want to draw up a deed of gift without the intervention of a notary, then for this you need to be well aware of your legal rights and rules on how to draw up a deed of gift legally competently.

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Contents of the gift agreement

When drawing up a contract, it will be necessary to provide reliable information regarding:

1. Donor: passport details, place of residence.
2. The recipient: personal data from the passport and place of residence.
3. Transferred property: data must correspond to certificates from the BTI and other government services (address, square footage, how many rooms, how many floors, in what area, etc.).

During the period of drawing up the deed of gift, the real estate must be free from collateral, prohibition or obligatory share of the apartment with the heirs.

If a certified representative of one of the parties participates in the execution of the transaction, then his data must be included in the contract. Omission of such a nuance may lead to recognition of the nullity of the signed donation agreement. Therefore, the deal can be easily challenged in court.

Can the donor remain living in it when transferring the property?

The transaction is illegal if, when transferring the residential premises, the donor wants to stay and live there. This contradicts the principle of gratuitousness and is therefore illegal. Such an agreement is “feigned and void,” as described in paragraph 2 of Article 170 of the Civil Code of the Russian Federation. It would seem that such a deal is similar to an agreement with lifelong maintenance of a dependent. But no. An agreement of this kind cannot be concluded in principle. Rental relations imply otherwise, and this situation does not comply with the law. This is regulated by Article 168 of the Civil Code of the Russian Federation. Such a document is considered void.

What responsibilities fall on the donee?

Let us immediately note that, in comparison with the donor, the donee, by and large, does not have responsibilities that would bind him to the gift agreement. At the same time, the donating party has the right to establish additional obligations in the contents of the deed of gift, requiring their fulfillment from the donee.

For example, such an obligation may include refraining from performing a certain action or a series of actions in relation to the received property or, conversely, the obligation to perform certain actions (for example, repairs or technical inspection).

Also, the agreement may stipulate a condition according to which the donee will have to provide the donor with the right to lifelong use of the property received from him or the obligation to make regular rent payments.

In addition, it is the recipient party, when making a gift transaction, who has the obligation to return the property received by him, if this is necessary when canceling the gift deed or terminating the agreement in court.

Let us recall that, according to paragraph 2 of Article 578, the donee is obliged to take proper care of the received object of the transaction if it has great non-property value for the donor.

An example from the practice of lawyers of the website “Legal Ambulance”

Citizen O. donated a collection of art objects to the local museum, namely 12 paintings that were painted by his mother. Some of them were placed in the exhibition hall of the regional museum, while the rest remained in its storage, the conditions in which were far from necessary for storing paintings.

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Having learned about this, citizen O. was forced to apply to the court, demanding to cancel the donation agreement, in accordance with the norms established by paragraph 2 of Article 578 of the Civil Code of the Russian Federation, and also to apply the consequences of the cancellation of the deed of gift to the museum.

Since all of O.’s arguments were supported by relevant evidence and references to laws, the court accepted the plaintiff’s claims.

What is a “regular gift of small value”

There is a catch with the amount of the gift. The law does not have a clear value up to which the gift is recognized as an ordinary gift. Experts say that indicating a specific amount is necessary, in which case discrepancies and misunderstandings of the legal provisions of the code will disappear. This concerns paragraph 1 of Article 576 of the Civil Code of the Russian Federation, where there are significant restrictions in establishing the legal capacity of state and municipal institutions. But they do not play any role for ordinary gifts.

There is another aspect - Article 295 of the Civil Code, which imposes restrictions on enterprises owning only real estate. The right of economic management or operational management implies that a legal entity can donate an item if the owner himself agrees to this. Apparently, the norm also applies to this exception, since the company is able to dispose of property itself. Ordinary gifts of small value do not fall under this rule.

Five naive questions about giving

Real estate as a gift is the dream of millions of people. Alas, there are few such lucky ones. Usually, donating an apartment is either a sign of great love, even to the point of self-denial, or an alternative to making a will. Be that as it may, such a deal is distinguished by many legal subtleties. We asked lawyer, transaction manager of the real estate agency Zhemchuzhina-Realty LLC, Eduard Shalin, about the simplest and most important thing in this matter.

— How to properly formalize the donation of an apartment? What documents are needed?

— To begin with, it is necessary to note what constitutes a donation. Let's turn to the Civil Code. According to Article 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party. Based on these provisions, this transaction is bilateral and is gratuitous in nature, that is, the property is transferred to the donee free of charge.

This transaction is also unconditional, that is, neither party has the right to state any conditions in the gift agreement. To complete this transaction, it is necessary, with the help of a lawyer, to draw up a gift agreement in simple written form or have this agreement certified by a notary (currently this is done at the request of the parties) and sign it. The contract must be accompanied by title documents for the apartment, a certificate of state registration of the right, after which it is necessary to submit this set of documents for state registration. Moreover, both the gift agreement itself and the transfer of ownership to the donee will be registered. Sometimes other documents may be required: the consent of the spouse of the apartment owner for donation, a certificate from the tax office confirming the absence of debts on taxes and fees in accordance with the legislation of the Russian Federation, a cadastral passport of the apartment, etc. A lawyer can provide a complete list when analyzing the title documents.

— Is a gift taxable? If so, who should pay, how much and when?

— According to paragraph 18.1 of Article 217 of the Tax Code of the Russian Federation, income received by way of gift is exempt from taxation if the donor and donee are family members and (or) close relatives in accordance with the Family Code of the Russian Federation (spouses, parents and children, in particular including adoptive and adopted parents, grandparents and grandchildren, full and half (having a common father or mother) brothers and sisters).

You will have to document the fact of your relationship to the tax office. If you give real estate to other persons, for example, to a neighbor or friend, then this transaction is subject to tax at a rate of 13% of the value of the gift (real estate), and this tax must be paid by the donee, due to the fact that it is he who receives the income. He must submit a declaration to the tax authority in the period from January 1 to April 30 and report on receiving income in the form of a gift for the past tax period, and then pay the tax itself.

— Does the gift deed have retroactive effect?

— A real estate donation agreement that has passed state registration can only be terminated in court. For example, to do this, the donor needs to file a lawsuit against the donee to declare the agreement invalid and apply the consequences of the invalidity of the transaction.

Lawsuits to terminate a gift agreement or invalidate it are quite common. Often, the basis for recognizing an apartment donation agreement as invalid is both a transaction made under the influence of delusion, deception, threat, and a transaction made by a person, although legally capable, who was at the time of signing in such a state where he could not understand the meaning of his actions or lead them. Another risk of termination of a gift agreement is associated with the concept of a sham transaction, when a real estate gift agreement covers up a purchase and sale agreement. Such disputes are resolved by the court in a general manner upon the application of any interested person.

“Sometimes older people donate an apartment instead of bequeathing it and hope to continue living there for the rest of their days. Do they have the right to do this by law or can they be put out on the street? Can the donor retain registration in the donated apartment?

- Yes, indeed, often older people give an apartment to their children, grandchildren, other relatives, and sometimes to strangers, without thinking that after state registration of the rights to the apartment, the recipients will become full owners of the apartment and will be able to sell it or dispose of it in another way, moreover, regardless of the residence of the donor.

Very often, recipients, upon becoming owners of real estate, begin to relate to the donor differently. Therefore, to be on the safe side, I recommend stipulating in the gift agreement the right of the donor to permanently use and live in the apartment. I categorically do not advise giving an apartment to strangers: friends, neighbors, acquaintances.

—What is better: bequeathing an apartment or donating it?

— First, let’s figure out what a will is. A citizen can dispose of property in the event of death by making a will, which is a unilateral transaction that creates rights and obligations only after the opening of the inheritance. Thus, having written a will, the citizen remains the owner of the apartment. He has the right, at his own discretion, to bequeath property to any persons, to determine the shares of heirs in the inheritance in any way he wishes, to deprive one, several or even all heirs of the inheritance by law, without specifying the reasons for such deprivation, and also to include other orders in the will. He can also revoke or change a completed will. Moreover, it is permissible to draw up a will containing orders for any property, including that which its author may acquire in the future.

The testator can dispose of his property or any part of it by drawing up one or more wills. Moreover, he is not obliged to inform anyone about the contents, execution, change or cancellation of the will. Unfortunately, this document also has disadvantages: freedom of testament is limited by the rules on compulsory share in the inheritance. Namely: minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator who are subject to inheritance, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law. Despite the great advantages of a will, citizens prefer to donate their real estate to relatives during their lifetime. This is apparently due to the fact that after their death they do not want to burden their relatives with trips to various organizations, collecting documents, visiting a notary, and paying state fees.

If the choice is between a will and a gift, then I am a proponent of a will. Firstly, a will completely eliminates the risk of being left without an apartment, and secondly, the testator can not only bequeath his property, but also has the right to assign to the heirs the fulfillment, at the expense of the inheritance, of any obligation of a property nature in favor of one or more persons who acquire the right demand the fulfillment of this obligation, for example, grant someone the right to live in an apartment, oblige heirs to care for pets.

If you nevertheless decide to donate an apartment, then I recommend including in the contract provisions on the cancellation of the donation, provided for in Article 578 of the Civil Code of the Russian Federation: the donor has the right to cancel the donation if the donee has made an attempt on his life, the life of any of his family members or loved ones relatives or intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand in court the cancellation of the donation belongs to the heirs of the donor. The gift agreement can also provide for the donor's right to cancel the gift if he survives the donee.

We should not forget about the prohibition on gifts provided for by the Civil Code to persons holding state and municipal positions. And if there are any among your relatives, it is better to leave a will to them.

There is no need to worry if you do not leave a will during your lifetime. In this case, inheritance will be carried out according to law, and your relatives will inherit all your property.

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How to protect the rights of the donor and the recipient?

Also, the law does not contain provisions on criminal acts when revoking property: the fact is that the donee, when returning it, can cause damage to the gift. As a result, the damaged object will be returned. In addition, the first is capable of committing criminal acts against the donor and his relatives. Therefore, there is a need for legal protection by introducing appropriate amendments to paragraph 1 of Article 578 of the Civil Code, which regulates the cancellation of donations. Experts propose to introduce an amendment in which the transaction can be canceled if the donee has committed any crime against the donor or his relatives, be it criminal or affecting the honor and dignity of a person. The fact of these actions is confirmed either by the culprit himself or in court.

The same article requires amendments to paragraph 5, since the item must be returned in its original condition. If any damage was caused to him, then the donee gives the amount in monetary equivalent of the object. Some researchers have already stated the need for such an edition.

It is also necessary to protect the rights of the donee, which will be legally fair and correct. To do this, it is necessary to indicate in Article 580 of the Civil Code the degree and form of the donor’s guilt for improper fulfillment of obligations to the donee. In this case, he will be held liable only in case of intent or gross negligence.

However, it should be remembered that the transferred property cannot be subject to quality requirements, since the gift agreement is gratuitous. The only condition is that it should not cause harm to the health, life or property of the recipient. If the donor knew about the possible risks and did not warn about it, and the gift caused any damage, then the donee has every right to request compensation for damages. But if there are obvious defects, even if they cause harm, the donor does not bear any responsibility.

How to reduce risks when promising a gift in the future

It is quite difficult to reduce risks when drawing up a gift agreement with a promise to donate an apartment only in the future, given that no one can predict possible difficulties in life. In addition, the donor, under certain circumstances, can refer to the provisions of Article 451 of the Civil Code of the Russian Federation, which also reduces the possibility of retaining ownership of the donated apartment. And, nevertheless, it is possible to minimize the negative consequences.

The loss of property in the event of the donor’s untimely death can be avoided by introducing into the contract a condition on the transfer of the donor’s obligations to the heirs within the framework of Part 2 of Article 581 of the Civil Code of the Russian Federation.

When drawing up a contract, it is advisable not to provide for a long period of execution of the contract in order to avoid the deterioration of the donee’s condition.

Do not agree to purchase property by gift that is in a dilapidated condition, taking into account that before taking possession, the same house may fall into complete disrepair. If, however, the property is accepted as a gift, a condition regarding compensation for losses in the event of destruction must be prescribed in accordance with Article 580 of the Civil Code of the Russian Federation.

Unfortunately, the recipient cannot minimize the risks of loss of health, deterioration of the financial situation or changes in the family circumstances of the donor.

Responsibilities of the donee

The donee has virtually no responsibilities as such associated with the gift agreement. However, the donor in the contract can establish an obligation for the donee and require him to fulfill it. Such an obligation may be the donee performing a certain action of a property nature in favor of a third party or refraining from performing it .

According to the gift agreement, the donee is obliged to transfer ownership of property to a third party, pay him rent or grant him the right to use part of the donated property for life, not make demands on the third party to evict him, etc.

Also, the donee has the obligation to return the donated property in kind (reimburse its actual value) in cases of cancellation of the donation or termination of the contract. In accordance with paragraph 2 of Article 578 of the Civil Code, the donee is obliged to properly handle the property donated to him if it constitutes significant non-property value for the donor.

Example

Citizen Berezina D.T. donated a collection of her father’s paintings to the regional folk art museum. Some of them were placed in one of the exhibition halls of the museum, the rest were in storage. The storage facility turned out to be completely unsuitable for storing paintings. As a result, half of the collection was damaged. Therefore, citizen Berezina D.T. filed a claim in court to cancel the donation on the basis of paragraph 2 of Article 578 of the Civil Code and to apply the consequences of canceling the contract. The first part of the requirement is related to the improper fulfillment by the museum (donee) of its duties to preserve the collection of paintings, which for citizen Berezina D.T. (donor) has great non-property value. The second part of the requirement, if the court decides in favor of the donor, will be associated with the obligation of the donee to return the gift in kind, in this case, the surviving part of the collection of paintings.

Refusal of the gift by the recipient

The donee has an unlimited right to refuse to accept the gift . At the same time, he is not required to provide any explanations about the reasons and motives for such a decision. The only thing that is provided for in paragraph 2 of Article 573 of the Civil Code is compliance with the form of refusal, which directly depends on the form of concluding the gift agreement.

Important

If the gift agreement was concluded in writing, then the refusal must be in writing. After the donee declares to the donor that he refuses the gift, the contract will be considered terminated.

It was already noted above that the recipient can refuse to receive a gift only before it is transferred . This can be done in the case of concluding a consensual gift agreement, when there is a certain period of time from the moment the agreement is signed until its execution.

Also, the donee cannot partially refuse the gift , since this requires a change in the gift agreement and the consent of the donor. If a donation is made, then refusal of the donated property is impossible. Otherwise, the donor has the right to demand from the donee compensation for losses caused by such refusal, if the gift agreement was drawn up in writing (clause 3 of Article 573 of the Civil Code).