How to refuse a deed of gift for an apartment

Author of the article: Anastasia Ivanova Last modified: January 2021 22821

Refusal of donation and cancellation of donation are not so common in legal practice, but still specialists have to deal with a similar procedure. A deed of gift is a gratuitous transaction that cannot be terminated unilaterally. For this document, inheritance law provides for a number of special rules. It is possible to return the donated property before its actual transfer to the donee takes place. However, to do this, the transaction must be consensual in nature.

Expert commentary

Shadrin Alexey

Lawyer

If an oral agreement has occurred between the donor and the donee, then the rights to transfer property in the future do not arise, and the object of the donation simply passes from the donor to the donee, as a result the transaction is considered completed.

A donation executed in accordance with all the rules of the Civil Code of the Russian Federation cannot be canceled, but there are certain situations in which it is possible to cancel the transaction and return the donated property, but it is not easy to do. What nuances are involved in refusing a donation and canceling a transaction, as well as what its participants will have to face, will be discussed below.

Is it possible for the recipient to refuse to accept the gift?

The recipient's refusal of the gift is possible on the basis of Art. 573 Civil Code of the Russian Federation. According to it, refusal is made at any time before the transfer of the gift. When a gift agreement (hereinafter referred to as DD) is drawn up in writing, the refusal is also drawn up on paper. If the transaction is made orally, a verbal refusal is sufficient.

Most often, recipients refuse gifts in several situations:

• a contract of promise of gift has been drawn up, the gift has not yet been transferred;
• consent to receive the gift was given orally, but before delivery the person decided to cancel the transaction;
• the donor transfers a gift that does not belong to him by right of ownership.

Important! A donation is considered a bilateral transaction, but the refusal is formalized or given orally unilaterally. The donor or third parties have no right to influence the recipient. It is worth considering that when drawing up a deed of gift in writing, the owner of the gift has the right to demand from the other party compensation for damage caused by the refusal (clause 3 of Article 573 of the Civil Code of the Russian Federation).

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Reasons and consequences of refusal to donate

What to do in this case and is it possible to do this? You need to know that it is impossible to refuse the obligation at the discretion of one of the parties. For a gift agreement in this regard, the legislation of the Russian Federation provides for special rules. You can return everything back before the actual transfer of the gift item to the recipient. The contract must be consensual, that is, the parties stipulate the fulfillment of the obligation in the future, and until this moment the contract can be terminated. With an oral agreement, the rights to transfer property in the future do not arise, the object of the donation is transferred from hand to hand, and the transaction is considered completed. A real donation cannot be cancelled.

Features of refusal of a gift agreement

The possibility of refusal depends on the type of deed of gift. If a real DD is concluded, the gift is transferred immediately after signing, the transaction is considered concluded, and the donee will not be able to exercise his right under Art. 573 Civil Code of the Russian Federation.

When drawing up a consensual DD, the donor promises a donation. The gift is transferred after some time, and the donee can refuse the procedure at any time before the actual delivery of the gift, documents or keys to it.

Let's consider the features of failure in different situations.

Before registration

Previously, when donating real estate, the deed of gift had to be registered with Rosreestr. Since 2013, this obligation has been abolished, but the transfer of ownership is registered.

If a contract of promise to donate housing or other real estate has been drawn up, but the right has not been registered, the refusal must be made in writing.

After registration

As mentioned earlier, registration of a deed of gift for real estate is now not required. But a written DD may be needed if a vehicle is donated - it must be registered with the traffic police by the recipient.

If real estate is donated under a real DD, and ownership is re-registered in the name of the donee, refusal by the donee is impossible. He will be able to challenge the deal only through court. The same applies to donating a car: if information about the new owner has already been entered, it can be canceled in court.

Legal advice: to avoid having to go to court to cancel the transaction, it is better to return the gift peacefully. To do this, it is enough for the donee to issue a deed of gift to the donor.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

How to correctly draw up an additional agreement to a gift agreement?

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Reasons and consequences of refusal to donate

This rule also applies to the promise of donating an apartment when the onset of a decline in the standard of living coincided with the moment of registration (that is, the parties submitted an application to register the transaction and during these days the donor’s property or family status or health condition worsened). It is necessary to keep in mind that circumstances in which the donor’s situation (property, family) or health condition worsened should arise precisely after the signing of the transaction.

They had to be unforeseen and before they occurred, the parties could not have imagined such a possibility. If in the life of the previous owner of the apartment, the events that occurred did not significantly worsen his standard of living, then this will not serve as a basis for termination.

However, the significance of the reduction in the standard of living is a subjective concept and must be assessed in each situation separately. It is possible to cancel a deed of gift through the court when the transfer of the gift has already taken place, the contract has been executed, but there are certain reasons or circumstances for the return of the value:

• negligence and use of a gift with the possibility of its complete loss, destruction or deprivation;
• death of the donor before the transfer of the gift, if such a clause was appropriate in the deed of gift;
• the gift was made at the expense of a legal entity, corporate funds six months before the bankruptcy of the donor himself.

There are cases when the donor does not have the right to refuse the gift agreement. This applies to gifts whose value was small. In this case, the donee cannot demand compensation for damage, even if such a fact is present. An example of refusal of a gift deed Vasilyev P.F.

The procedure for the donee to refuse a gift agreement

If the gift is made orally, it is enough to verbally refuse the gift.

When registering a transaction in writing to cancel, you need to take two steps:

1. Submit a statement of refusal.
2. Deliver the document to the donor in person, by mail or by courier.

In the future, the donor has no right to insist on the transaction.

Contents of the refusal notice

The document is drawn up in simple written form.

You must provide the following information:

• Full name, passport details, dates of birth of the parties;
• details of the promise of gift agreement, according to which the refusal is issued;
• date of compilation and signature of the donee.

It should be noted that the gift was not transferred to the recipient at the time of drawing up the refusal.

Sample application for refusal of a gift agreement:

Consultation on document preparation

Possible expenses

If you fill out the application yourself, there will be no costs. But sometimes difficulties arise with registration, and it is better to seek help from lawyers. The cost of this service varies from 1,000 to 2,000 rubles.

Some people prefer to notarize the refusal, although such an obligation is not established by law. The notary will have to pay 500 rubles. according to Art. 22.1 “Fundamentals of legislation on notaries” as for certification of transactions, the subject of which is not subject to assessment.

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Reasons and consequences of refusal to donate

Important! If the agreement was registered with a notary, then to cancel it you must contact the same notary office that registered this agreement. If the transfer of ownership has taken place and information about the change of owner has been entered into the state register, then cancellation of the contract is possible only by a court decision in the cases specified in the law

Invalidity of a donation of housing Not in all cases a donation can be recognized as legal. Not everyone can give real estate as a gift. The law specifies a list of persons who cannot act as a donor or recipient.

1. Children who have not reached the age of majority or citizens with mental disabilities cannot donate housing, and persons who guard them cannot make donations on their behalf.
2. Medical employees cannot receive housing as a gift.

• Legal entities also cannot give real estate to each other.
• Is it possible to terminate the agreement if the documents have already been submitted for registration to the relevant state authorities? organs? To do this, you need to write an application and the registration of the right will be stopped. What to do if the transaction has already been registered in Rosreestr? When registering a refusal to donate, you will need the following documents:

• statement of refusal,
• gift agreement,
• agreement that the recipient refuses to accept the apartment,
• identification documents of the parties,
• power of attorney, if a representative acts on behalf of the parties to the transaction,
• USR extract,
• consent of all interested parties to the refusal,
• payment of state duty,
• property documents.

The documents are submitted to the Rosreestr authorities, where the refusal of the deed of gift is formalized.

Consequences of the donee’s refusal of the deed of gift

Refusal of the gift before its transfer entails recognition of the DD as terminated. The property remains with the donor. But in some cases, on the basis of clause 3 of Art. 573 of the Civil Code of the Russian Federation, the donee will have to compensate for the real damage caused to the donor by the refusal.

Real damage refers to the donor’s investment to restore the violated right or damaged property.

For example, the costs of delivering a gift, preparing it, and notarizing a deed of gift are reimbursed.

The donor has no right to demand compensation for lost profits or the value of a gift lost by the courier service. In the latter case, compensation is recovered from the guilty company. It is also impossible to recover average earnings for the time spent preparing a gift instead of working if the donor had to take unpaid leave or works as an individual entrepreneur.

How to refuse a deed of gift after its registration

It is possible to refuse a deed of gift after registering the transfer of ownership of an apartment by going to court . Only after a court decision has been made, you need to contact Rosreestr and terminate the deal.

Refusal of a deed of gift after its registration is possible at the initiative of one of the parties to the transaction (donor or donee) and government bodies (for example, prosecutors).

Therefore, there cannot be a unilateral refusal

This means that only the transfer of ownership of the apartment needs to be registered. The gift agreement comes into force from the moment it is signed by both parties.

You can challenge a completed transaction within one year from the date of its registration. It can be declared void within three years.

Refusal of the donee and cancellation of the donation

Cancellation of a donation and refusal of the donee are completely different procedures, but they are carried out unilaterally.

To cancel, you will need to go to court if there are grounds provided for in Art. 578 Civil Code of the Russian Federation:

• commission by the donee of a crime against the life and health of the donor and his relatives;
• careless handling of a gift that is of non-property value to the former owner, if there is a risk of irretrievable loss;
• death of the donee before the donor, if the possibility of cancellation is provided for in the deed of gift;
• intentional deprivation of life of the donor by the donee;
• transfer of the gift within six months after the donor is declared bankrupt. the claim is made by the creditors of the previous owner if he is engaged in entrepreneurial activities.

Cancellation is also possible for other reasons:

drawing up a deed of gift under the influence of threats, failure to understand the consequences of the transaction by the donor, execution of a deed of gift by an incapacitated or partially capable person in violation of legal norms, failure to comply with the requirements of the contract.

Important! Unlike cancellation, where grounds are required, refusal of the donee from the transaction is possible regardless of the reasons. It is carried out in a peaceful manner, because the donor has no right to oppose the will of the donee. In addition, to re-register ownership in Rosreestr, the appearance of both parties will be required, and in the absence of the donee, the employees will not accept the documents.

Abandonment of real estate after registration of ownership is possible in court if the donor does not want to accept the gift back peacefully.

Is it possible to revoke a certified deed of gift?

Yes, it is possible, but for this, according to Article 578 of the Civil Code of the Russian Federation, certain grounds are required. However, it is first necessary to check whether there is a violation of the interests of third parties. If we take real estate as an example, it is necessary to clarify whether it is pledged. The recipient simply could not have known this fact, but this means that the transaction was made in clear violation of the law, if there was no consent of the interested party.

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The deed of gift can also be revoked if:

• It was drawn up in violation of the interests of minors, who are also owners. Such transactions are carried out by guardians, since the person is under 18 years of age. However, such a transaction deprives them of large property, which goes beyond the interests of the children. There may also be cases when guardians want to break the law by becoming property owners without the additional consent of child protection authorities;
• The deal was not completed. When an agreement is concluded, it becomes necessary to register it in the prescribed manner at the Registration Chamber. In the absence of registration, the donee does not receive a certificate of ownership of the property. Or the transaction will not be completed if one of the parties dies during its execution;
• The property did not belong to the donor.

If we turn to Article 578 of the Civil Code of the Russian Federation, then it contains such grounds for canceling the deed of gift as:

An attempt on the life of the donor by the donee, or on relatives or friends of the donor;

Improper handling of property, the result of which may be the irretrievable loss of this property, which is so important and carries non-material value for the donor;

Bankruptcy of the legal entity that made the act of donation;

The presence of certain rules in the gift agreement (for example, cancellation of the gift if the donor survives the donee);

After a decision is made to cancel the deed of gift, the donee is obliged to return the donated property if the natural appearance was preserved at the time of cancellation of the donation. If the property was damaged, the donor has the right to demand compensation for damage through the court.

Attention!

You have 3 years to challenge the donation transaction or invalidate it. This period begins from the moment of its conclusion, and you can appeal it by going to court.

Arbitrage practice

When submitting an application to the court, the requirement is “recognition of the contract as invalid, cancellation of entries in the Unified State Register of Real Estate”, if we are talking about challenging a deed of gift for real estate. It is difficult to cancel a deal even if there are grounds, but sometimes the requirements are satisfied. This is influenced by the circumstances of the case, the legal literacy of the plaintiffs and other factors.

Let's look at a few examples of court decisions, according to which the parties to the donation were returned to their original position, and the donated property was returned to the donors:

• Decision No. 2-1197/2018 2-13/2019 2-13/2019(2-1197/2018;)~M-964/2018 M-964/2018 dated July 25, 2021 in case No. 2-1197/2018 ;
• Decision No. 2-2844/2019 2-2844/2019~M-2228/2019 M-2228/2019 dated July 12, 2021 in case No. 2-2844/2019;
• Decision No. 2-3438/2019 2-3438/2019~M-1925/2019 M-1925/2019 dated June 10, 2021 in case No. 2-3438/2019.

How to refuse a donated share in an apartment

The procedure for giving up a share in an apartment is practically no different from giving up a donated entire apartment. The donee may refuse the share before its transfer.

This means that after the transfer of the right to a donated share in an apartment is registered in Rosreestr, it is almost impossible to refuse such a gift.

The renunciation of the share is made in writing . In this case, the document must contain a clear description of the item that the donee is refusing (what is the share or its size in the apartment, its location).

Lawyer's answers to frequently asked questions

Is it possible to relinquish an apartment through the court?

Yes, if the ownership has already been registered, and the donee wants to return the housing to the donor who does not agree with this.

Can the donor refuse to fulfill the contract of promise of gift?

Yes, based on Art. 577 of the Civil Code of the Russian Federation, if after drawing up the deed of gift the financial situation of the donor has changed, and the transfer of the gift will entail a significant deterioration in his standard of living.

Does the recipient need to explain the reasons for the refusal to the donor?

No, a citizen has the right to refuse a gift without giving reasons.

Can a minor recipient refuse to make a gift?

Maybe, but with the consent of the parents.

Is it possible to refuse a gift through the court upon the death of the donor? Who will be responsible?

Yes. According to Art. 581 of the Civil Code of the Russian Federation, the obligations of the donor under the contract of promise of gift are transferred to the heirs. They are the defendants.

Cancellation of a gift agreement

If the subject of the donation was real estate, for example, an apartment that had registration data, then the refusal of the deed of gift for the apartment is also subject to registration. In turn, the donor may demand compensation for losses, material damage, through the refusal of the recipient to accept material assets for free. Example of losses A sister gives a house as a gift to her brother, but the relative refuses to receive it two days before the day the property is transferred into his hands. The day before, the donor, at his own expense, made repairs to the house, and also transported his property to a new place of residence, 2000 km from the object of the donation. The donor suffered serious losses during transportation and finishing, and therefore has the right to demand compensation for damage. An important point is to confirm the words with documents: checks, invoices, receipts, which indicate the amount, date, time of payment, and the name of the payer. In practice, this can lead to disputes between the donor and the recipient, who have different assessments of the current situation. If no agreement is reached, the dispute regarding the claim of the interested party is considered by the court; 3) there must be a causal connection between a change in the property or marital status of the donor or his state of health and a significant decrease in his standard of living. That is, for the norm in question to apply, the decline in the donor’s standard of living must be caused only by the listed circumstances. Only if all the above conditions are met, the donor receives the right to unilaterally refuse to execute the gift agreement. The norm in question can be applied in cases where an individual acts on the donor’s side, since such concepts as “property” or “marital status”, “state of health”, “standard of living” are applicable only to citizens.

After the conclusion of the agreement, the donee becomes the full owner of the gift and therefore he can dispose of it as he wishes: donate, exchange, sell or destroy Sample of registration A sample of formalization of refusal of donation can be expressed in several forms: Verbal In this case, a verbal refusal will be enough - nothing more not required. Written If the need for refusal arose after the conclusion of the contract, but before its conclusion, then in order to carry out the operation it is necessary to draw up a written document in any form, which will reflect the corresponding fact indicating the reasons. Moreover, it is worth considering that if the agreement was certified by a notary, then the refusal will need to be subjected to such an operation. Judicial application This form is suitable for cases where the cancellation and subsequent refusal of the gift is carried out after the conclusion of the contract.

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