Donation agreement for a share of a residential building

Features of donating a share of a house

Content

A donation is a gratuitous transaction, according to which the owner of real estate (donor) transfers ownership rights to a second party - the donee.

The procedure is regulated by Ch. 32 of the Civil Code of the Russian Federation. The donor has no right to make counterclaims: ask for money in return, demand the provision of goods or services.

You can donate either the entire house or a share in the ownership.

It is important to consider several points:

• a gift from an individual to a legal entity or vice versa is allowed;
• gifts between businesses are prohibited;
• you can donate a share in the house without the consent of other owners: it is required only for sale, when they are given the right of first refusal;
• the transaction will require the consent of the donee - he has the right to refuse before receiving the gift (Article 573 of the Civil Code of the Russian Federation);
• To donate a share of a house, you can use any type of agreement: real, when the second party re-registers ownership immediately after signing, or consensual, implying the execution of a contract of promise of donation. In the latter case, execution of the transaction begins on the date or event specified in the document.

Important! The donation agreement for a share of a house (hereinafter referred to as DD) is drawn up in writing. It will be required in the future to register ownership of the new owner - the donee.

Share requirements

It is important to consider that a share does not mean specific premises, but the entire house, but a citizen owns it only within the established share. It is determined by agreement with the remaining owners, or in court.

People can independently agree on who will live in which room, and, if necessary, enter into agreements on the procedure for using housing. In exceptional cases, it is possible to allocate a share in kind, when specific premises are assigned to the owners.

It is important that the allocation of shares be registered with Rosreestr. If shares are allocated by agreement, the parties must submit it for registration: only then will they be able to give, sell or exchange their property without problems.

Donation of a share in maternity capital

If a house is bought or built using capital, each family member is allocated shares. The corresponding obligation is signed by a notary and transferred to the Pension Fund.

To allocate shares to the husband and children, a gift agreement is often used. Subsequently, the house becomes common property within six months after the transfer of funds from the Pension Fund to the seller, payment of the last installment under the purchase and sale agreement, and full settlement with the housing cooperative or other construction organization.

House share donation agreement

The document is drawn up in any form and subsequently requires notarization. It is necessary to take into account: there is no separate provision that obliges the parties to contact a notary, however, further steps for registration through the MFC or Rosreestr require the provision of only a certified document. When contacting a notary office, applicants can submit to the specialist a completed form and accompanying documents. You can also create a document with the direct participation of a notary. In each case, payment of the state fee becomes a mandatory condition.

Despite the admissibility of drawing up an agreement in free form, it must contain a number of mandatory conditions. Among them:

• an indication that the transaction is free of charge - if this fact is not noted, the procedure for transferring rights may be perceived as insignificant or invalid, which is why there is a risk of cancellation;
• the donor is only an adult and capable citizen of Russia;
• mandatory conditions - description and characteristics of the transferred object, information about persons registered in the house (or share), other information that the recipient must know without fail;
• special conditions - indication of market or inventory value (at the request of the parties), information about existing encumbrances and prohibitions;
• conditions for termination of the transaction - the donor can exercise the rights noted in Articles 577 and 578 of the Civil Code, and the donee, in turn, - Art. 573 Civil Code of the Russian Federation.

The donor can also note the conditions for allocating a share in the house and additional information regarding other shared owners. Before implementing the procedure, it is important to obtain the consent of the other owners of the house. Otherwise, any of the owners can protest the transaction in court. This possibility is secured by law.

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Note!

After preparation, the document is certified in accordance with notarial standards and is subject to transfer to Rosreestr. If it is not possible to contact the registrar directly, then you can do everything necessary in the department of the Multifunctional Center. The time frame will increase, but not significantly.

To whom can you give a share in a house under a gift deed?

After allocating the share, the citizen becomes the full owner.

He has the right to give it to any person:

• child, parent, other close relatives;
• spouse;
• to a third party.

If the child is under 14 years of age, the donor parent has the right to sign for him. If the donor is an outsider, the transaction is agreed upon with the legal representatives. Children over 14 years old sign independently, but with the consent of their parents.

Note! The share is allocated only in conjunction with the division of the land plot. For example, if 2 people own a house, they own ½ share and land respectively. Allocation or donation of housing without a plot of land is unacceptable.

Donating a share of a house to a minor child

The law allows the transfer of real estate through a gift transaction for citizens of the Russian Federation under the age of 18. It is important to comply with some key conditions:

• Consent to accept a gift must be given not by the child, but by his legal representatives - parents, guardians or other persons, taking into account paragraph 12 of Article 5 of the Criminal Procedure Code of the Russian Federation;
• if the donee is a minor (under 14 years old), then legal representatives leave confirming signatures in the accompanying documents;
• if the donee is a minor (from 14 to 18 years old), then the signatures are affixed independently, but under the supervision of representatives;
• Minor citizens, if they do not fall under the category of close relatives, are not exempt from paying personal income tax, however, if there is no possibility of earning money on their own, tax payment obligations are transferred to representatives.

Otherwise the deal is no different from the standard one. It is recommended to note in the contract the status of the recipient and his age.

Note!

If there are family ties, their fact must be documented.

Is it possible to draw up a deed of gift for a share in a house without a notary?

Despite the fact that the consent of the owners is not required to donate a share, the DD must be certified by a notary.

His signature will not be needed only in a few cases:

• all owners simultaneously donate their shares;
• The house has one owner.

If, in violation of the law, you sign a deed of shares without a notary, it will not be accepted by Rosreestr, and it will not be possible to register the ownership of the donee.

Legal advice: even if certification of the deed of gift by a notary is not necessary, it is recommended to sign the agreement in his presence. This will avoid many problems and reduce the risk of challenging the deed of gift.

How much do notary services cost?

For mandatory notarization, a fee is paid in accordance with Art. 333.24 of the Tax Code of the Russian Federation: 0.5% of the contract amount, not more than 20,000 rubles.

The state duty is usually determined from the cadastral value.

Example:

The cadastral value of the share is 1.5 million rubles. It is given to another person. How much will you have to pay:

1,500,000 x 0.5% = 7,500 rub.

If it is not necessary to certify the DD, but the parties turn to the notary at their own request, instead of the state fee, a notary fee is paid in accordance with Art. 22.1 “Fundamentals of legislation on notaries”:

1. Alienation of property in favor of relatives: spouse, children, parents, grandchildren. For a transaction amount of up to 10 million rubles. – 3,000 + 0.2%. Over 10 million – 23,000 + 0.1%.
2. For other persons with an amount up to 1 million – 3,000 + 0.4%. From 1 to 10 million – 7,000 + 0.2%. Over 10 million rubles. – 25,000 + 0.1% of the amount exceeding 10 million. For residential premises – maximum 100,000 rubles.

Example:

Two owners each give ½ share in the house to their child, their son. The total cost of shares is RUB 3,000,000. How much will you have to pay:

3,000,000 x 0.2% = 6,000

6,000 + 3,000 = 9,000 rub. – total amount.

Features of donating a share of a residential building

A residential building is an individually defined building consisting of living rooms and other auxiliary premises. This type of real estate is most often jointly owned by several persons.

For your information, it is much easier to divide a residential building than an apartment into shares, assigning each share its own owner. In addition, owners of shares in the ownership of a residential building can live quite happily side by side, even without being relatives, which, as a rule, cannot be said about strangers living in the same apartment.

The donation agreement for a share of a residential building is as follows: the donor transfers or undertakes to transfer to the opposite party part of the ownership of the residential premises , and such a transfer is carried out absolutely free of charge. If the transaction represents a promise to transfer part of the house to the donee, it is necessary that such a promise:

• was done in writing (as follows from paragraph 2 of Article 574 of the Civil Code of the Russian Federation);
• reflected a clearly expressed intention to transfer real estate as a gift (the subject of the donation is subject to maximum specification).

If among the share owners there are minor children (under 14 years of age) or citizens recognized by the court as incompetent, then making a gift on their behalf by legal representatives is prohibited by law . It is also unacceptable to donate part of a residential building in favor of:

• workers of social, medical and educational organizations , persons in such institutions, as well as their spouses or relatives;
• state and municipal employees (if this is related to the official position or official responsibilities of such employees).

How to draw up a deed of gift for a share in a house between close relatives: step-by-step instructions

The agreement is signed by two parties - the donor and the recipient. If one or both cannot be present at the transaction, notarized powers of attorney are issued for one or more representatives.

Legal advice: it is advisable to agree in advance on the terms of the transaction with the donee and decide when and where to sign the deed of gift.

Step 1: collecting documents

The donor must collect the documents: the recipient will only need a passport.

What the share owner will need:

• a document confirming the basis for the emergence of ownership rights: agreement of exchange, purchase and sale, deed of gift, certificate of inheritance, etc.;
• extract from the Unified State Register of Real Estate;
• extract from the house register;
• passport;
• a document confirming the relationship if the share is given to a close relative;
• notarial consent of the donor’s spouse, if the share was acquired using common funds during the marriage;
• birth certificate of the child, if the property is gifted to him.

You should also prepare a marriage certificate; the donor’s spouse is involved in the transaction.

Step 2: drawing up a gift agreement

The deed of gift is drawn up independently, but you can seek help from a lawyer or notary.

In the latter case, expenses will increase by 5,000-20,000 rubles. depending on the details of the transaction. In law firms, prices are more affordable, and DDs are drawn up for 1,000-3,000 rubles.

Contents and sample agreement for the donation of a share in a house

The legislation does not establish requirements for DD, but it is important to include all information about the transaction, otherwise the registrar will not accept the documents.

What information will you need:

• Full name, date of birth, passport details of the parties;
• address of the house in which the donated share is located, its size; room area, cadastral number;
• size, cadastral number of the land plot;
• the owner’s intention to donate the share free of charge;
• start date of contract execution: after signing or on a specific day;
• responsibilities, duties, rights of the parties;
• conditions for changing, terminating the DD.

At the end, the donor and recipient sign. The agreement is drawn up in at least three copies: one remains with the citizens, the third is transferred to Rosreestr. If people contact a notary, a fourth copy will be needed - it remains in storage in the archive.

Sample agreement for donation of a share of a residential building:

Step 3: visit a notary

In most cases, the donation of a share is certified by a notary, so the DD is signed in his presence. He will first determine the legal capacity of the parties and explain the consequences of the transaction. After signing, his signature and seal are affixed.

Important! An agreement not signed in the presence of a notary will not be certified. If desired, citizens can submit documents for registration through it; the service has been provided free of charge since 2020.

Step 4: registering a new owner

After collecting documents and signing the DD, you need to submit documents to re-register ownership. The presence of both parties is required.

To register, you need to contact Rosreestr or the MFC at the address of the location of the property in which the share is being donated.

Documentation

You will need the documents presented above. Additionally, a deed of gift is provided: the registrar puts marks on it, performs registration actions, then returns everything to the new owner.

State duty

For re-registration of property rights, the state duty is paid by the donee. Individuals pay 2,000 rubles, legal entities – 22,000 rubles.

The procedure for registering a donation agreement for a share in a house

The procedure depends on the nature of the donation of a share in the house.

There are two options:

• notarial form of a gift agreement - common shared property of two or more co-owners;
• simple written form (without a notary) – if the owner owns the whole house or the share passes to a relative from the jointly acquired property of the spouses.

If your case requires a notarized form of deed of gift, you will have to visit a notary and pay for his services. If this form is not required, you can register the transaction directly with the MFC or Rosreestr.

Procedure

The general instructions are as follows:

1. Find the donee - close relatives, second spouse, friends, third parties.
2. Agree on the nuances of the transaction - discuss counterclaims of a non-property nature (for example, transfer of an object after graduation from a university or wedding).
3. Collect documents - you will need extracts, certificates, statements (see below).
4. Contact a lawyer or notary - it is best to entrust the preparation of a deed of gift to a knowledgeable person.
5. Draw up a gift agreement - in a simple or notarized form, depending on the situation (you can draw up a preliminary gift agreement - about what it is and how to write it, read our article “Preliminary agreement for donating a share of an apartment to a minor”).
6. Register the transaction with Rosreestr - yourself or through a notary (for a fee).
7. Pay the tax (see below).

The steps listed may vary depending on your case.

Rights and obligations of the parties

Before signing a deed of gift for a share of a residential building, you need to make sure that the transaction is beneficial to both parties. Participants must be aware that they are acting voluntarily. If registration has not yet been completed, the donee has the right to refuse to receive the gift (Article 573 of the Civil Code of the Russian Federation). The donor has a similar right - read more about this in the article “Cancellation of a deed of gift for a share.”

The rights and obligations of the donor may be as follows:

• obtain the consent of other owners - if the share in the house belongs to the spouses;
• register a plot of land next to the house and include it in the transaction (see “Agreement on donation of a share of a house and a plot of land”);
• allocate a share of the house in kind - in the form of a separate room;
• transfer the share in the right to the selected candidate;
• indicate conditions of an intangible nature;
• refuse to fulfill the donation on the basis of Art. 577 Civil Code of the Russian Federation.

The donee also has the rights and obligations: to accept the object of the donation, register with Rosreestr and pay income tax.

Documentation

Donation is considered a bureaucratic procedure, so it is preceded by the collection of documents:

• copies of the deed of gift – according to the number of parties + one notary and registration authority each;
• ID cards;
• documents for the property or for the donated share;
• registration certificate of the house - issued by the BTI;
• archival extract from the house register - a certificate of the number of residents;
• act of permission from the guardianship authority - if there are minor children in the house;
• the consent of the second spouse is certified by a notary;
• information about kinship - birth certificate, marriage certificate, adoption certificate;
• power of attorney + copy of the representative (depending on the situation).

An auxiliary document is a deed of transfer of a “gift”. It will be needed if the share is allocated in kind (room). It is written according to a model indicating the size of a residential building in the house.

Deadlines

Paperwork and registration with Rosreestr takes from 2 weeks to a month . However, the time frame may increase. For example, by allocating a share in kind.

Price

The choice to donate does not exempt you from expenses. Applicants will have to pay notary services, state fees and taxes.

Let's calculate how much a deed of gift for a share in a house costs:

• state duty for notarization of the contract - 0.5% of the share price , but ranging from 300 to 20,000 rubles;
• Rosreestr state duty - 2,000 rubles for re-registration of ownership (important: if there are four recipients and they receive ¼ shares, each of them will pay a quarter of the state duty, i.e. 500 rubles);
• notary services - according to the office price list, from 2,000 rubles and above.

Total expenses can reach 7,000 rubles, but more often the amounts reach 10,000 rubles.

Taxation

Nobody canceled taxes!

Receiving a gift means enrichment in the form of a share of a residential building. Hence, the recipient is obligated to pay income tax - 13% of the value of the share . The amount is calculated based on the cadastral price, but in some cases the valuation may be market value.

Are there any benefits? Tax benefits apply to family members and close relatives of the donor (Clause 18.1, Article 217 of the Tax Code of the Russian Federation). They are exempt from paying tax, provided that they confirm the fact of kinship - originals or duplicates of documents on blood/marital ties will be needed.

Do you intend to draw up a deed of gift for a share in a private house?
Contact our lawyers and get a free consultation. Expert assistance is suitable in cases where you do not plan to contact a notary. Drawing up a deed of gift is simple in words only - in fact, there are pitfalls here: mistakes, typos, ignorance of the laws, lack of evidence, missed deadlines. Lawyers will advise you on what to include in the contract, provide an up-to-date list of documents and assess the risks of your transaction. Leave an online application directly on the website or call the hotline! Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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Taxes when donating a share in a house

Receiving real estate or a share in property is legally considered profit, and personal income tax of 13% will have to be paid. The 3-NDFL declaration is submitted to the Federal Tax Service by April 30 of the year following the year the deed of gift was signed, and the money is paid by July 15.

An exception is the receipt of property as a gift by a close relative of the donor: a child, spouse, parent, full or half brother, sister. They do not pay taxes, it is not necessary to submit a declaration (Article 217 of the Tax Code of the Russian Federation).

Donating a share of a house to a relative

As a rule, a gift can be concluded between any persons (except for the cases specified in Article 575 of the Civil Code of the Russian Federation), but most often such transactions are concluded between relatives. At the same time, the current legislation of the Russian Federation divides all relatives into two categories: close and other.

Art. 14 of the Family Code of the Russian Federation (RF IC), close relatives include spouses, parents, children, grandchildren, grandparents, adoptive parents, adopted children, full and half brothers and sisters, i.e. having one or both common parents. All other relatives belong to others.

Donating a share of the house to any of the specified relatives does not have any special features during registration. In deeds of gift between such persons, it is possible to indicate the presence of family ties, i.e. degree of relationship and the possibility of not indicating the value of the object of donation. As a rule, this applies to close relatives, since it is for them that tax exemption is provided (clause 18.1, clause 1, article 217 of the Tax Code of the Russian Federation).

Challenging a contract for donating a share in a house

You can challenge a deed of gift for a share in a house if there are grounds specified in Art. 578 and other provisions of the Civil Code of the Russian Federation:

• commission by the donee of a crime against the life and health of the donor: beatings, infliction of minor, moderate, serious bodily injury, etc.;
• death of the donor due to the fault of the donee (DD is canceled by the heirs);
• signing of a DD by an incapacitated or partially capable donor;
• completion of a transaction under the influence of physical or psychological violence on the part of the donee or a third party;
• misleading the owner regarding the nature of the transaction.

The donor's creditors can also go to court if the share was purchased with money from business activities, and the citizen himself signed the deed of gift within six months after the bankruptcy decision was made.

Donating a share of a house to a child

The intention to transfer a share of the house to children often arises from parents, grandparents, godparents and other close people. Some nuances should be taken into account:

1. Children cannot sign an agreement themselves or decide to accept real estate as a gift due to incapacity. The agreement is signed by the parent, adoptive parent, guardian or trustee. If a child has reached the age of 14 , he can independently accept a gift only with the written consent of his legal representative. In this regard, information about the representative is indicated in the gift agreement.
2. Property of children under 14 years of age cannot be donated by their legal representatives.
3. If the child is not a relative of the donor, he must pay tax on the income. In the absence of funds, the tax is paid by the child’s legal representative (Clause 2 of Article 27 of the Tax Code of the Russian Federation).

Compliance with the above conditions is mandatory for the transaction to be recognized as valid.

Arbitrage practice

It takes people several months to challenge gift agreements, and it is not always possible to achieve what they want.

But in judicial practice there are several examples of deeds of gift being declared invalid:

• Decision No. 2-189/2019 2-189/2019~M-159/2019 M-159/2019 dated July 5, 2019 in case No. 2-189/2019;
• Decision No. 2-433/2017 2-433/2017(2-4939/2016;)~M-5027/2016 2-4939/2016 M-5027/2016 dated February 7, 2020 in case No. 2-433/2017 ;
• Decision No. 2-189/2019 2-189/2019~M-159/2019 M-159/2019 dated July 5, 2019 in case No. 2-189/2019

As a result of the satisfaction of the claims, the property was returned to the donors. the ownership rights of the donees have been terminated, changes have been made to the registration records of the Unified State Register of Real Estate.

The procedure for registering a deed of gift for a share in a house

The law provides for the following options for registering a transaction:

• with a notary certificate - if the donor owns part of the house in shared ownership;
• without notarization - if the owner owns the house as an individual property or gives a share in the common property to a co-owner.

Example. Spouses M. purchased a residential building during their marriage. The husband decided to transfer his share to his wife. For this purpose, the spouses executed a gift agreement. A contract for the transfer of joint ownership rights is not subject to notarization. Therefore, the deed of gift was transferred to Rosreestr by the spouses to register the transfer of rights. The woman became the sole owner of the house.

Important! The owner and recipient may contact a notary on their own initiative, if this is not provided by law. However, in this case, the registration fee increases significantly.

Before registering a donation, the owner can:

• register a share of the plot for transfer together with a share in the house;
• allocate a part of the house in kind (in the form of an apartment);
• determine the procedure for using part of the residential building.

Algorithm of actions

The main actions and expenses for registering a donation are borne by the donor. The recipient is only required to visit a notary and submit an application for state registration.

Procedure:

1. Collection of documents for registration of the transaction.
2. Registration of the contract.
3. Contract signature and notarization.
4. State registration in Rosreestr.

Collection of documentation

Before contacting a notary, you must prepare the following package of documentation:

• owner's civil passport;
• birth certificate or civil passport of the recipient;
• legal data (contract of gift, exchange, purchase and sale, certificate of inheritance rights);
• extract from the Unified State Register of Real Estate;
• technical passport for the house from BTI;
• notarized consent of the spouse (if the object was acquired during the marriage).

If a representative acts on behalf of the donor, then it is necessary to provide a notarized power of attorney and a civil passport of the authorized person.

If a representative acts on behalf of the donee, then a notarized power of attorney is required only if the recipient has full legal capacity. The parents act on behalf of the minor donee. The interests of an incapacitated person are represented by a guardian.

Registration of deed of gift

The donor independently makes the decision to transfer the object as a gift. The only person whose opinion is additionally needed is the recipient.

A contract can be drawn up by:

• the owner independently (if the transaction is formalized in simple written form);
• notary (if the donor is the owner of the share);
• lawyer (if a citizen cannot draw up a contract on his own).

To avoid challenging the contract, it is advisable to involve a lawyer in drawing up the deed of gift. A specialist will help you prepare the document properly.

Notarization

Contacting a notary is required in the following cases:

• the donor is the owner of the allocated share in the residential building;
• the donor is the sole owner, but the recipient is a minor;
• the donor wishes to formalize the contract in notarial form.

State registration

Since 2020, the responsibility for transferring documents to Rosreestr falls on the notary. However, the specialist transfers the contract for registration only if there is a notarized deed of gift form.

If the agreement is drawn up in simple written form, the parties submit documents for registration independently. The contract can be submitted:

• directly to the authorized body;
• through the MFC;
• through the Rosreestr website.

As a rule, the costs of state registration of a deed of gift are borne by the recipient of the property. From the moment of receiving an extract from the Unified State Register, the donee becomes the full owner of the object.

Lawyer's answers to frequently asked questions

Is it possible to donate a share of a house with an encumbrance?

Depending on the type of encumbrance. If the share is pledged to the bank, donation is possible, but with its consent. If the encumbrance means a seizure from the FSSP, the donee will not be able to re-register ownership.

Is it possible to give a share in a house with the right of residence of the donor?

Yes, having previously agreed with the other party.

The house is in shared ownership. Another owner wants to give a share to his son, with whom I am on bad terms. Can I prohibit a transaction?

No, other owners do not have the right to interfere with the donation.

Is it possible to donate ½ of a house with utility debts?

Yes, but the debts will remain with the previous owner.

As a result of the division of property, the court awarded my husband and I each ½ share in the house. Can I give it to my mother if the property was purchased during marriage?

You can. Purchasing during marriage does not play a role, because... division has been made.

Rules for registering a deed of gift for a share in a house

Shared ownership of a property is a popular form of ownership in 2020. One of the options for alienating shares is donation.

As a rule, a deed of gift for a share is drawn up in favor of a co-owner. Thus, the part of one of the property owners is enlarged.

Example. Irina and Kirill each inherited ½ share of a residential building. The recipients entered into inheritance and registered rights to the property. Kirill decided to move to another city. In order not to burden himself with caring for the house, he donated his share to Irina. As a result, Irina became the sole owner of the property.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

A gift deed can only be executed in relation to a specific object. Thus, in order to conclude a deed of gift for a share in a residential building, it is necessary to allocate it. Transfer of ownership is possible only after state registration of part of the house in Rosreestr.

Donation is a one-sided transaction. However, the owner must obtain the consent of the recipient to transfer ownership. The donee has the right to refuse to receive a share.

A feature of the deed of gift is its complete gratuitousness. The owner cannot oblige the recipient not only to pay for the share or provide a service, but also to pay the costs of re-registration of the property.

A citizen has the right to formalize a donation in relation to a share of a residential building or together with a share in a land plot.

Form of share donation agreement

A donation accompanied by the transfer of a gift to the donee may be made orally, except in the following cases:

• The agreement for donating a share must be made in writing in cases where: a) the donor is a legal entity and the value of the gift exceeds three thousand rubles; b) the contract contains a promise of a gift in the future.
• The share donation agreement is subject to state registration.

The rule on state registration of transactions with real estate, contained in Article 574 of the Civil Code of the Russian Federation, is not subject to application to contracts concluded after March 1, 2013 (Federal “law” dated December 30, 2012 N 302-FZ).

The transfer of a share of the house is carried out through its delivery, symbolic transfer (handing over keys, etc.) or delivery of title documents.

Sample agreement for the donation of a share of a house owned by the donor on the right of common shared ownership