Apartment donation agreement by power of attorney

When might a power of attorney for donation be needed?

Content

A power of attorney is a document according to which one citizen (principal) authorizes a second citizen (attorney) to represent interests before a third party.

It may also be needed when donating in several situations:

• The donor cannot be present at the transaction in person: he is sick, is abroad, etc.;
• The donor is a legal entity, and the founder or director cannot formalize the deed of gift personally. The document appoints a legal representative.

The form of the power of attorney depends on the type of transaction. According to Art. 574 of the Civil Code of the Russian Federation, a gift agreement (hereinafter referred to as DD) is drawn up in writing if real estate is being donated, the donor is an organization and the value of the gift exceeds 3,000 rubles, or the citizen promises to give a gift in the future. In other cases, an oral transfer of the gift is sufficient.

Important! If the DD requires notarization, then the power of attorney must also be certified by a notary. A power of attorney agreement without a certificate is signed only in a notary office.

Legal Advice: Even if the law does not require a notarial form, it is better to contact a notary. The presence of his signature will significantly reduce the likelihood of challenging the transaction and protect the interests of both parties - the donor and the donee.

The concept of a transaction and the deed of gift in 2020

Based on the description presented in paragraph 1 of Article 572, the concept of a gift agreement is understood as an oral or written agreement, according to which one party, called the donor, voluntarily and free of charge transfers in favor of the other party, the donee, certain property benefits, rights, or releases the receiving party from the property obligations imposed on it.

The gratuitous and irrevocable nature of the transaction, at the same time, presupposes the complete absence of any counter-property representations for the received gift on the part of the donee. The presence of such a condition automatically entails the nullity of the contract and the invalidity of the transaction (according to paragraph 2 of Article 170 of the Civil Code of the Russian Federation).

Important : Not all citizens can still participate as parties to the deed of gift in 2020. For example, based on the content of paragraph 2 of paragraph 575 of the article, minors and incapacitated citizens, as well as legal representatives of these persons, cannot act as a donor in transactions with the value of an object exceeding 3,000 Russian rubles.

At the same time, today it is prohibited to accept expensive gifts:

• workers of social institutions;
• municipal employees;
• employees of social organizations;
• civil servants;
• medical workers.

EVERYONE NEEDS TO KNOW THIS:
Dacha donation agreement - 2020 form

In addition to these persons, donation is prohibited in cases of an attempt to conclude this transaction between commercial organizations (Clause 4, Article 575 of the Civil Code of the Russian Federation).

It is worth noting that, although the gift agreement is bilateral in nature, it still has unilateral obligations (the obligation of the donor to transfer the gift to the donee). In this case, as an exception, deeds of gift may act, including formal conditions for the donee (for example, while preserving the donor’s right to live in the apartment donated to him until death). However, such special conditions should not create property obligations.

Also, in Article 572 of the Civil Code of the Russian Federation, the legislator allows the conclusion of a gift agreement not only of a real gift agreement, which is executed at the time of conclusion of the transaction, but also of a consensual one, also called a gift promise agreement, according to which the donation occurs within the period specified in the agreement, in the future.

It is also perhaps worth noting the fact that the deed of gift cannot contain continuing or lasting rights and obligations that apply after the actual execution of the contract.

About the form of the gift agreement

According to the generally accepted rule, which is established by Article 574 of the Civil Code of the Russian Federation, most of the donation transactions concluded can be formalized by an oral agreement. At the same time, according to paragraphs 2 and 3 of Article 574 of the Civil Code, there are cases when such transactions must be formalized exclusively in writing. Let's look at them.

1. Donation of real estate . The mandatory written form of such deeds of gift is due to the legal consequences that arise when concluding such transactions, namely, the need to re-register property rights for the new owner (according to paragraph 1 of Article 131 of the Civil Code of the Russian Federation). State registration is carried out after the parties provide the necessary documents to Rosreestr employees.
2. In a donation transaction, a legal entity acts as a donor , and the total market value of the object of donation is more than 3,000 Russian rubles (according to paragraph 2 of Article 574). The described rule, by the way, acts as an exception to another article (Article 161 of the Civil Code of the Russian Federation), according to which every transaction concluded by a legal entity must be formalized in writing!
3. The parties draw up a consensual gift agreement . In addition to the written form, the promise of donation, according to paragraph 2 of Article 574 of the Civil Code, requires a description of the object of the gift, as well as an expression of the will of the donor to freely, irrevocably and voluntarily transfer this object within a specified period or to fulfill another obligation established in the contents of the contract (2 paragraph 572 of Article Civil Code of the Russian Federation).

What can you give by proxy?

Citizens and legal entities can draw up deeds of gift for different types of gifts that belong to them as property:

Features of donation by power of attorney

The main rule regarding the power of attorney is established in paragraph 5 of Art. 576 of the Civil Code of the Russian Federation. According to it, the document must contain information about the donee and the subject of the donation (gift). Without such information, the power of attorney is void, and it is impossible to draw up a DD using it. For example, it will not be accepted when registering a transfer of ownership in Rosreestr, and in general the transaction will be easier to challenge.

There are other rules:

• The donor's representative does not have the right to make transactions in relation to himself and act as the donee (clause 3 of Article 182 of the Civil Code of the Russian Federation);
• Powers of attorney on behalf of citizens in prison, in military service, in stationary social organizations, with the signature of an authorized leader, are equivalent to notarial ones. He certifies the document, because a person does not have the opportunity to come to a notary’s office;
• To transfer a gift from a legal entity, a power of attorney is issued by the head or other authorized citizen in accordance with the constituent documents and legislation (Article 185.1 of the Civil Code of the Russian Federation).

Note! If an attorney acts on behalf of the company when donating by proxy, you will need not only the signature of the manager, but also a seal.

Power of attorney to accept as a gift (apartment, share in an apartment)

City of Moscow, Russian Federation On the eleventh of July two thousand ________
I, gr. SNIMSCHIKOV SERGEY PAVLOVICH, born October 10, 1982, place of birth - city. Moscow, citizen of the Russian Federation, male, passport 03 07 222279, issued by the Federal Migration Service of Russia for St. Petersburg and the Leningrad region. in the Nevsky district of the mountains. St. Petersburg 03/02/2004, division code 780-056, registered: city. St. Petersburg, Nevsky district, Shlisselburgsky pr., house No. 44, bldg. 1 sq. eleven,

I trust gr. PIVEN LYUDMILA IVANOVNA, born 01/01/1979, place of birth - city. Moscow, citizen of the Russian Federation, gender female, passport 03 04 256341, issued by the PVS of the Internal Affairs Directorate of the _______ district of the city. Moscow 02/01/2003, department code 232-002, registered: city. Moscow, st. them. Academician Lukyanenko, house No. 13, apt. 12,

ACCEPT as a GIFT in my name 2/3 (two thirds) of the share in the right of common shared ownership of the APARTMENT, cadastral No. 77-79-01/006/2016-799, located at the address: city. Moscow, _______ district, st. them. Selezneva, house No. 6, apt. 2. Why do I authorize her to be my representative in all institutions and organizations of the mountains. Moscow, on the issue of collecting the necessary documents for drawing up a gift agreement, submit applications on my behalf, receive, present and sign all necessary certificates and documents, including duplicates and copies of documents, sign a gift agreement in my name, an acceptance certificate, be representative at the tax office, with the right to submit, register and receive from the Office of the Federal Registration Service for the Moscow Territory: a gift agreement and any documents related to the registration of the agreement, my ownership of the specified real estate, with the right to receive a certificate of state registration of ownership of the specified real estate in my name, with the right to make changes and corrections to the certificate of state registration of the right, with the right to pay the state duty or return any overpaid amounts of state duty, as well as sign for me and perform all actions and formalities necessary to fulfill this order.

The power of attorney to accept the apartment as a gift was issued for a period of one year without the right of subrogation. Contents of Art. 185-189 of the Civil Code of the Russian Federation was explained by a notary. The text of the power of attorney is read aloud by the notary. The power of attorney to accept the apartment as a gift was read by the principal personally.

SIGNATURE: ___________

Gor. Moscow, Russian Federation, July eleventh two thousand __________. This power of attorney to accept a share in the apartment as a gift has been certified by me, Elena Leonidovna Rusinova, a notary of the Moscow Notarial District, Russian Federation. The power of attorney to accept a share in the apartment as a gift was signed by Sergei Pavlovich Snimshchikov in my presence. His identity has been established and his legal capacity has been verified.

Registered in the register under No. ______________

Collected at the rate of _____ rub. + ____ rub. for ave.

NOTARY __________

See another example of a power of attorney...

Friends, what do you think about the power of attorney to accept a gift ? Write a few words about this in the comments and share this information on social networks with your friends. And in order not to miss other important changes in new laws in the future, subscribe to receive news.

RAA Law

Free legal consultation by phone

Types of powers of attorney and their differences

The Civil Code of the Russian Federation provides for several types of powers of attorney: one-time, special, general. According to their form, they are divided into two subtypes: simple written and notarial. There are also distinctions based on the validity period: urgent, issued for a specific period, and unlimited - drawn up for an indefinite period of time: it is canceled strictly in certain cases.

Powers of attorney are also divided according to the number of parties to the transaction: unilateral, where the interests of one donor are represented by one attorney, and multilateral, involving several principals and attorneys.

For donations, powers of attorney are of greatest importance in terms of the scope of powers. Let's look at them in detail.

One-time power of attorney

A one-time ticket is issued for a representative to perform one specific action. When donating, you can indicate that the citizen is only authorized to sign the DD or submit documents for registration.

Legal advice: a one-time power of attorney is the best option for giving. It strictly limits the rights and capabilities of the representative, thereby reducing the risks of the principal.

Special power of attorney

A special one is issued for performing similar actions during a certain period. According to it, the representative has the right to sign the DD or submit documents for registration several times. This option is not very suitable for donation if you need to issue only one deed of gift.

General power of attorney

The most dangerous option for the donor is a general power of attorney. It does not limit the attorney’s powers, and he will be able to use it to perform any actions with property: donate, exchange, sell.

Legal advice: even if you completely trust a person, it is recommended not to issue a general power of attorney for him. It is better to limit yourself to a one-time or special one in order to preserve relationships and property.

How to donate real estate by power of attorney: step-by-step instructions

The procedure is similar to an independent donation by the parties, but there is one step in it - the execution of a power of attorney for the representative. Both the donor and the donee have the right to do this if they cannot be present at the transaction in person.

Important! The agreement can be signed in person, and a power of attorney can be issued to an attorney to register the transfer of ownership, because the presence of all participants in the transaction is required. If it is not possible to sign the DD, a representative has the right to do so.

Step 1: agreement with the donee

First, you need to agree on the deal with the recipient of the gift: tell him what property is being transferred to him, when and where to sign the deed of gift. This step is important because... he can refuse the deal (Article 573 of the Civil Code of the Russian Federation).

Step 2: execution of a power of attorney

It is necessary to find a person to represent your interests. It can be a relative, acquaintance, friend - the choice is left to the principal. If the attorney agrees, you need to issue a power of attorney with a notary.

Contents of the power of attorney

The power of attorney is drawn up in writing and must contain the following information:

• The nature, range and scope of powers of the attorney;
• Full name, passport details of the principal and representative;
• Duration of powers;
• Description of the subject of the transaction: address of the property, area, number of floors, number of rooms, etc.;
• Information about the donee;
• Possibility or impossibility of transfer of trust;
• Details of title documents for real estate;
• Signature of the principal;
• Signature and seal of a notary.

If the principal is a legal entity, the organization's seal will be required.

Sample of a one-time power of attorney for donating a share in an apartment: alt:

Validity

According to Art. 186 of the Civil Code of the Russian Federation, a power of attorney that does not indicate its validity period remains valid for 12 months from the date of signing. If the date is not specified, the document is considered void. The maximum period is 3 years.

If a notarized power of attorney is intended for transactions abroad and does not contain information about the validity period, it is valid until canceled by the principal.

Documentation

To issue a power of attorney you will need:

• Passports of the principal and attorney;
• Certificate of ownership or extract from the Unified State Register for housing;
• The principal's title documents for real estate: purchase and sale agreement, exchange, etc.

State duty

According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 200 rubles. If a notary's assistance is required in preparing a document, this is paid separately. On average, prices for additional services start from 2,000 rubles. and depend on the region.

Step 3: registration of deed of gift

When the power of attorney is issued, you need to sign the DD. An attorney does this on behalf of the principal (donor), and the donee signs independently.

Important! If the DD requires certification, it must be signed directly by a notary.

Documentation

The list of documents is almost the same as when drawing up a power of attorney:

• Passports of the parties;
• Power of attorney;
• Deed of gift (if drawn up independently and not from a notary);
• Real estate documents.

Step 4: registration of the transaction in Rosreestr

After signing the DD, the representative and the donee need to come to the MFC or Rosreestr to submit documents for re-registration of ownership. If a contract of promise of gift has been drawn up, the application is submitted only from the moment its execution begins - the date is indicated in the document.

For registration, the list presented above is provided, but in addition to it you will need a deed of gift.

Note! If the gift is not real estate, but, for example, a car, registration is not required. All you need to do is make changes to the title and register the vehicle with the new owner.

State duty

Individuals pay 2,000 rubles for re-registration of real estate, organizations – 22,000 rubles.

Form of power of attorney and its concept

Based on the rules and regulations described in paragraph 1 of Article 185 of the Civil Code, a power of attorney is a document according to which one party transfers authority to the other party to represent its interests, that is, to participate in transactions, as well as carry out other legally significant actions. Thus, a power of attorney must always be executed in writing, and in some special cases it must also be notarized (2 paragraph 185 of Article 185 of the Civil Code of the Russian Federation).

The document in question must be issued to the representative solely on the basis of his internal agreements with the represented person, depending on which it may be an agreement of agency, representation, employment contract, etc.

Let us immediately note that the issuance of a power of attorney refers to unilateral transactions, since it actually provides for the expression of the will of the represented person, without requiring consent from his representative. Moreover, in order to issue a power of attorney in 2020, the representative does not even have to be present.

According to the norms of the current legislation of the Russian Federation, any capable citizen has the right to issue a power of attorney, while persons with limited legal capacity (for example, children who have already turned 14, but have not yet turned 18 years old) have the right to issue a power of attorney exclusively within the framework of that legal capacity , which the legislator endowed them with (Article 26 of the Civil Code of the Russian Federation).

In addition, a power of attorney can be issued by several persons at once (for example, when concluding a transaction for the purchase and sale of real estate that is jointly owned), and the document can also be issued in relation to a group of persons.

Power of attorney is issued to both individuals and legal entities. If a document is issued by an organization, then it must be signed by its head or another competent person (5 paragraph 185 of Article 185 of the Civil Code of the Russian Federation). At the same time, this power of attorney may not be notarized.

Power of attorney requirements for gift transactions in 2020

The current legislation does not contain specific requirements set by the legislator for a power of attorney, and therefore it is customary to use the norms from Chapter 10 of the Civil Code as such, taking into account the specifics of each specific case.

• For example, based on the information specified in paragraph 1 of Article 185 of the Civil Code of the Russian Federation, a power of attorney issued by the donor to conduct a transaction for him is drawn up in writing.
• In addition, since a power of attorney is a strictly personal document, it must contain the names and names of the parties (the parties of the represented and the parties of the representative).

Important : At the same time, the content of the power of attorney must define the nature, scope, and scope of the powers transferred to the person. Based on the fact that after the transaction has been completed there will be no point in the declared powers, it is recommended to issue a one-time power of attorney!

• Since the power of attorney is a fixed-term transaction, it would be logical to indicate in its content not only the period of its issuance, but also the validity period. However, if this clause is missing from the document, then, according to current legislation, the generally accepted validity period of 1 calendar year from the date of its issuance will be applied to it. At the same time, according to paragraph 1 of Article 186, after the expiration of the term, the power of attorney is void.
• Moreover, for powers of attorney to make a gratuitous gift, based on paragraph 5 of Article 576 of the Civil Code of the Russian Federation, it is mandatory to include in its content the subject of the gift and the name of the donee. In the absence of this data, the power of attorney will also be considered void.
• The last mandatory detail of the power of attorney in question is the signature of the donor himself. Thus, in transactions in which the donor is a legal entity, according to paragraph 5, paragraph 185 of Article of the Civil Code, such a signature must be sealed by the relevant organization.

EVERYONE NEEDS TO KNOW THIS:

Limitation period for challenging donation transactions

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

Mostrest OJSC decided to donate, free of charge, the warehouse-type technical premises it had on its balance sheet in favor of Kryshstroy LLC, which assumed the responsibility to use this property to develop a help center for refugees.

To draw up the relevant documentation, the management of Mostrest sent its legal representative in the person of legal adviser Ivanov, empowering him with a power of attorney, which was personally certified by the head of the OJSC.

After signing the agreement for the donation of technical premises, the parties, in accordance with the norms of the current legislation of the Russian Federation, were obliged to proceed to the re-registration of ownership rights to the transferred/received object. To do this, the parties sent applications and documents established by the legislator for these purposes to the Rosreestr office:

• Extracts;
• title documents;
• deed of gift;
• power of attorney, etc.

Some time later, the parties received a notification from the registration authority employees refusing to register the transfer of ownership. The reason for refusal was the invalidity of the deed of gift.

At the same time, Rosreestr employees motivated their decision by the fact that the gift agreement concluded between the parties was signed by an unauthorized person on the part of the donor. These conclusions were based on non-compliance with the norms and rules for drawing up a power of attorney for making a gift - the agreement did not indicate the object of the gift and the data of the donee were not indicated.

Thus, according to paragraph 5 of Article 576 of the Civil Code of the Russian Federation, the power of attorney that was issued to Ivanov was invalid, which led to the invalidity of the entire transaction.

Termination of power of attorney

According to Art. 188 of the Civil Code of the Russian Federation, a power of attorney is revoked for one of several reasons:

• The expiration date specified in the document occurs;
• Cancellation of a power of attorney by the principal;
• Refusal of the attorney's authority;
• Death of the principal or representative;
• Bankruptcy of an attorney or representative in an arbitration court if he loses the right to issue powers of attorney.

To terminate powers, a consent to refuse is drawn up. The parties have the right to draw it up at any time and contact a notary.

Risks of giving by proxy

There are several risk factors when making a gift by proxy. If a general agreement is drawn up, the attorney will be able to dispose of the principal’s property at his own discretion: not give it to the donee, but transfer everything to himself or sell it to other people. It’s better to make a one-time deal, for a specific transaction.

There is another point: if another person wants to challenge the DD, in court he can refer to the fact that the principal did not understand the consequences when drawing up the power of attorney. That is why it is recommended to have the document certified by a notary: this way the chances of the transaction being canceled will be reduced. Notaries always explain the rights, obligations and consequences for the parties. If it is determined that the owner is in poor condition and does not understand the consequences of the gift, the certification will be refused.

Is it possible to draw up a deed of gift for an apartment using a power of attorney?

When considering this issue, it should be noted that such an operation is not prohibited by current legislation . Although we should not forget about some details.

In order to transfer the powers of the donor to a third party , it is necessary to indicate in the text of the document the subject of the donation (a specific living space at a specific address), the details of the person to whom the gift is intended, as well as the details of the person who will be authorized to carry out the transaction.

Moreover, for the transaction to be successful, it is necessary that the donor’s representative be an adult and legally capable individual , otherwise such a transaction will be illegal, and the deed of gift for the apartment by power of attorney will have no force.

Arbitrage practice

Often, interested parties turn to the courts to invalidate DDs and powers of attorney, justifying this with the above reasons or a violation of their interests.

Here are some examples of decisions where claims were satisfied:

• Decision No. 2-3/2019 2-3/2019(2-517/2018;)~M-466/2018 2-517/2018 M-466/2018 dated January 22, 2020 in case No. 2-3/2019 ;
• Decision No. 2-17/2019 2-17/2019(2-2093/2018;)~M-1268/2018 2-2093/2018 M-1268/2018 dated January 15, 2020 in case No. 2-17/2019 ;
• Decision No. 2-335/2018 2-335/2018(2-5440/2017;)~M-3301/2017 2-5440/2017 M-3301/2017 dated September 28, 2020 in case No. 2-335/2018 .

Lawyer's answers to frequently asked questions

Is it possible to transfer a power of attorney for donation?

Yes, if this is provided for in the initial power of attorney from the donor or donee.

Is the presence of the donee required when drawing up a power of attorney?

No, his data is enough.

What is the validity period of a power of attorney?

The validity period cannot exceed the period specified in the first power of attorney.

A general power of attorney has been issued for the son to dispose of property. Can he use it to draw up a deed of gift for the apartment and give it to himself?

No you can not. The same person does not have the right to represent the interests of both parties.

Is it possible to call a notary to your home if a person is paralyzed?

It is possible, but transportation costs and services are paid separately from the state duty. The cost is set by regional notary chambers.

How to correctly draw up a power of attorney to donate a share of an apartment

The basic requirement is a written form of the document. The donor cannot verbally authorize a representative to alienate real estate. A standard sample power of attorney can be downloaded from the website. If necessary, it can be supplemented with missing sections. When developing a draft power of attorney, you need to take into account the legally significant actions that the representative must perform. It is advisable to avoid general language. Often, employees of government agencies demand specifics.

Form

A typical power of attorney form must contain the following sections:

1. Title of the document.
2. City, date of document preparation.
3. Information about the identity and place of residence of the donor.
4. Mention of the transfer of authority to a representative.
5. Information about the identity and place of residence of the authorized person.
6. List of powers to perform legally significant actions.
7. Validity period of the written order.
8. Signature of the owner of the alienated property.
9. Notary's certification.

Content

When drawing up a document, it is necessary to proceed from a set of actions that must be performed by the representative of the owner of the premises. The principal only needs to fill out the sections described above.

For example, the name of the document is a power of attorney to donate a share in an apartment. Further, the city and date of drawing up the power of attorney are indicated - Moscow, February twentieth, two thousand and eighteen.

Below you need to indicate the name of the principal and residential address - citizen Elena Yakovlevna Popova, living in Moscow, st. Korolenko, 6, apt. 75.

Then the will of the principal is indicated - with this power of attorney I authorize citizen Evgeniy Aleksandrovich Mayorov, residing in Moscow, st. Vesnina, no. 9, apt. 69, donate to citizen Maria Mikhailovna Soboleva, who lives in Kursk, st. Mira, 61, apt. 1, ½ part of apartment No.___ belonging to me, located in Kursk, st. Winter, 6.

Below is a list of required powers and the validity period of the power of attorney. After which the principal puts his signature. A notary inscription is made at the bottom of the document.

Documentation

To issue a power of attorney, you only need two documents:

1. Property owner's passport.
2. Receipt for payment of the fee.

However, in order to avoid mistakes, it is advisable to also prepare a copy of the passport of the authorized person and the final beneficiary.

Expenses

Notarization of a power of attorney includes two expense items:

1. State duty. The fee is 200 rubles. Payment of the tax is made on the eve of the notarial act. A bank receipt serves as proof of payment of the state duty.
2. Notarial services. The law does not provide for a flat rate. It differs by region. Details should be checked with a notary. The average cost of services is 1000 rubles.

The state fee may increase by 1.5 times if the notarial act is performed outside the office.

The costs of registering a deed of gift are paid separately. The donor can take them upon himself or assign them to the beneficiary.

Deadlines

The law does not provide fixed deadlines for issuing a power of attorney. They are determined by the owner of the property based on their life circumstances.

However, there is a validity period for the power of attorney. It is usually indicated in the text of the document. The standard period is three years . In case of its absence, the power of attorney is valid for one year from the date of its issue.