Functions of a preliminary donation agreement

What is a preliminary gift agreement?

A preliminary gift agreement (hereinafter referred to as DD) is a document according to which one party (the donor) undertakes to conclude a main agreement with the second party (the donee).

Unlike a standard deed of gift, a preliminary deed of gift has several features:

1. In a regular DD, the subject of the transaction is the property being transferred. In the preliminary stage, it is the obligation of the parties to draw up the main agreement.
2. The preliminary DD is drawn up in the same form as the regular one.
3. It is mandatory to indicate the period during which the parties must conclude the main DD. If there is no such period in the document, it is considered that the transaction must be concluded within 1 year from the date of registration of the preliminary DD.
4. The obligations provided for in the preliminary agreement are canceled if the main DD is not concluded within the established time frame.

Briefly: the preliminary gift agreement is drawn up in a similar basic form and contains complete data on the transferred values ​​or real estate. This is a completely free transaction. The presentation by the donor of counterclaims to the donee entails the recognition of the DD as invalid (Article 572 of the Civil Code of the Russian Federation).

Why enter into a preliminary gift agreement?

Most often, such acts are concluded in cases where the parties do not have the opportunity to carry out this important transaction, on which a business can sometimes depend (for example, when donating a share in an LLC) or even a person’s life (for example, gift money is needed to pay for an urgent treatment). Such situations, unfortunately, are not uncommon. This type of preparation for a transaction is regulated by the provisions described in Article 429.

Essence : So, in order to ensure that the transaction under discussion will definitely take place in the future, experts recommend that the parties enter into a preliminary gift agreement, according to the listed conditions of which the deed of gift will be signed even if one of the participants refuses.

In the practice of the lawyers of the Legal Ambulance website, there was a case when the donor and the donee were forced to sign a similar act, since it took much more time to prepare the documents necessary for the transaction than the participants had. At the same time, the property had to be put into use by the recipient much earlier than the deadline for preparing construction documentation.

But this does not mean that a preliminary agreement may not be needed in ordinary situations. To do this, it is worth considering in more detail the concept of donation itself.

Preliminary agreement form

The provisions of Art. 429 of the Civil Code of the Russian Federation, according to which it is drawn up in the same form as the main one:

• written form is required when donating real estate or transferring a gift worth more than 3,000 rubles. from a legal entity;
• It is planned to conclude a contract of promise of gift.

If you want to donate property other than real estate, an oral form is sufficient. Such an agreement is considered valid from the moment of execution:

for example, when handing over the keys to a car, etc. For such transactions, written form is not required, but if you wish, you can formalize the transaction on paper - this is not prohibited by law.

Legal advice: it is better to formalize any agreements in writing. An oral promise to donate a valuable thing or to enter into a deed of gift in the future has no legal force.

What is a preliminary agreement?

A preliminary gift agreement is a legal agreement between two parties to the transaction, which determines the subject of the agreement, both parties, obligations and conditions, the period for concluding the main agreement (Article 429 of the Civil Code of the Russian Federation).

Reasons for concluding a pre-contract can be considered the lack of all documents for the share of the apartment or the desire to insure yourself with a future transaction. For example, if the child’s representative doubts that the donor will give the share to his ward and not to another relative.

A deed of gift should not be confused with a preliminary gift agreement - these are different documents, even despite similar clauses about the property, the subject of the gift, conditions, etc.

Preliminary agreement and agreement of promise of gift: differences

Many people confuse these contracts, although there is a significant difference between them in terms of the subject of the transaction.

In a pre-contract, it is the intention of the parties to conclude the main DD within a specified period of time, and in a promise contract - to transfer specific property to the donee on a certain date.

The only thing they have in common is that transactions are free of charge and the consent of the donee is mandatory. Based on Art. 573 of the Civil Code of the Russian Federation, he has the right to refuse the gift. This rule also applies to the pre-contract. If it is in writing and the refusal is in writing. In other cases, an oral form is sufficient.

Is it necessary to register a preliminary agreement?

Registration of the pre-contract is not required. This is only necessary when transferring ownership of real estate free of charge. This is also stated in paragraph 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59: even if it is planned in the future to draw up the main DD subject to registration, the pre-contract should not be registered - the registration authority will simply refuse this.

Important! The conclusion of a pre-contract does not necessarily mean the transfer of ownership of the property to the donee. The parties, by mutual agreement, can refuse to execute it, so registration is not relevant.

Gift deed from the point of view of the law in 2020

So, our regular Readers know that a gift in jurisprudence is usually called the gratuitous transfer of ownership and property closely related to it from the donor to the donee or the release of the latter from certain property obligations in relation to the donor.

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At the same time, according to the current legislation of the Russian Federation, the transaction is completed at the time the parties sign the gift agreement, unless another start date for its validity is specified in the contents of the deed of gift.

One of the mandatory and fundamental factors that distinguishes this type of alienation of property from others is the gratuitous nature of the transaction, which excludes the presence of any counter-obligations of the donee in relation to the opposite party. However, this nature does not at all mean that the conclusion of the transaction is groundless, because each of the parties, one way or another, pursues its own goals and is driven by its own motives, which go beyond the scope of the gift itself.

Thus, being primarily a contract, when donating, one party must express a desire to donate the object, and the other must accept it. If one of these rules is violated, the gift agreement will be considered false and will not have legal force.

It is worth noting that, although the will of the donor to make a gift to a certain person is considered one of the main aspects of giving, the desire to make a gift itself cannot be the basis for lawyers to consider such a transaction a gift. So that this does not violate the law, the donor’s desire to give a gift to another person should not contain the desire to receive any benefits in return (money, services, etc.). all this applies to the consensual deed of gift.

Simply put, the parties must understand that the release from property obligations or the gratuitous transfer of the donor’s property must be formalized in the form established by law, including the donor’s will to complete the underlying transaction in the future.

By transferring ownership of movable or immovable property, the donating party thereby increases the property of the donee and these signs, although they do not have their own meaning in the context of the transaction, arise from the nature of the transaction.

In 2020, not only individuals, but also legal entities and other subjects of civil law can still act as donors and recipients. However, according to current legislation, some of the subjects may be limited in this right. For example, only capable and legally capable citizens can act as a party to a gift transaction.

What can you give?

A pre-contract is concluded with the intention to subsequently draw up the main deed of gift, under which movable and immovable property can be donated. Let's look at everything in more detail.

Automobile

To donate a vehicle, a written form is not required if the donor is an individual. But it is better to draw up everything on paper: this will make it easier to prove the intention to draw up a deed of gift within a specific time frame.

Land plot

If the donor owns a plot of land purchased during marriage, the notarial consent of the spouse is drawn up along with the pre-contract. In this case, the main DD must also be certified by a notary.

Important! All buildings on it are alienated along with the site. They must also be indicated in the pre-contract.

Residential building and land

You have the right to donate a private house, but along with it, the plot on which it is located will also become property.

Alienation of only one type of property in this case is unacceptable. This must be taken into account when drawing up a pre-contract.

Apartment

The apartment is classified as real estate, and all contracts involving its alienation are concluded in writing. You can donate either the entire living space or part of it.

First, the donor needs to allocate a share in the common property right and register the changes in Rosreestr.

Money

Any currency can be given orally, but if desired, the parties can create a written deed of gift.

In this case, the pre-contract is also drawn up on paper. It is not necessary to have it certified by a notary.

Required documents

List of documents that are needed to formalize the state registration of an agreement on donation of a share of an apartment:

• receipt of payment of state duty (with the obligatory attachment of a copy of the document);
• statement of the parties to the agreement, which is drawn up in the form of the Federal Registration Service;
• documents that approve the powers of the representative (with the obligatory attachment of a copy of the document) - power of attorney to represent interests in the Federal Reserve System; adoption certificate; guardian/trustee certificate;
• documents that identify the parties to the agreement (required for presentation);
• title document of the person who alienates the share of the apartment (with a copy of the document attached);
• originals of the agreement for the donation of a share of the apartment, in a number equal to the number of parties to the agreement and one for placement in the file of the Federal Registration Service;
• notarized consent of the donor's spouse to alienate a share of the apartment or a notarized statement of celibacy;
• extract from the house register.

It is necessary to note once again that a gift agreement is a transaction in which ownership of non-property and property rights is transferred. Therefore, in order for a transaction to be valid and legal, during the process of its implementation it is necessary to comply with all the norms and procedures established by the legislation of the Russian Federation.

Who can I give it to?

Any person has the right to act as a donee. If he is between 14 and 18 years old, he signs the contract independently, but with the consent of his parents. Transactions involving children under 14 years of age are carried out only by parents.

Close relatives

Close relatives should be understood as parents, brothers, sisters, children, grandparents, and spouses. You can give them any things and real estate.

For a minor child

If the recipient is a child under 18 years of age, you will have to obtain the consent of his parents or guardians. When donating real estate, you need to register the transfer of ownership, but on the basis of a standard deed of gift, and not a pre-contract.

There is no need to obtain permission from the guardianship authorities, because here the property status of the minor does not worsen, but, on the contrary, increases.

The exception is if the child is under guardianship: in this case, all transactions with him are carried out under the control of this body.

To other persons

A pre-agreement on the intention to draw up the main DD can also be drawn up with a stranger who is not a relative: a friend, girlfriend, acquaintance, etc.

Family ties in such transactions are important only when receiving property under a standard deed of gift - in this case, a non-relative will have to pay tax.

How to draw up a preliminary gift agreement: step-by-step instructions

The procedure for drawing up a pre-contract consists of several stages, which will be discussed below.

Step 1: agree on the deal

First you need to agree on a deal with the recipient - do not forget that he has the right to refuse the gift.

It is recommended to stipulate in advance when the main deed of gift will be drawn up and what will become his property.

Step 2: drawing up a pre-contract

You can draw up a pre-contract yourself or seek help from a lawyer.

In the latter case, the document will be drawn up as competently as possible. Incorrect execution significantly increases the likelihood of challenging the transaction.

Documentation

When signing the pre-contract, you must have with you all the documents for the alienated “gift”.

The list of main documents includes:

• passports of the parties;
• power of attorney, if an attorney acts on behalf of the donor or recipient.

The additional package depends on the subject of the transaction:

Sample preliminary donation agreement

The pre-contract must include information about:

• Full name, registration addresses, passport details of the parties to the transaction;
• date of drawing up the main contract (the most important point);
• gift: address, value, etc.;
• conditions for drawing up and content of the main deed of gift.

At the end, the parties sign. Indication of the date of registration is mandatory - the period during which the deed of gift must be drawn up is counted from it.

Sample preliminary donation agreement:

Step 3: Notarization

If the main DD is subject to certification by a notary, then the pre-contract is also certified. In other cases, the parties can contact a notary office if they wish.

Legal advice: it is better to have the deed of gift certified by a notary. This will simplify legal proceedings if one of the parties refuses to perform. The notary's signature will confirm that the donor and donee were legally capable at the time of the transaction, and no psychological or physical pressure was exerted.

Briefly: the parties have the right to independently draw up a pre-contract, and, if necessary, contact a notary. There is no need to register the transaction.

Is a preliminary agreement for donating a share of an apartment to a minor necessary?

Let's talk about the preliminary gift agreement. This term is very popular and relevant in a situation when we are talking about a gift directly to a minor. So let's talk about the situation in which it should be drawn up.

A preliminary donation agreement or a draft agreement for donating a share of an apartment to a minor child is drawn up so that the parties have the opportunity to make any adjustments, and also, if possible, edit it.

In addition, you need to remember that a preliminary gift agreement allows the parties to familiarize themselves with all the nuances of the transaction.

So, for example, the donee can learn more about housing, or more precisely the property that becomes his property, and the donor will be able to familiarize himself with the nuances that, one way or another, accompany the procedure for transferring real estate to a minor.

IMPORTANT: A preliminary donation agreement can be provided to the guardianship and trusteeship authorities. Representatives of the authority will review such an agreement and, if necessary, add their own nuances to it.

In a situation where it is drawn up correctly, employees of the guardianship and trusteeship authority will give their recommendations.

Such an agreement for donating a share in an apartment to children allows them to test the waters, and if it turns out to be successful, subsequently sign it in the presence of a notary. The law does not oblige you to enter into an agreement, and most importantly, to draw it up in principle.

However, if you want your transaction to go through according to all the rules, and no force majeure circumstances arise during the conclusion process, then treat such a transaction with due attention, observing all the nuances. Perhaps drawing up a trial agreement will be a great experience for you, as well as an impetus to correct some points.

Preliminary agreement for donating a share of an apartment to a minor, sample.

Termination of the preliminary agreement

The pre-contract is automatically terminated if obligations are not fulfilled within 1 year or another period specified in it. When drafting, it is recommended to immediately indicate under what conditions the parties can terminate the transaction voluntarily.

Other grounds for termination:

• presence of encumbrances: seizure of property, being in collateral;
• discovery of shortcomings in the “gift”, about which the donor did not warn in advance;
• commission by the donee of a deliberate crime against the life and health of the donor.

If the possibility of voluntary termination is not specified in the pre-contract, it can be canceled in court. According to Art. 445 of the Civil Code of the Russian Federation, one party has the right to seek registration of a deed of gift through the court if the second refuses this. A claim for forced conclusion of a transaction can be filed within 6 months from the date on which the obligations were to be fulfilled.

In short: you can’t just change your mind about fulfilling the terms of the pre-contract - the other party will be able to achieve forced conclusion through the court.

Recognition of the preliminary agreement as void

A pre-contract is considered void if its content does not correspond to the legal consequences.

There are other reasons:

• execution of a document by an incapacitated person;
• non-compliance with the established form;
• lack of reference to the item - the intention to draw up a deed of gift within a certain period.

The court may declare the pre-contract void upon the application of one of the parties - the donor or donee, or a third (interested) person.

Arbitrage practice

The practice of declaring pre-contracts void or terminating is small, but it is worth considering one example when the request to annul a transaction was satisfied by the court:

The woman drew up a pre-contract with the donee to draw up a deed of gift for the land plot. According to the terms of the deal, the main DD must be completed within six months. Until this moment, the recipient arrived at the site and realized that it was impossible to carry out construction on it: high-voltage wires were installed in a place suitable for building a house, and there was no possibility of conducting engineering communications.

Before drawing up the pre-contract, the donor assured that it was possible to build on the land without any problems. The recipient contacted the gas and electricity service, where she was given a certificate prohibiting construction on the donated site.

The recipient approached the donor with a written proposal to terminate the pre-contract, indicating the reasons. There was no response within 30 days, and then the woman went to court, presenting evidence. The claims were satisfied.