Is it possible to donate a share in joint property?

Is it possible to donate a share of an apartment?

Content

A share is a part of real estate. In other words, an established part of property rights belonging to a specific owner.

If it is not allocated, by default it is assumed that the housing belongs to the owners in equal shares. When allocating shares, they are distributed as agreed by the parties.

To formalize a gift agreement (hereinafter referred to as DD), the share must be allocated and changes must be registered in Rosreestr. Only in this case will it be possible to give it to another person. The consent of the other owners is not necessary - they are only subject to the right of first refusal when selling real estate.

Note! The allocation of a share does not mean that specific premises in the apartment are distributed among the owners. They will have to agree on who can live in which room.

Separation of a share from joint property

It is clear that it is impossible to create an entrance, corridor, kitchen or bathroom in the apartment for each share owner. Therefore, most often, individual rooms become private property, but utility rooms remain in shared ownership.

Obtaining registration by any share owner does not require the consent of the other owners. However, if the allocated share is ideal, in order to register someone else on it, it is necessary to obtain such consent. An exception to this rule is minor children of the share owner under 14 years of age. They can obtain registration for the parent's share without the consent of the other persons living in this apartment.

Is the consent of all owners required?

As stated earlier, the consent of the other owners is not required. It is necessary if the donated property was acquired during marriage, even if the real estate is registered entirely in the name of the donor.

According to Art. 35 of the RF IC, real estate and other valuable items acquired during marriage are the joint property of the husband and wife. For alienation, which is a gift, consent must be formalized. Even if you donate a share to a common child, the spouse whose rights were violated will be able to challenge the transaction through the court within 1 year from the day it became known about the violation of rights - donation without permission.

If the spouses have drawn up a marriage contract, according to which the property acquired during marriage belongs to one of them, and he acts as a donor, the consent of the other is not required.

Spousal Consent Sample

An application for the spouse’s consent to the alienation of a share in the common property is subject to notarization.

When compiling it is indicated:

• FULL NAME. spouse, date of birth, passport details;
• date of purchase of the apartment, information from registration documents, area, floor, address;
• date of marriage registration, certificate details;
• expression of consent to alienation;
• date of compilation and signature.

Sample application for the spouse’s consent to donate an apartment (under a deed of gift): alt: Statement of the spouse’s consent to donate an apartment (under a deed of gift)

Do you need the consent of other owners to donate a share of an apartment?

Any alienation of real estate for compensation, in accordance with clause 2 of Art. 246 of the Civil Code of the Russian Federation, is carried out with the mandatory consent of the remaining co-owners. What is “compensated alienation”? This is a transaction of purchase and sale or exchange of residential premises, that is, a transaction in which the alienated share of the apartment is compensated in some way.

The donation procedure, unlike the compensated one, is a gratuitous transaction and, therefore, does not fall under the provisions of the above article; in other words, if the owner of a share of a residential premises decided to donate his property to a third party, then the consent of the owner of the other share is not required.

But, when drawing up a gift agreement, it is always necessary to proceed from the circumstances of the transaction, take into account the number of owners, the date of emergence of ownership of the residential premises and the grounds on which it arose, who the beneficiary is and the methods of alienation of the share of the apartment.

For example, the Golubev spouses purchased an apartment during marriage and with joint funds, so each of them is the owner of half of the living space; there was no allocation of shares in kind. Soon the couple had a daughter, and ten years later the husband decided to give his part of the apartment to his daughter for her first anniversary.

In this case, the transaction actually takes place among blood relatives within the same family, but the father will not be able to enter into a gift agreement unless his wife gives written consent to the alienation of a share of the apartment.

But if the father’s share had been allocated in kind, the wife’s consent to conclude a gift agreement with her daughter would not have been required.

If, for example, several members of the same family or non-relatives received already allocated shares of residential premises as an inheritance, each with their own part, then when donating any share, there is no need to obtain the consent of the remaining owners.

Do I need to have the contract certified by a notary?

If the apartment belongs to different owners, the gift agreement must be certified by a notary. The exception is certain situations when you don’t have to go to a notary’s office:

• real estate has several owners, and all transfer shares to the donee under the DD within one transaction;
• One person owns an apartment and wants to give a share to another.

Case studies:

No. 1. Several owners.

The apartment is owned by the spouses, the shares are allocated. They decide to register a DD for their common child. For this purpose, a tripartite agreement is drawn up, where the parties are the mother, father and minor. One of the donors acts on behalf of the latter - he signs for the child, because he is under 14 years old. The DD is registered in Rosreestr, and ownership passes to the donee.

No. 2. One owner.

A citizen owns an apartment purchased before marriage and decides to donate ½ share to his wife. The donor and donee draw up a DD, then contact the MFC to re-register ownership.

Legal advice: be careful when donating shares in a marriage. In the event of a divorce, the ex-spouse will retain ownership of part of the property and will not be able to evict him. Real estate acquired during marriage through a gift is not subject to division (Article 36 of the RF IC).

Cost of notary services

Notaries charge 500 rubles to certify the consent of the spouse. Certification of DD is much more expensive. According to Art. 333.24 of the Tax Code of the Russian Federation, the state duty is 0.5% of the cadastral value of the donated share, minimum 300, maximum 20,000 rubles.

If the deed of gift is drawn up by a notary, you will have to pay an additional 5,000-7,000 rubles. The cost of technical services is set by regional notary chambers.

If necessary, you can order documents to be sent for registration by a notary; the service is provided free of charge. Previously, it was paid, but at the beginning of 2020 the tariff was canceled.

Let's look at an example of duty calculation:

A man gives ½ of an apartment to a child, the cadastral value is 2,000,000 rubles.

2,000,000 x 0.5% = 10,000 rubles.

If he had a wife, he would have to pay another 500 rubles to verify her permission.

Important! If the notary fee exceeds 20,000 rubles, the specified amount is paid, because this is the maximum limit. For the calculation, the cadastral or inventory value of the donated share is used, and not the entire housing. The choice of value for calculating the payment rests with the donor.

In what cases is the consent of other owners still required?

Consent may be needed only in one case - if you have a spouse.

ATTENTION: This is only about registered marriage.

So, you have a share in the apartment. To understand whether the consent of the husband or wife is needed, first of all, you should pay attention to how you received this share:

• under a free transaction. It was given to you or bequeathed to you;
• on a paid transaction. You bought it.

In the first case, you will never, under any circumstances, need anyone's consent.

In the second case, there are several options:

1. the property was acquired before marriage;
2. married;
3. The spouse also has a registered share.

So, let's take a closer look.

• Since the property became yours before the union was formalized, you do not need to provide consent to the registration service. You are the sole owner and make all decisions yourself.
  However, at the time of submitting the application, you will need to indicate that you were not married and submit a copy of your marriage certificate. Then the registrar will be convinced of the veracity of the note on the application and no problems will arise when registering the transfer of shares.
• Joint ownership is when property was acquired during marriage. It is believed that the funds for the purchase in this case are shared, even if one of the parties to the union does not work.
  This is explained in the family code, caring for the home and children, cooking and cleaning is a contribution to the family, the spouses mutually create something well-being, and everything acquired during this process is joint.

  This means that if, according to the documents, the apartment is not even partially listed as belonging to the spouse, the husband or wife must draw up a document according to which they do not object to the gift being made, and sign it.

  .

  ATTENTION: The spouse must bring such a statement to a notary office and have it certified. The notary can fill out everything himself. But only consent that has been notarized will be required.

  In some cases, it is required to prove that the second participant in the marriage did not work without reason, led an unworthy lifestyle and caused damage to family well-being and property.

  Then the court has the right to decide to reduce the spouse’s share of the property, but the court will not completely deprive it of it.

• If the spouse’s share is registered in Rosreestr, and he is also a co-owner, then his consent to the alienation of your share or part of your share will definitely be required , and as stated above, only notarial consent.

From our separate materials on donating a share of an apartment, you will learn how to correctly draw up a contract based on the sample, as well as what are the features of a deed of gift to two recipients in equal shares.

Who can I give a share of the apartment to?

Donation is possible in relation to any person - both relatives and friends. The main condition is the presence of an allocated share, which is in the possession of the donor according to documents.

Let us consider the features of drawing up DD for different categories of recipients in detail.

Between spouses

A husband can give a share in an apartment to his wife, and vice versa. When making transactions between two owners, the consent of the second is not required, because the property is alienated in his favor.

The DD is certified by a notary - this is indicated in Part 1 of Art. 42 Federal Law dated July 13, 2015 No. 218-FZ.

For a minor child

A child can act as a donee without the consent of the guardianship authorities - it is required only for the alienation of property.

An exception is a gift to a minor under guardianship: here you will have to act through guardianship, because any property transactions are controlled by this body.

Up to 14 years of age, parents sign for the child; his presence to sign the DD is optional. The donee aged 14 to 18 years old participates in the transaction independently, but with the permission of his parents or legal representatives.

Adult son or daughter

There are no restrictions here: adult citizens sign themselves. The exception is when an adult child is deprived of legal capacity. In this case, the guardian signs for him and gives consent to the transaction.

If the apartment is in common ownership with a spouse, you need to obtain his consent and have it certified by a notary.

Mother or father

The property of parents and children is demarcated; if desired, the child can donate part of the living space to the mother or father.

Notarization is required if the property has several owners. The consent of the spouse will also be required if he is one of the owners of the gift.

Sister or brother

Several situations are possible here:

1. The apartment is shared ownership with the parents. Their consent is not required, but the DD is certified by a notary.
2. The property is owned by married couples. The donor must obtain the permission of the spouse.

Important! It should be borne in mind that after the alienation of the share, the brother or sister will be able to live in the living space with the donor’s spouse, or sell the part, having first offered a buyout to the second owner. Challenging a donation is problematic.

Grandson or granddaughter

Grandparents have the right to give shares in the apartment to their grandchildren.

The same rules apply here as for parents:

• in case of common property rights with the spouse, consent is previously drawn up;
• if the donor is not married to the second owner, permission is not needed - it is enough to have the DD certified by a notary.

To grandma or grandpa

Grandchildren have the right to alienate shares in apartments that belong to them as property. If the second owner is not a spouse, consent is not required.

It is important to take into account that in the event of the death of grandparents, the gifted property will become the property of the second spouse by inheritance by law. If there is a will, the citizen indicated in it becomes the owner - the right to choose an heir is given to the testator.

To the second owner

If one owner decides to donate a share to the second, regardless of the type of relationship (spouses, relatives, strangers), the notarized consent of the donee is not required.

It is expressed in the DD itself and confirms that the donee accepts the terms of the transaction and the subject of the donation.

On behalf of a minor

In Art. 575 of the Civil Code of the Russian Federation directly states: donation on behalf of a minor child is prohibited. In the Russian Federation, a person under 14 years of age is considered a minor.

But a child between 14 and 18 years old will not be able to donate a share in the apartment. Such transactions will be declared invalid, since the parent cannot give consent to a significant deterioration in the property status of the minor.

Can I donate my share without the consent of others?

The need for such a document depends on the situation.

The need for a document is influenced by:

• When was the property registered?
• Who is the other owner?
• Who is registered and lives in the apartment.

In the first case, a period of time is implied: before marriage or during it. If a share in real estate was received during marriage as a gift to one of the spouses, then it will be his personal property.

It is not subject to any division. Accordingly, the owner can dispose of it at his own discretion. If this share was purchased jointly, then the second spouse has full rights to it, so permission from him when donating will be required.

If the second owner is a child (from 1 to 18 years old), then permission from the guardianship authorities and his guardians must also be obtained. If the second owner is a spouse, then permission will be required. Moreover, it must be notarized.

If the second owner is a stranger or a distant relative, then permission is not required.

In the case of children registered in the apartment, the issue of donation must be agreed upon with the guardianship authorities. You need to get permission from them. It will be issued only if the rights to property of minors are not infringed during the transaction.

Consent from other owners is required to protect their rights. For example, if a spouse wants to give his share to a stranger. The wife will not be able to claim this share in the event of her husband’s death or divorce. Although, if this share was jointly acquired property, she has full right to it. Precisely, in order to avoid such controversial issues, it needs to be resolved.

Moreover, if the share was acquired or received by the husband before marriage, then the wife has no rights to it. Therefore, the husband can give it without the consent of his wife.

Who can't be given a share in an apartment?

Art. 575 of the Civil Code of the Russian Federation indicates that donation is prohibited not only on behalf of children under 14 years of age, but also in other cases.

You cannot donate a share in real estate to the following categories of citizens:

• employees of medical, educational, social institutions, if the donor is a student or citizen detained there;
• persons holding municipal or government positions, if the transaction is related to their official powers.

Employees of financial, state, and municipal organizations can be given gifts of up to 3,000 rubles. as part of official events. If the value of the gift exceeds the specified amount, it becomes the property of the institution and is transferred according to the appropriate act.

Prohibition and restriction of donation

The law (Article 575 of the Civil Code of the Russian Federation and Article 576 of the Civil Code of the Russian Federation) provides for some restrictions and prohibitions on the donation of common property. In particular, it is prohibited to carry out such transactions with property worth more than 3,000 rubles :

• on behalf of minors and incapacitated persons by their legal representatives;
• in favor of workers of social, medical and educational organizations by persons located in such institutions, as well as their spouses or relatives;
• in favor of state and municipal employees (if this is related to their official position or official duties).

The restriction, in turn, concerns the fact that property that is subject to the regime of common joint ownership can be donated only with the consent of all owners . In this case, it is necessary to strictly comply with the requirements of Art.

253 Civil Code of the Russian Federation. Otherwise, legal claims by interested parties and challenging the transaction in court are possible.

In addition, if the donation is made by a trustee, then the power of attorney for the right to sign the agreement must indicate both the subject of the donation and the donee.

Expert opinion

Tarasov Dmitry Timofeevich

Legal consultant with 7 years of experience. Specializes in the field of civil law. Member of the Bar Association.

It is unacceptable to enter into a gift agreement that provides for the transfer of rights to the gift after the death of the donor, since the legislator requires the use of a will for this purpose.

How to donate a share of an apartment: step-by-step instructions

What is needed to draw up a gift agreement:

1. Check to see if the other owner's consent is required. If yes, draw it up and contact a notary for certification.
2. Prepare a deed of gift. You can do this yourself, and then visit a notary, or order a registration service from him.
3. Collect documents and visit the MFC to register the DD. Ownership will pass to the donee. The appearance of the donor and the other party is required.
4. In conclusion, the recipient, 10 days after the application, should come to the MFC to receive an extract from the Unified State Register, where he will be indicated as the new owner.

Sample agreement for donating a share of an apartment

The transaction must be in writing. The DD itself is drawn up in three copies: one remains with the donor, the second with the donee, and the third is transferred to Rosreestr for state registration and subsequent storage in the archive.

The contract must contain the following clauses:

• FULL NAME. parties, passport details;
• information about the property: address, area, size of the alienated share, floor, year of construction of the house;
• information about the remaining owners: full name, consent details;
• effective date;
• signature and date of preparation.

Legal advice: If you wish, you can draw up a gift deed in the future. In this case, immediately indicate in the document when it comes into force - the period of transfer of ownership to the donee depends on this.

Sample agreement for donation of a share of an apartment (deed of gift): alt: Agreement of donation of a share of an apartment (deed of gift)

State duty

In addition to the deed of gift notary fee, you need to pay a state fee for registration with Rosreestr. Its size is 2,000 rubles. for individuals, 22,000 rub. – for organizations.

The amount is paid before submitting documents.

You won’t need a receipt, but it’s better to take one: the registration office staff checks the information about the payment on their own, but if problems arise, you can confirm that you paid the money on time.

Documentation

When applying to the MFC or Rosreestr, the same documents are provided as to a notary, but in addition you need to bring a deed of gift.

The general list of documents looks like this:

Note! If another person acts on behalf of the donee or donor, a notarized power of attorney will be required.

Allocation of a share in kind in a private house, how it is done

Hello, I am in the process of separating, the judge told me that it is not possible to segregate, since there is no separate exit in the house, we have a house with 4 apartments. Each apartment has a separate plot of land, not yet privatized. Is it possible in court before the examination to pose the question that if I build an extension in the future, I should ask for a share to be allocated now. And can you provide links to regulations where kitchen and bathroom facilities are required?

• each owner uses all the premises of the house and the area of ​​land adjacent to it;
• the owners independently agree on the use of common property;
• when it is not possible to allocate a share in kind in an apartment, compensation can be applied; Utility payments are distributed in proportion to shares.

Interesting: Seizure of real estate from what amount of debt

Restrictions

There is no restriction on the circle of recipients established by law. This means that a donation can be made to a person of any age, gender, etc.

However, for proper registration it is necessary to take into account the legal capacity of the donee. If he has not reached 18 years of age or is declared incompetent by the court, then his representative must participate in the case.

A person who is not the owner of the property or part thereof does not have the right to act as a donor.

This role cannot be filled by a person under 14 years of age.

Minors aged 14 to 18 years have the right to transfer a gift only with the permission of their parents and the consent of the guardianship and trusteeship authorities.

If a party cannot independently sign a deed of gift, he has the right to do so through a representative by proxy.

Documents for drawing up a deed of gift by a notary

A priori, it is believed that for the “purity” of the deed of gift registration, a simple written form of the document is not enough. It is advisable to back it up with a notary stamp. Indeed, the attorney d'affaires will share the responsibility with you when challenging the gift. A certified contract, moreover, in legal language, has “increased evidentiary value,” which is taken into account in a legal dispute.

When donating shared property, going to a notary's office becomes mandatory - the norm of Art. 42 Federal Law “On registration of real estate”. Without a lawyer’s verdict, Rosreestr employees will not accept documents for registration of shared ownership for the new owner.

The person with the seal will verify the legal capacity of the participants in the gratuitous transfer of housing, determine the identities of the parties, the presence of good will and understanding of the consequences of the transfer of property.

Prepare documents in advance, in addition to identification documents:

• Extracting information from the Unified State Register of Real Estate. Replaces the certificate of shared ownership and the cadastral passport of the object. It must contain the cadastral value of the share - the fee for notarization of the unconditional deed of transfer is calculated from this indicator.
• Unique characteristics of the “gift” indicating the exact address, location of the apartment, taking into account the number of floors of the building and the size of the donor’s share.
• Certificate about the number of people registered in the apartment.
• The consent of the second party to accept a share of the real estate on the terms of a disinterested transaction.

The notary prepares a document on the donation of housing in triplicate, takes into account additional wishes of the contracting parties, and includes it in the text of the document.

To certify the document you will have to pay 0.2 percent of the cadastral value of housing (real estate valuation up to 10 million rubles) plus three thousand rubles. If the property is super expensive, the duty increases significantly: 23 thousand mandatory payment plus one tenth of a percent of the contract value. The legislator has limited the appetites of notaries - no more than 50 thousand rubles are charged for certifying a deed of gift.

Close relatives pay only for the technical preparation of documents and a symbolic fee of 300 rubles.

We advise you not to be disingenuous when indicating the value of the “gift” at the notary’s office. The secret will become clear when the notary reads the extract from the unified database. A person with a seal has such powers. And then you face the threat of cancellation of the deed of gift.

Once you receive a certified contract, go register the right to legal ownership of square meters, even on the same day. When submitting documents to Rosreestr, or if documents and a donation agreement for a share of an apartment for an MFC are being submitted, both contracting parties must be present in person. Two thousand rubles for registration actions are paid by the recipient of the gift. In seven days, the new owner of the property will become the full owner and will receive the necessary documents.

A lawyer talks about options for recognizing the cancellation of a donation of part of an apartment:

If the apartment has a mortgage

Is it possible to donate a share in an apartment that has a mortgage? Shared donation of living space or part of it, if it is under a mortgage, is a complex process. The problem is that the property belongs to the bank until the loan is fully repaid.

That is why the borrower cannot dispose of it freely and at his own discretion. If the bank gives its consent to the transfer of part of the housing as a gift, then the transaction of donating a share of the apartment is possible.

Banking organizations rarely issue permission to change the owner of a residential premises or a separate part.

If the apartment is entirely owned by the son and he gives you a share of it, then notarization is really not required. This provision is spelled out in Part 1 of Art. 42 Federal Law dated July 13, 2015 No. 218-FZ “On state registration of real estate.” More precisely, it lists cases of alienation of real estate that require notarization, among which a situation similar to yours is not listed.

However, it will be necessary to pay a state fee for state registration of the transfer of ownership of real estate. When donating 1/2 share, the duty will be 2000 rubles x ½ = 1000 rubles. When donating 1/3 share: 2000 rubles x 1/3 = 666.67 rubles, etc.

At the same time, if your son does not own the entire apartment, but only a share in the right to it, which he wants to give to you, notarization becomes mandatory.

If a share in an apartment is alienated separately, the notarial form of the transaction remains. The notarial form will not be valid if the property is sold at once, that is, in full. This is specified in the law on state registration of real estate.

If you and your son are selling an apartment at the same time, and you have shared ownership, then you do not need a notary. A simple written agreement is sufficient. If you just need to register a share in the property, then you cannot do without a notary. At the same time, in Rosreest the state duty on such transactions is 2 thousand rubles, and not 13 thousand.

So, if you and your son have 1/2 shares in the apartment, and he wants to give you his half, then you need a notary. Pay the notary according to the tariffs of your region.

The transaction in question is subject to mandatory notarization. Obviously, this implies the alienation of a share in the ownership of an apartment under a gift agreement to a relative.

Transactions with shares in real estate were and are subject to mandatory notarization (in accordance with paragraph 1 of Article 42 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate” (hereinafter referred to as Law No. 218-FZ). In accordance with the current version of the law, the exception is transactions for the alienation by all participants of shared ownership of their shares under one transaction.

https://www.youtube.com/watch?v=ytdevru

The transfer of ownership of real estate is subject to state registration. It is carried out by Rosreestr and its territorial bodies (Article 131 of the Civil Code of the Russian Federation; Part 1, Article 3 of Law No. 218-FZ). For registering the transfer of ownership of a share, a state fee is established in the amount of 2 thousand rubles, multiplied by the size of the share in the ownership.

Is it possible to draw up a gift agreement without the participation of the recipient?

Is it possible to invalidate a deed of gift?

On July 31, 2020, changes to Art. 42 of Federal Law N 218-FZ, according to which, when selling common shared property, you can do without a notary by drawing up an agreement in simple written form, if all official owners of the apartment agree to this. The changes affected only those situations when an apartment is donated, sold or exchanged entirely under one contract.

If the apartment is in common shared ownership, and the owner wants to donate his share, a notary is required. Common shared ownership is when several owners own real estate, and each has a clearly defined share - 1/2, 1/3, 4/9, etc. (Clause 2 of Article 244 of the Civil Code of the Russian Federation).

In your situation, you can collect documents, draw up and have the gift deed certified by a notary, and then independently take it to the MFC or Rosreestr to register the transaction.

However, you can register the transaction itself through a notary. Then he will draw up a gift agreement, certify signatures on it from the parties to the transaction, submit the agreement and documents to Rosreestr to register the transaction.

Prices

1. Drawing up an agreement – ​​from 6 to 9 thousand rubles, depending on the notary.

2. Notarization (certification) of the agreement – ​​0.5% of the transaction amount (clause 5, clause 1, article 333.24 of the Tax Code of the Russian Federation). When donating a share of an apartment, notaries consider its cadastral value to be the transaction amount. But no less than 300 rubles and no more than 20 thousand rubles.

3. State duty - 2 thousand rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation), when submitting documents electronically through a notary there is a 30% discount - 1,400 rubles.

https://www.youtube.com/watch?v=ytcopyrightru

4. Submitting a gift agreement for registration of a transaction is free.

Text prepared by Maria Gureeva

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