How to formalize the donation of an apartment to a grandson?

Updated: August 6, 2020, at 08:30

Older relatives try to provide their children and grandchildren with everything they need, including purchasing real estate. This is the best investment, because the value of the property remains consistently high, and the apartment or house will not deteriorate over the years. Unless it requires some cosmetic repairs. Having matured, the new owner will be able to begin adult life in his home. will help to formalize the transaction , according to which the owner will transfer his property to another person free of charge. It is worth studying first the nuances of the procedure, including the list of required documents and the procedure for registration.

Giving to grandchildren

It is believed that grandchildren are loved more than children. This is due to several reasons - older age, when life experience is available and the family acquires greater value. Usually, when grandchildren appear, people end their careers and retire. Accordingly, there is time that can be devoted to the kids.

Legally, natural grandchildren are considered relatives, therefore gift transactions are assessed according to standard criteria, as a gift between close relatives.

Donation is the gratuitous transfer of an object by the owner to another person. It is carried out voluntarily, the parties are aware of the consequences of their actions. Everything happens according to the deed of gift signed by them. Upon completion, the new owner must register in the Rosreestr system to confirm the status. The procedure is regulated by Article 32 of the Civil Code of the Russian Federation.

Transaction participants:

1. The donor is the owner of the transferred property. It is necessary to accompany the procedure with paperwork if the object is expensive. This is a legal requirement. The key feature of gifting is that a person is ready to give something that belongs to him for free to another. Without asking for anything in return, especially monetary reward.

2. The donee is also the recipient of the gift. He is only charged with signing the deed of gift and taking the gift. If there are restrictions on the property , they are transferred to the new owner. For example, real estate served as collateral, there is an outstanding loan, etc.

3. Notary – his participation in the case is not mandatory, he is invited at the request of the parties. Helps in drawing up an agreement, explains to the participants in the procedure their rights, as well as the consequences of their actions. Can transfer documents to Rosreestr.

It is permissible to draw up a promise of donation. When the fulfillment of obligations specified in the contents of the document is postponed for a certain period. This will help bide your time if the recipient is a minor.

Is it possible to challenge a gift agreement for grandchildren?

The deed of gift can be canceled on the basis of Art. 578 of the Civil Code of the Russian Federation, by going to court.

Donors have the right to act as initiators in several situations:

• the donee commits a crime that threatens their life or health, or the life of other close relatives;
• the grandson carelessly handles a gift that is of non-property value to the donor, and there is a possibility of irretrievable loss as a result of such handling;
• death of the donee before the donor (the transaction is canceled if this is provided for by the terms of the DD).

The right to challenge the transaction is granted to the heirs of the donor who died as a result of the intentional unlawful actions of the donee.

If the former owner bought property with money from business and then executed a deed of gift, it can be challenged by his creditors, provided that the donor signed the deed of gift within six months from the date the arbitration court decision on bankruptcy entered into legal force.

Deal nuances

Citizens often choose this type of real estate transfer. They are attracted by the simplicity and clarity of the procedure and the minimum of documents. Plus the speed of registration. It is enough to sign the deed of gift and register the rights of the new owner in Rosreestr. However, there are certain difficulties here.

Based on practice, we recommend engaging a notary.

The services of a specialist cost money, but he will provide legal support for the transaction and will subsequently be able to confirm the legal validity of the deed of gift in court.

Age limit

According to the law, a person's age matters. It determines the degree of legal liability:

1) 0-14 years - the papers will be signed by the child’s legal guardians (parents, trustees, appointed guardians). They participate in all transactions where the interests of the ward are affected.

2) 14-17 years old - a teenager is considered to have limited legal capacity. He has the right to be present in transactions where his name is mentioned. Read the documents and sign below. Trustees will be present, they will also put up a sign. Thus, instead of two, there are three parties involved in the procedure - the grandfather, his grandson and the child's guardian (parent/guardian).

3) 18 years old – full citizen. The right to marry, drive a car and manage property independently. Decisions.

The presence of title papers is required. If the grandfather is also the child's only relative, he will fulfill both roles simultaneously: the donor and the legal guardian. It is possible to draw up a unilateral agreement if there is no conflict of interests between the participants. Otherwise, guardianship must be involved. She will identify a specialist who will become the minor’s guardian.

Who pays taxes and is it necessary?

According to the provisions of Article 217 of the Tax Code of the Russian Federation (18.1 paragraph), the donee is considered to have received income, because expensive property is given to him free of charge. The donor will be a disinterested person, because didn't get anything in return.

Who pays the tax:

A. If the recipient is a stranger or distant relative, he is required to pay personal income tax after registering his rights as the new owner of the gift.

B. Close relatives are exempt from taxation.

Natural grandchildren are considered close relatives, which is confirmed by Letter of the Ministry of Finance of the Russian Federation dated August 5, 2020 N 03-04-05/45273. If the donor is their own grandparents.

Interesting! A foreign grandson is also exempt from the obligation to pay personal income tax. His status as a family member will be taken into account, not his citizenship. There is a similar mention in the text of the Letter.

Cash gifts from relatives, regardless of their size, are also not subject to tax payments.

How to apply

The deed of gift will be the main document reflecting the procedure for completing the transaction and other nuances. It is worth paying close attention to its content.

It has a “header” where the data of the parties is indicated, the name “Donation Agreement” or “Deed of Gift” and the “main part”.

What information should be included there:

· name of the transaction;

· time, place of signing the paper;

· details of participants, their details (full name, addresses, telephone numbers, etc., passport numbers);

· subject of the transaction (description, characteristics, location, cost);

· the rights and responsibilities of the participants (each is given a separate paragraph, including the legal representative of the child);

· additional conditions (termination procedure, succession, resolution of disputes, force majeure);

· signatures of participants.

If you do not have your own experience in drafting legal documents, it is better to enlist the help of a lawyer. He will show ready-made contracts, and at the same time, after listening to clients, he will draw up an agreement for them. It is important to take into account many points and describe them in detail.

Also clearly indicate your intentions so that it is difficult to challenge the procedure later.

The finished document is needed in 3 identical copies. The parties receive two, and the third is transferred to Rosreestr.

If grandchildren are minors

The older generation, who do not want children to participate in the procedure, needs to remember the young age of their grandchildren. After all, their parents will be the legal representatives.

There are several options to solve the problem:

1. Conclude a contract of promise of gift, where the key condition will be the age of majority of the donee. Until this event, the apartment will remain the property of the current owner.

2. Indicate the lack of continuity, emphasize the disinterest of the recipient’s parents. So that they can only look after the gift without owning it - pay taxes and rent, clean up.

3. A separate paragraph should describe the rights and responsibilities of the legal representative who will sign instead of the child. His details, degree of relationship, powers.

The transfer of ownership will be registered and Rosreestr will indicate the details of the child, not the representative. He has the right to be the owner of the property, but he will be able to fully manage the property later, when he grows up.

Giving to minor grandchildren in 2020

Gifting property by grandparents to their grandchildren is quite common today in our country. At the same time, the legislator does not limit the type and type of property benefits. Simply put, a grandson or granddaughter can receive everything through a deed of gift - from a teddy bear to real estate and large sums of money.

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Invalidation of the gift agreement

As we already mentioned at the beginning of the article, drawing up a gratuitous donation agreement can become difficult only if the role of the donee is a minor. The reason for the complexity lies in the fact that in this situation, consent to accept the gift is actually obtained not from the recipient, but from his legal representative, whose role in 2020 can be, according to paragraph 12, paragraph 5 of the Criminal Procedure Code of the Russian Federation, as well as 64 articles of the Family Code of the Russian Federation:

• parents;
• trustees;
• adoptive parents;
• guardians.

For this reason, the parties to the donation must indicate not only the details of the grandson/granddaughter himself, but also include in the content of the agreement information about his representative, specifying that this person is participating instead of a minor or incapacitated citizen.

What documents are needed

The donation procedure itself is simple.

The parties need to take the following actions:

1. Get together - the owner of the object, the donee (if he is old enough, 14-16 years old) and the legal representative. If the grandson is younger, only adult relatives.

2. Discuss the future transaction, including expenses associated with its implementation: services of an appraiser and notary (if a specialist is involved), state duty. Other expenses include paying rent and taxes for a minor owner. If the gift agreement has an encumbrance, then it has its own subtleties.

3. Prepare - conduct an assessment of the object to determine its exact value. Draw up a gift agreement.

4. After familiarizing themselves with the contents of the document and resolving controversial issues, the participants sign the paper. This is how the deal is done.

5. If citizens invite a lawyer, everything happens in his office. A specialist certifies the paper.

6. Participants bring documents required for registration:

• passports of the parties, birth certificate of the grandson (if he is a minor);
• power of attorney – confirms the powers of the legal representative;
• receipt of paid state duty (you need to pay 2000 rubles);

A statement is being written. Also needed:

• 3 copies of deed of gift;
• title documents (of the donor for the object of the transaction);
• extract from the house register - shows the composition of persons living inside the apartment;
• paper with BTI (if necessary);
• consent of the spouse (if the object is joint property and the owner is married);
• consent of guardianship (when the interests of children are involved).

7. With this package, citizens visit Rosreestr or send them through the MFC. This way the new owner is registered.

When a share of real estate becomes a gift, the exact amount must be indicated in the deed of gift. And first select it relative to the entire apartment/house.

Tatiana Belova

Lawyer with extensive experience in land law, real estate transactions, family law. Have experience in representing the auto and accident lawyer in the industry

Question for a lawyer

Tell me, is a notary needed in a transaction with a minor?

Transactions with them are, in principle, rather complicated. Gifts between relatives are allowed, and the alienation of property for someone else’s benefit, of course, requires the consent of the authorities and a notarial form.

Can a minor challenge a transaction upon reaching the age of participation?

Certainly. He can go to court himself or through a representative. From the age of 14. He can even challenge privatization if he believes that he has been deprived of his share, his living conditions have worsened, etc. Until the age of 14, representatives or parents act on his behalf.

Is the consent of the guardianship authorities a mandatory condition for transactions with minors?

The child is the owner, so please obtain the consent of the guardianship authorities. When he is simply registered in an apartment, for example, then it is necessary to provide another place of residence, and not to discharge the child into the void.

Drawing up a gift agreement for a grandson or granddaughter in 2020

The process of making a gift in 2020 is still regulated by Chapter 32 of the Civil Code of the Russian Federation and is understood as a gratuitous as well as irrevocable transfer of property by the donor in favor of the donee (according to the standards established in Article 572 of the Civil Code of the Russian Federation).

Today, almost any person can act as a donor, except for those listed in Article 575 of the Civil Code (for example, incapacitated or minor citizens). However, these persons can also act as recipients in such transactions.

At the same time, according to our surveys and based on the rich practice of the site’s specialists, in most cases deeds of gift are concluded between close relatives, the category of which, according to Article 14 of the Family Code of the Russian Federation, includes:

• Spouses;
• children;
• parents;
• brothers and sisters (including half-siblings);
• grandchildren;
• as well as grandparents.

Based on the norms established in the RF IC, we can recognize the fact that a gift agreement between grandparents and their grandchildren refers to transactions concluded by close relatives, which, in itself, automatically entails certain consequences of the agreement.

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Do I need to submit 3-NDFL when donating real estate?

The legislator has defined a list of requirements relating to such transactions. It includes:

1. A certain subject composition of the gift transaction . It is worth noting the fact that if the grandson is a minor, his legal representative (parent or specialist from the guardianship authorities) must participate in the transaction.
2. Compliance with the form established for such agreements . We remind you that the gift agreement, according to the current legislation of the Russian Federation as of 2020, can be concluded between the parties either orally or in simple written form. At the same time, notarization of the agreement today is still not mandatory. However, in certain situations, the list of which can be found in Article 574 of the Civil Code of the Russian Federation, a deed of gift must be concluded exclusively in writing!
3. The presence of a sign that the transaction is gratuitous . Since donation is a completely gratuitous transaction, it is recommended that the content of the contract indicate the donor’s desire to reduce his own property, thereby increasing the property of the donee without any counterclaims to the latter. If such conditions exist, the donation will be declared invalid (according to Articles 167 and 170 of the Civil Code of the Russian Federation).
4. A list of the main properties and characteristics of the donated item that would distinguish it from similar ones.

We also remind you that the parties to the agreement have the right to terminate the deed of gift unilaterally. Thus, according to the norms described in Article 573 of the Civil Code of the Russian Federation, the recipient has the right to refuse to accept the gift, and, based on Articles 577-578 of the same legislative act, the donor may refuse to fulfill the agreement.

Important : A deed of gift between grandparents and grandchildren can be real (the transfer of the object of the gift is carried out upon concluding an agreement) or consensual (the so-called contract of promise of a gift in the future), when the donor promises to transfer the gift into the ownership of the donee within the period established in the contents of the gift agreement.

Thus, when drawing up a gift agreement, the parties are required to include the following clauses, without which the transaction can be classified by the legislator as void and invalid:

• Name of the transaction (for example, a donation agreement for a car, apartment, house);
• place of conclusion of the agreement and date;
• important information about the parties to the donation, as well as their real details;
• object of the transaction;
• characteristics and unique properties of the donated item;
• obligations, as well as rights of the donor and the donee;
• a list of special conditions (for example, a list of grounds for changing or terminating the contract);
• degree of relationship between the parties (helps save time when determining exemption from personal income tax);
• signatures.

How to give an apartment to your grandchildren in 2020

Very often, having owned residential property, grandparents, for certain reasons, want to transfer it into the ownership not of their children, but into the ownership of a grandson or granddaughter.

First of all, when drawing up transactions the subject of which are real estate objects (the category of which includes, according to Articles 15 and 16 of the Housing Code of the Russian Federation and Article 130 of the Civil Code, private houses and apartments), it is necessary to take into account that such deeds of gift require mandatory state registration of the right property of the new owner.

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State registration of a gift agreement in Rosreestr

In addition, when deciding to transfer an apartment in this way, it is worth considering the following important features of the transaction:

1. The donation must be formalized in simple written form. This is a mandatory condition established by the legislator.
2. The contents of the deed of gift must list the characteristics of the housing that would distinguish it from similar real estate properties (information from the technical and cadastral passports, floor, area, number of rooms, address, etc.). In the event that we are talking about a gratuitous donation of a share, its size must be indicated.
3. The text of the agreement must include a link to title documentation confirming the donor’s ownership of the apartment.
4. It is recommended to indicate the degree of relationship of the parties in the deed of gift. This will make the 2020 gift tax exemption process much easier.
5. Also, experienced lawyers of the website “Legal Aid” recommend that the special terms of the gift agreement be specified in the deed (any restrictions or encumbrances, the donor’s right to live in the apartment donated to him, etc.).
6. The text of the main document should indicate the actual value of the property at the time of the transaction.
7. To the main deed of gift, the parties can draw up an act of acceptance and transfer, which reflects the execution of the agreement (this document is not mandatory).

The next no less important stage, without which the gift will be declared invalid, is the state registration of the property rights of the grandson or granddaughter. It is after receiving the appropriate certificate that the donee is considered the legal owner of the apartment.

The registration procedure is regulated by Federal Law No. 122, which was adopted on July 21, 1997 (“On state registration of rights...”). To implement this, the parties to the donation of real estate need to draw up an apartment donation agreement, and then provide it to Rosreestr employees along with the following documents:

• passports of the donor and donee, as well as their legal representatives, if any are involved in the transaction;
• a receipt for successful payment of the state fee for registering the transfer of ownership, the amount of which for 2020 is 2,000 Russian rubles (according to 22 subparagraph 1 of paragraph 333.33 of the article of the Tax Code of the Russian Federation);
• statement;
• deed of gift in 3 copies;
• all available title documents for the donated apartment;
• all technical documentation for the living space (passport, BTI certificates, etc.);
• an extract from the house register stating that the housing transferred under the donation agreement is/is not lived in by citizens other than the owner;
• notarized consent to the transaction of the second spouse, if the donated apartment is part of the property acquired jointly during the marriage;
• written consent of employees of the guardianship and trusteeship authorities, if the donated living space is inhabited by incapacitated or minor persons whose rights may be violated as a result of the transaction.

Donation of an apartment, car, house, land

Although the procedure looks standard, there are slight differences. It is important to estimate the consequences of this transaction in advance. Be sure to accompany it with a written agreement. So that each participant knows what rights and responsibilities he will have.

Apartment

It is easier to transfer this property; for this you will need (deed of gift for the apartment):

· find out its estimated value;

· register the redevelopment, if it was carried out;

· obtain the written consent of the spouse (joint ownership);

· if there are several recipients, allocate shares to them or indicate that they are equal owners of one object;

· remove encumbrances, if any, so that young children do not later have to pay other people’s debts.

The list of documents remains unchanged (see above). You can specify in a special clause the preservation of the former owner’s right of residence. If he has only one place to live.

Car

The owner has the right to give his favorite car to anyone. Why does he act through the traffic police and the procedure is as follows:

1. Having visited the institution, the citizen finds out whether there are fines and unpaid transport tax. It pays off debts; without this, you cannot deregister the car.

2. Removes the vehicle from the system registration. They take his numbers.

3. Thanks to the services of an appraiser, he finds out the real value of the car or determines it independently (you need to write real numbers, without inflating/lowering).

4. Draws up a deed of gift for the car (3 copies), attaching the following documents to it:

• passports of the parties, birth certificate (if the grandson is young);
• vehicle registration certificate;
• STS.

Participants sign the document. It is not necessary to have it certified by a notary, but it is advisable.

5. Transfer of the car to the new owner (his representative). Applying for insurance – why participants visit the insurance company.

6. The new owner registers the car in his name with the traffic police 10 days after signing the agreement. The owner will be a child. You can carry out registration later, without the participation of the former owner, but it is better to do this in advance. If you have debts, check their existence at the same time.

To register you need:

1. statement addressed to the traffic police (written by a representative);
2. vehicle registration certificate (PTS);
3. STS registration certificate;
4. deed of gift;
5. new MTPL policy;
6. receipt of paid state duty1;
7. passport of the owner/representative;
8. guardian's power of attorney.

You can get by with an oral agreement, but for the sake of fidelity and the possibility of performing various actions with the car, it is better to draw up a written agreement.

At home

According to the law, the house + land (deed for the house) underneath it are an indivisible whole. Therefore, when appraising real estate, the values ​​of both items will be combined. It is necessary to carry out land surveying to determine the actual boundaries of the site, if this has not been done previously.

The list of documents is similar to the transaction for the transfer of an apartment.

Earth

Under the new legislation, landowners must register their plots if they have not done so previously. Why is land surveying followed by defining boundaries necessary?

This is an expensive, time-consuming, but necessary procedure. Without it, even the legal owner will not be able to make any transactions with the land (land deed), including gratuitous transfer. The rest of the procedure looks standard.

Registration of a deed of gift from a notary: documents and cost

The costs of a notary when drawing up a gift agreement are justified if the parties to the transaction have concerns that over time the interested parties may want to challenge the gift agreement for the apartment. In this case, the notary, as an independent entity, can act as a witness in court, confirming that the actions of the parties to the transaction were voluntary and conscious.

The question of how to draw up a deed of gift for an apartment, how much such a transaction costs, taking into account the services of a notary, is worth studying in more detail.

Documents for a notary

• passports;
• certificate of ownership of the apartment;
• extract from the Unified State Register for real estate;
• an extract from the house register about the registered residents of the apartment (not every notary will require such a certificate);
• For apartments that are in joint ownership, the consent of all co-owners of the property must be certified.

Drawing up a gift agreement with a notary requires indicating the cost of the apartment, established by agreement of the parties. If the amount is too high, the transaction may be declared invalid upon registration.

State duty and notary services

• 2,000 rubles - drawing up an agreement;
• 1400 rubles – registration of the agreement with the Registration Chamber;
• if the apartment is gifted to family members (spouse, children, parents, as well as brothers, sisters, grandparents, grandchildren), a state duty is charged in the amount of 0.3% of the cost of the apartment specified in the contract, minimum 300 rubles;
• When alienating an apartment to everyone else, the state duty is charged:
• 1% of the cost of housing (up to 1 million rubles) specified in the contract (not less than 300 rubles);
• at a cost of 1 – 10 million rubles. – 0.75% of the amount exceeding 1 million rubles and another 10,000 rubles.

By law, these costs are borne by the recipient party, but by oral agreement, payment can be borne by either party separately or jointly in any proportions.

The notary retains all signed documents and receipts for payment of fees and services (except passports), issues a receipt and sets a date for the next meeting. But you can pick up the documents yourself, at the Registration Chamber, if you have a passport and receipts.

Having received the certificate and deed of gift in hand, the recipient becomes the full owner, and the deed of gift can only be challenged in court, which is quite difficult in such a situation.