When can a donation be cancelled?
A deed of gift for an apartment cannot simply be canceled during the life of the donor. You need serious reasons to take a gift back. The grounds for cancellation of a transaction are contained in Art. 578 of the Civil Code.
4 reasons to cancel a donation:
- The donee inflicts bodily harm on the donor himself or his family members.
- Makes an attempt to kill the donor or his close relatives.
- The donee is careless with the property, creating the risk of its loss. And the property itself has special meaning for the donor.
- The next point relates to legal entities. It is possible to cancel a gift agreement when a company is on the verge of bankruptcy and deliberately hides property. The purpose of such a transaction is to avoid paying debts to creditors.
The housing is returned in the same form in which it was at the time of cancellation of the deed of gift. In this case, all income received remains with the person who received the gift. The return of property occurs if it has been preserved. Once the apartment has already been sold, it will not be possible to return it.
Answers from experts
Elena Vinogradova:
A will can be rewritten 10 times. But not a gift, because from the moment the gift agreement is registered, the apartment already belongs to the donee. “A person registered in the same area” is walking through the forest, because the owner of the apartment disposes of it according to his own understanding, and he does not care about anyone’s ideas about justice or injustice. private property is sacred, as the Americans say in such cases)))
begonija:
Only through the court!
Lyudmila Nazarova:
It is very difficult, from the moment the deed of gift is written and registered, this apartment no longer belongs to the Donor. Unless the court recognizes the transaction as void, for example, due to the mental illness of the Donor.
Stranger))):
Anyone who considers the gift unfair can appeal to the United Nations, he has no rights to the apartment, he has the right to go to court on this matter as well, his rights have not been violated. . The one who gave the gift can cancel the gift agreement or recognize this agreement as invalid, with great difficulty, but he can... Read more HERE
if the donee made an attempt on the life of the donor or members of his family or close relatives, or intentionally caused bodily harm to the donor; if the donee's handling of a donated item, which is of great non-property value to the donor, creates a threat of its irretrievable loss, the donor has the right to demand cancellation of the donation through the court; if the gift agreement stipulates the donor’s right to cancel the donation if he survives the donee; if, after concluding a gift agreement in the future, the property or marital status or health status of the donor has changed so much that the execution of the agreement will lead to a significant decrease in his standard of living.
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Aniya:
it is impossible to rewrite the gift agreement, you can only declare it invalid if there are grounds for it
Sofia Skobeleva:
Study, study and again...
Natalia Bondareva:
No, of course, only through the court, and only the donor can challenge it.
Alexander Poroshin:
To do this, you need to cancel the donation to the previous donee. If he made an attempt on your life or caused you bodily harm. It’s simply impossible to re-gift.
Emma:
What does it mean that it was donated, but not re-registered; in words, it was something like a gift. In any case, the gift agreement is subject to mandatory state legislation. registration. , if this did not happen, then neither did the donation. And the gift agreement that comes into force after the death of the donor is void. Article 223. The moment of emergence of ownership rights of the acquirer under the agreement with clause 3 of Art. 574 Civil Code of the Russian Federation
Observer:
If it is certified by a notary, then yes!
Alexander:
If the agreement did not pass state registration, then nothing was donated during his lifetime. And there is no “deed of gift”.
Lydia:
If the deed of gift is in hand and certified by a notary, it is valid.
Sergey Babin:
Very often people are mistaken about a notary! 1. In what year was the donation agreement signed by a notary? If it was before 1998, then most likely everything is fine, and the agreement is concluded. You need to find the BTI stamp in the contract itself, where it will be written that “this contract has been registered…. ". If there is such a thing, then everything is fine. 2. If the agreement was signed by a notary after 1998, then it is subject to mandatory state registration (in the registry chamber). It is necessary for both the Donee and the Donor to appear there together (or their representatives with a power of attorney). Only after this procedure will the contract be CONCLUDED and you will have rights to the property!
3. WHEN SIGNING AN AGREEMENT WITH A NOTARY FOR PURCHASE AND SALE, DONATION, EXCHANGE BY WHICH YOU ARE PURCHASING RESIDENTIAL PREMISES (APARTMENTS, HOUSES, ROOMS)!!! IT IS NOT YET CONCLUDED!!!! THE AGREEMENT WILL BE CONCLUDED ONLY FROM THE MOMENT OF ITS STATE REGISTRATION IN THE ROSSREESTR (REG CHAMBER)! The notary does not conduct state registration!!!!
Alexander Klimenkov:
Even during the life of the donor, in such a situation, it was invalid!
Alenka:
the gift agreement comes into force from the moment of registration in Rosreestr; if the agreement is not registered, it means it was not concluded; a lot of real estate was returned back if the agreement was not registered
Cancellation of donation by agreement of the parties
The question of whether it is possible to change the deed of gift is resolved positively when both parties give their consent to this.
Important! The property must be renounced before it is transferred. When the rights have already been registered, the refusal is made in writing. This is how a deed of gift differs from a will. After all, a will can be revoked at any time.
Otherwise, the deal can only be canceled through the courts. As a rule, no one wants to give gifts voluntarily, so disputes are often considered in court.
Challenging through court
To change the deed of gift for an apartment, you need to prove that the donor was incapacitated at the time of the transaction.
5 reasons for canceling a contract:
- The donor was drunk at the time of signing the agreement or was abusing drugs.
- Incapacity of the donor.
- The man was forced to sign over the apartment by force.
- The deal is a sham. The purpose of signing a deed of gift is to avoid paying taxes. The donation covers the purchase and sale agreement.
- The documents are forged.
It also creates a reason for canceling the agreement when the text of the document is incorrectly formatted. If it is indicated that the property will be transferred after the death of the donor, this will already be a will, not a deed of gift. It is also possible to redo documents if the donee has not bothered to formalize the rights to the property. When the right of ownership is not registered, the property passes into the estate. Other relatives will be able to get the apartment.
Deadlines for re-registration of real estate after a donation agreement
The donor's relatives can challenge the transaction, based on the fact that he was not capable or reasonable when signing the agreement.
- If the recipient does not dispose of the property properly, the property will be lost or damaged.
- When the recipient does not need the property and refuses to receive it. Legally, the refusal must also be formalized.
- If the guardians, social security specialists, and authorities are not direct relatives of the person to whom they are going to donate the property.
- When the donor does not have an agreement confirming his right to this property.
- If errors were made in the contract.
- When the donor was forced to sign a document, as well as when the donor was threatened.
- If you find yourself on this list, then it is better to refuse the gift agreement.
Terms of execution of the donation agreement
The procedure for completing a real estate purchase and sale transaction can be divided into several stages:
- Preparation of certain documents for the apartment. The process is carried out by the seller. At the same time, you can search for buyers.
- Drawing up a purchase and sale agreement.
- Signing an agreement with the buyer. The new owner pays for the transaction, after which you can go to the MFC and register the agreement.
- Submitting a package of papers to Rosreestr to obtain a certificate of ownership of real estate.
Nothing special. The main problem when selling real estate is drawing up a legally competent contract. Now a sample of paper can be easily found on the World Wide Web.
What is the validity period of a deed of gift for real estate?
It cannot be written off either from the donor or the recipient.
- The donor cannot be a minor or an incapacitated citizen of the Russian Federation.
- Real estate cannot be re-registered after the death of the donor. You will need to formalize the agreement through a court.
- The role of donor can be: employees of social authorities, guardians and trustees, if they and the recipient citizens are relatives. Otherwise, the transaction will be considered invalid.
- One of the parents has the full right to donate property to the child, and there will be no need to obtain consent from the second spouse. The main condition is that the property be privatized.
- The donor has no right to demand anything from the future owner of the property. For example, citizen Mukhin executed a gift deed for his minor son.
Additional grounds for cancellation
The question of whether it is possible to re-register a deed of gift is resolved positively when there is no approval of the second spouse for the transaction. For example, a wife gave an apartment to her niece, but did not receive her husband’s approval for the transaction. This will be a reason to cancel the agreement. After canceling the transaction, you can start rewriting the document.
The question of whether a deed of gift can be rewritten often arises when the financial situation of the donor changes. For example, a person has nowhere to live. The case materials are considered by the court. The decision is made based on the evidence presented.
There are people who are not allowed to give. These include civil servants, education and medical workers. Due to their professional activities, they cannot accept property as a gift.
An official representative cannot sign a deed of gift for another person when his ward is under fourteen years of age or is incapacitated.
The question of whether a deed of gift can be canceled often has to be decided by bank employees. The borrower can deliberately alienate the living space so that the bank does not take away the apartment. Such transactions are challenged in court.
Procedure for re-registration to another person
Another option for the development of events is the need to rewrite the deed of gift to another person before the death of the donor. Since the agreement acquires legal force only with notarization, it can only be redone with the participation of a notary.
Re-issuance of a deed of gift and cancellation is permitted by law under similar conditions. An exception would be a deterioration in the financial condition of the donor.
Rewriting a contract to another person is permitted in two situations:
- The donee died before the agreement was recognized as completed by government agencies, and the text does not contain a condition that in this case the successors of the donee have the right to receive the gift as an inheritance.
- If the deed of gift was drawn up under the threat of the life of the previous owner, he is authorized to terminate the agreement and rewrite it to another person.
The rule here is the same for a will and a donation: legal force is assigned to the last copy. A deed of gift is the easiest way to transfer the rights to an apartment from the previous owner to the current one, but due to the complexity of the cancellation procedure, such agreements should be drawn up with extreme care.
Re-registration of deed of gift
The recipient himself can transfer the gift to another person at any time. For this, a simple written agreement is sufficient. Transactions related to the alienation of shares are subject to notarization.
When a person becomes an owner, he receives full right to dispose of property at his own discretion.
Re-registration costs include notary fees and state registration fees.
You can draw up a contract yourself, but you must comply with legal requirements.
Re-registration methods
When transferring an apartment to relatives, you need to understand that not every transaction provided for by civil law can help with this. In addition, when a person sets the goal of avoiding unnecessary expenses, namely paying taxes, then preference should be given to a specific version of the agreement. That is why it is possible to identify several options that will allow relatives to re-arrange their housing as profitably as possible.
The legislator offers five ways to complete a transaction to transfer an apartment to one of the relatives:
- Will. The standard option for transferring your property to someone. However, it cannot be implemented at any time, but only after the death of the testator, which forces the implementation of the transaction into certain frameworks, imposing restrictions.
- Deed of gift. The most suitable option for transferring housing to a relative. It is the gift agreement that allows you to avoid paying taxes when receiving an apartment. In addition, the procedure itself is simple and does not require a lot of expenses and actions. In order for the transaction to be as safe as possible, despite the fact that a relative is involved in it, such an agreement should be certified by a notary.
- Sale of property. The point of this action is for the recipient of the apartment to transfer a certain amount for it. Its implementation will be impossible if a person under the age of eighteen or incompetent is registered in the apartment, as well as in the absence of the consent of persons who oppose such an act and have the right to do so. Otherwise there are no obstacles. Payment for housing will be made according to the act of sale in installments or even under a loan agreement.
- Rent. Less relevant way. The point is that the recipient of the housing pays rent payments for a long time. However, more often this option is applied not to apartments, but to private houses.
- Agreement between spouses. This option exists when a husband or wife wants to transfer their part of the apartment, for example, to children from another marriage. In this case, the consent of both is required, since according to the law, all property acquired during marriage will be recognized as community property.
There are no other options that would make the procedure a little easier. Purchase and sale or exchange agreements will not change the order of their conclusion in any way, even if the parties to the transaction are relatives.
A donation agreement as a method of re-registration of housing is always a gratuitous transaction option, but with the participation of two parties, which distinguishes it from other proposed methods.
Of all the proposed options, the deed of gift is the most successful. Firstly, tax. The law directly provides that if one relative gives housing to another, then the thirteen percent tax will not be paid, but provided that the relatives are close. Secondly, the procedure itself, which is significantly simplified and requires only competent drafting of the text of the contract. And thirdly, the option under consideration applies to all types of family relationships, unlike, for example, an agreement between spouses or a will.
Donation
To transfer property free of charge, there is officially a gift agreement. It is usually concluded between people who are in a close relationship. Unlike the sale and purchase of a gift, the living space is transferred to a specific person, that is, subsequently the spouse of the donee cannot claim to divide the donated property.
However, if a spouse during a divorce can prove that with his or her help the market value of the apartment has increased (for example, due to renovations), then the living space may be included in the joint property. The disadvantage of a gift agreement is that the new owner will still have to pay property taxes. The only exceptions are deeds of gift concluded between close relatives (parents and children, grandparents, spouses, full and half brothers and sisters).
Inheritance
By will, the apartment can be transferred to any person chosen by the owner of the living space. If the inheritance document has not been drawn up, the deceased’s immediate relatives will claim the property. This is called legal inheritance.
In both cases, entry into the inheritance must be carried out within six months. This method has a “pitfall” that few people know about – the fee for a certificate of inheritance rights (up to 1,000,000 rubles). Only those recipients who, before the death of the former owner, actually lived with him in the same living space, are exempt from payment.
Also, even with a properly executed will, there is a “mandatory share”. This part of the inheritance belongs to a specific person, regardless of what the testator decided. Such people include minor children of the deceased or persons who were dependent on the former owner of the apartment. The size of the obligatory share is half of what such an heir should have received by law.
Now it is planned to amend the rules on inheritance in the Civil Code (Civil Code), according to which a new type of document will appear - an inheritance agreement. It differs from a will in that the terms of inheritance will be approved by two parties - the current and future owner. In addition to transferring his property, the owner will be able to indicate additional duties of the heir that he will have to fulfill.
Will
Persons who received property under a will may have the right to all property or to a share in an apartment. The document records the owner’s will to dispose of the property after his death. The owner can independently identify an heir. Recipients are designated as relatives or not.
The transferred property can be bequeathed to one person or several. In the second case, the property will be divided into shares recorded in the will, or in proportional form, if nothing is said in this regard. The will is registered with a notary. The requirement for its execution is the legal capacity of the person, otherwise the document may be challenged in court.
Until death, the testator remains the owner of the property. Only after his death will it be possible to register the apartment. During his lifetime, the testator has the right to rent out housing, transfer it for use, and make other transactions. At any time, he can revoke the will or make a new one, and therefore the old one will not be valid.
A will is not an obligation to transfer real estate. This distinguishes a transaction from a gift. Since in the latter case the person receives the apartment upon execution of the contract. From the moment of registration of ownership, a person can dispose of his property. And the former owner cannot lay claim to it.
The transfer of an apartment from the deceased to the heirs is also possible if there is no will. Then the transfer procedure is approved on the basis of inheritance by law. Since 2006, there is no need to pay tax when inheriting an apartment. Moreover, this does not require confirmation of family relationships between the parties to the transaction.
Alternative options
Alternative options for re-registering an apartment to a relative is to use the right to rent, but only if the owner needs appropriate care. The annuity can also be for life, if the persons have entered into an agreement that the citizen will care for the owner until the end of his days.
