Cancellation of a gift agreement

Grounds for cancellation of a gift agreement

Content

The grounds for canceling the deed of gift are determined by Art. 578 Civil Code of the Russian Federation:

• intentional killing of the donor by the donee, causing bodily harm;
• participation of the donor in bankruptcy proceedings;
• death of the donee before the donor.

There are also additional grounds on which the deed of gift is not cancelled, but is declared invalid, and the rules on the invalidity of transactions are applied to it. Let's consider the reasons for cancellation and other nuances in detail.

Attempt on the life and health of the donor

If the donee makes an attempt on the health and life of the donor, the latter has the right to demand the cancellation of the gift agreement (hereinafter - DD) in court. A similar right is granted when a crime is committed against close relatives of the donor: spouse, parents, children.

What evidence is used in court:

• police certificates;
• medical certificates;
• witness's testimonies.

If the perpetrator is convicted under the Criminal Code of the Russian Federation or brought to administrative responsibility, a verdict or court decision that has entered into force will be required.

Case study:

The woman gave her daughter an apartment as a gift. After the transaction was concluded, the recipient began to systematically beat the donor, trying to force her to leave the living space. After the last beating, the woman called the police and went to a medical facility to have the beatings removed.

An administrative case has been initiated under Art. 6.1.1 Code of Administrative Offenses of the Russian Federation. When the court decision came into force, the donor filed a claim to cancel the deed of gift to the district court, presenting evidence.

Based on the results of the consideration of the case, the deed of gift was cancelled. The daughter's ownership rights ceased, and the mother again became the owner of the apartment.

Murder of the donor by the donee

If the donee, after registration of the deed of gift, intentionally killed the donor and guilt is proven, the heirs of the latter have the right to demand cancellation of the deed of gift by going to court.

The evidence used is the medical examination report on the cause of death, the final verdict and other evidence indicating the guilt of the donee.

Case study:

The man gave his son a house with a plot of land. After some time, a conflict arose between them, a few hours after which the recipient killed his father. Investigative authorities and the court found that the son is guilty under Part 1 of Art. 105 of the Criminal Code of the Russian Federation.

The verdict came into force, and the perpetrator was sentenced to 7 years' imprisonment. The donor, in addition to his son, had a daughter who, in the absence of a deed of gift, could inherit and receive real estate. She went to court to cancel the DD, the claim was granted.

Poor treatment of gift

Cancellation due to careless handling of the donated item is possible if it is of non-property value to the donor and there is a risk of its irretrievable loss.

Possible evidence:

• expert opinion;
• witness statements;
• certificates from government agencies.

Case study:

In the Mironov family, the Dodge car was passed down from generation to generation by men, representing family value. The estimated cost of the car is 30,000,000 rubles and is considered a rarity. In 2017, the father issued a deed of gift for his son’s coming of age. According to the document, Dodge is transferred into the child's ownership free of charge.

At the time of the transaction, the car was in perfect condition and had not been used on public roads. After completing the documents, the recipient began to drive it, did not monitor its serviceability, and got into accidents several times.

The donor demanded that the deed of gift be canceled peacefully, but he did not agree to return the car. Then the man went to court. As evidence of non-property value, photographs are presented, which show that the car was indeed passed down through generations as a family heirloom. Witnesses were also brought in, and an expert opinion was presented on the presence of significant damage due to the fault of the donee.

Having considered the case, the court canceled the DD on the basis of clause 2 of Art. 578 of the Civil Code of the Russian Federation, the car was returned to the previous owner.

Donor's bankruptcy

If an individual entrepreneur or legal entity donates a valuable item at the expense of funds used for activities, and then within six months applies to an arbitration court to declare himself bankrupt, the creditor has the right to demand cancellation of the transaction.

Important! The property of an individual entrepreneur is recognized as all valuables owned by a citizen. An LLC owns only the property that is on the organization’s balance sheet. The joint liability of the founders occurs in exceptional cases.

If the donor survives the donee

If the DD indicates the possibility of cancellation, in the event of the death of the donee before the donor, the latter has the right to go to court to cancel the document. If such an opportunity is not provided, the property will be inherited by the legal successors.

As proof, a certificate of death of a citizen, as well as the DD itself, is sufficient.

Case study:

A man gave a friend one of his apartments as a gift, and a month after the transaction, the recipient died. According to the terms of the DD, in the event of death, the donation is canceled. To do this, the previous owner went to court. A decision was made, the citizen was able to return the property to ownership.

Briefly: the gift agreement is canceled on the grounds specified in Art. 578 of the Civil Code of the Russian Federation: at the request of the creditor when the donor is declared bankrupt, the likelihood of irretrievable loss as a result of mistreatment of the gift by the recipient, premeditated murder or an attempt on the life of the donor by the second party to the transaction.

Grounds for challenging a deed of gift in 2020

So, the reasons for challenging the donated apartment are:

• The contract was not drawn up or executed in accordance with the law or contains errors (Civil Code of the Russian Federation, Article 168).

The procedure or form for signing the deed of gift was violated, the apartment was not registered after signing the agreement, etc.

• The donating party at the time of concluding the transaction was not legally capable (Civil Code of the Russian Federation, Articles 177 and 171).

According to these articles of the Civil Code, a contract can be challenged if there is evidence of the donor’s physical or mental incapacity, as well as other similar situations in which the owner could not clearly account for his own actions (for example, there was alcohol or drug intoxication).

• If the donee intentionally caused physical harm to the donor or his relatives (for example, a citizen committed an attempt on life). This paragraph is regulated by Part 1 of Article 578 of the Civil Code of the Russian Federation.
• If the deed of gift for the apartment was concluded to conceal some other transaction (Civil Code of the Russian Federation, Article 170).

EVERYONE NEEDS TO KNOW THIS:

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Imaginary or so-called sham transactions are carried out, as a rule, to cover up other transactions. For example, in order to avoid paying taxes, the parties to a real estate purchase and sale transaction decide to formalize a gift transaction rather than a corresponding transaction.

• If the signing of the deed of gift was preceded by threats or similar pressure was exerted on him, as a result of which the document was signed actually against the will of the donor.
• If the donor was misled or did not fully account for his actions and their consequences.

For example, the grandmother was not completely aware of the fact that the apartment was being transferred for permanent use or if she was lied to about the consequences of such a transaction.

• If the donor has not received permission from his official spouse to enter into a donation transaction (only if the apartment acts as part of jointly acquired property).

This document must be certified by a notary.

• If the donee treats the object of the transaction improperly (Civil Code of the Russian Federation, Part 2 of Article 578).

The actions of the new apartment owner may be of a different nature, however, they should not jeopardize the condition of the property. For example, the new owner does not solve the problem with poorly installed wiring, which results in fires.

• After the death of the donee (Civil Code of the Russian Federation, part 4 of article 578).

It is worth noting that this condition must be specified when drawing up the gift agreement. Thus, the former owner will not be able to simply return it to himself after the death of the donee. To do this, he will first need to demand a reverse transfer of ownership.

When is a gift deed invalid?

There are additional grounds on which the DD is disputed, and if the decision is positive, the donated property is returned to the original owner.

They are provided for in Art. 166-179 Civil Code of the Russian Federation:

• The DD was issued on behalf of a minor in violation of the norm prohibiting donation;
• the deed of gift was drawn up without complying with the form or other conditions;
• the property was donated without the consent of the donor’s spouse;
• the contract was concluded on behalf of an incapacitated or partially capable citizen;
• the transaction was made under threats or influence of violence;
• recognition of the transaction as imaginary or feigned.

Let us consider in detail additional reasons used to invalidate transactions.

Donation on behalf of a child

According to Art. 575 of the Civil Code of the Russian Federation, property cannot be donated on behalf of a child under 14 years of age.

Violation of legal requirements

Violation of legal norms means incorrect preparation of the deed of gift, failure to comply with the procedure for registration:

• the contract does not indicate the specific subject of the donation or information about the donee;
• the deed of gift is subject to notarization, but there is no signature or seal of the notary;
• the form was not followed: for a mandatory written transaction, an oral form was used, etc.

Important! Oral donations of real estate are not permitted. DD is subject to state registration and is drawn up in writing for subsequent submission to Rosreestr. Without it, the re-registration of property rights will be denied, and nothing will have to be contested.

Feigned and imaginary transactions

In Art. 170 of the Civil Code of the Russian Federation states: a transaction made for the purpose of covering up another transaction is considered sham. Often people use the opportunity to avoid paying personal income tax when selling property, and instead of a purchase and sale agreement, they draw up a deed of gift. Such a document is considered void and is rarely challenged in the courts on these grounds.

Imaginary is a transaction concluded without the purpose of creating a legal agreement. Typically, imaginary DDs are drawn up when the debtor wants to avoid seizure and confiscation of his property. Legally, the property becomes the property of another person, but in fact the donor continues to use it.

Most often, imaginary DDs are declared invalid at the initiative of creditors.

Lack of spouse's consent

In Art. 35 of the RF IC states that when concluding transactions with common property, the consent of the second spouse is required. Property acquired from the moment of marriage registration until divorce at the registry office or the entry into force of a court decision is recognized as common property.

The spouse who has learned about the donation of real estate has the right to demand recognition of the transaction, completed in notarial form or subject to state registration, on the basis of paragraph 3 of this article, if his consent has not been received.

Note! The consent of the spouse is drawn up in writing and certified by a notary. If the couple has entered into a prenuptial agreement that establishes a separate property regime, and the donor transfers his property, the permission of the second spouse will not be required.

Deed of gift on behalf of an incapacitated person

Clause 1 clause 1 art. 575 of the Civil Code of the Russian Federation prohibits donations on behalf of an incapacitated citizen. DD is canceled at the initiative of the guardianship authorities, guardian or prosecutor's office - it all depends on the specific situation.

Drawing up a contract under the influence of misconception

Under error according to Art. 178 of the Civil Code of the Russian Federation implies:

• admission of an obvious clerical error or typo by a party to the transaction;
• the donor does not understand the nature of the transaction or the circumstances of its completion;
• there are doubts regarding the identity of the donee.

Representatives of government agencies in the interests of the donor, as well as he or his guardian, have the right to demand cancellation of the DD in such a situation.

Transaction under the influence of violence, threats

Violence is not only a physiological, but also a psychological impact on a person. This also includes threats.

If a DD is drawn up under the influence of beatings or blackmail from the recipient, it can be declared invalid by proving the specified circumstances in court.

Briefly: the agreement is declared invalid on grounds that entail the invalidity of transactions: registration of a DD by an incapacitated citizen, violent actions against the donor, lack of permission from the spouse, unlawful alienation of a child’s property.

In what cases can you challenge a deed of gift for an apartment after the death of the donor?

The law provides for the possibility of returning a gift. If the donor is dead or incapacitated, a relative or any other interested party can challenge the agreement. The transaction can be terminated in the following cases:

• The donee took the life of the donor, caused harm to him or his family members. When the donor is no longer alive, the right to challenge the document passes to his heirs.
• Present. which is of non-property value to the previous owner, may be lost due to negligence.
• The contract contains a clause on the return of property to the previous owner if he survives the donee.
• The donor, at the time of the transaction, was disabled and his mental health was in doubt.
• The deal violates legal norms and contributes to this
• The agreement covers another transaction.
• The donor was in error.

In addition, if the obligations of the parties specified in the document are not fulfilled, the contract will also be canceled. Is it possible to challenge a deed of gift for an apartment after the death of the donor and what happens after that? Recognizing the transaction as invalid after the death of the previous owner returns the property to his relatives, who receive it in the order of inheritance. Separately, it is worth considering the point about non-compliance with legal norms. The contract is invalid if:

• the donor did not have the necessary package of documents for the property;
• the donor was not its real owner;
• lack of state registration of the document;
• incorrect form of contract;
• other violations.

Ownership rights can be challenged in the following cases:

• the donor was not the sole owner, but did not provide the consent of the husband/wife;
• the donor did not take ownership on time and immediately executed a gift agreement;
• the purchase and sale document was incorrectly executed.

Is it possible to challenge a deed of gift after the death of the donor if the agreement was not concluded according to the rules? An incorrect form means, for example, additional conditions in a document or any other violation that calls into question the gratuitousness of the transaction:

• the agreement comes into force after the death of the donor (a cover for another transaction - a will);
• the donor has the right to reside in the property after signing the contract;
• indicating the amount, exchange of property.

Even when the form is followed and no actual violations are found, the contract can be canceled if the property is transferred to persons of government agencies.

What gifts can be returned by canceling the deed of gift?

Almost any gifts can be returned. The easiest way is to cancel a written contract - it already confirms the fact of the transaction. It is more difficult with an oral gift: you will need witnesses and other evidence confirming the transfer of the gift.

Let's consider what gifts can be returned, and what are the features of return.

Apartment

The deed of gift for real estate is drawn up in writing, and the transfer of ownership is registered in Rosreestr.

When going to court, you must provide your copy of the DD and evidence confirming the grounds for cancellation.

Land plot

A plot of land according to the DD is alienated along with the buildings located on it. Cancellation of a deed of gift is possible for any of the reasons presented above.

If the court decision is positive, you need to contact Rosreestr to register ownership.

House

If a private house is donated, the DD transfers ownership of the plot of land on which it is located.

To visit the court, it is recommended to take in advance documents confirming the fact that the property belongs to the plaintiff, as well as stock up on evidence. You will also need a deed of gift.

Cash

As with a car, when transferring money as a gift, it is not necessary to draw up a deed of gift in writing.

The recipient has the right to spend money at his own discretion, therefore, careless handling, entailing the risk of irretrievable loss, cannot be used as a basis - the court will refuse to satisfy such a claim.

If, after donating a large sum, the recipient beats the donor or deliberately takes his life, the chance of revocation is higher.

Other gifts

Others mean any other gifts not listed earlier: furniture, household appliances, jewelry, expensive smartphones, and even pets.

The latter also belong to the property of a citizen, and the cost of a purebred cat can be 1 million rubles.

The transfer of such gifts is usually carried out orally, and it is extremely problematic to cancel their gift.

Heirs' rights

If the donor dies, but he is left with heirs who also laid claim to the already donated property, then there is a clash between two spheres of rights - hereditary and civil.

The fact is that there are a number of circumstances that allow termination of the agreement in favor of the heirs , however, to do this you need to carefully study the information from the points given below.

So, in what cases can heirs claim property donated by their testator? There are a lot of reasons that you should take a closer look at:

1. If the transaction was drawn up at a time when the person was in a clouded state of mind and was actually incapacitated and you have evidence of this, you have the right to appeal.
2. Also subject to appeal is the situation in which the person who made the donation alienated the common property acquired with the spouse , without receiving permission from the latter.
3. If the contract was drawn up with errors , this is a reason for revision.

4. 
   If the donation was made in favor of an official , then it is also considered invalid if the amount of the gift exceeds three thousand rubles.

5. was not in fact of the property, but nevertheless made this transaction (read about donating a share without the consent of the co-owners).
6. If the donor has drawn up an inheritance agreement in favor of the heirs, then the subsequent donation agreement has no legal force.

This is important to know: A plot of land for which state ownership is not demarcated

Check whether there is at least one basis in your situation, and if there is one, you can easily challenge the procedure.

Also find out whether it is possible to conclude transactions for the donation of an apartment with an encumbrance, for example, the right of lifelong residence of the donor, registered people and debts, as well as a mortgage.

When can a deed of gift not be cancelled?

Based on Art. 579 of the Civil Code of the Russian Federation, it will not be possible to cancel the DD if the gift is of a small value up to 3,000 rubles. Even children can give such gifts, but with the consent of their parents. Written form is not required here.

Case study:

A man gave a woman earrings worth 2,900 rubles. The couple broke up after some time, and he decided to return the gift to give it to another girl. My ex-girlfriend refused to return it. There are no grounds for going to court: if the transaction price does not exceed 3,000 rubles, it cannot be canceled. Decoration can only be returned by agreement.

Briefly: you can return any gifts whose value exceeds 3,000 rubles.

Who has the right to demand cancellation of the deed of gift?

The legislation defines the circle of citizens who can apply to the courts to annul a DD.

They refer to the interested parties:

• donors;
• representatives of creditors;
• heirs;
• third parties: guardians, representatives of government agencies, etc.

A lawyer has the right to act on behalf of the plaintiff, but this will require a notarized power of attorney.

Donor

The donor may file a claim for cancellation on any of the grounds presented above.

Bank

The bank has the right to demand cancellation if it acts as a creditor of the donor and wants to achieve inclusion of his property in the bankruptcy estate during the bankruptcy procedure. A transaction is canceled if it was completed no more than six months before the start of the arbitration process.

Heirs

Successors may seek annulment of the transaction in the event of the death of the donor due to the fault of the donee, if it is established by the court.

Third parties

Guardians, representatives of guardianship authorities or the prosecutor's office usually act as third parties, acting in the interests of citizen donors.

How to cancel a deed of gift through the court: step-by-step instructions

The procedure for canceling a DD in court consists of several stages:

1. The plaintiff collects documents and evidence.
2. A statement of claim is being filed.
3. The state duty is paid in accordance with the norms of the Tax Code of the Russian Federation.
4. The documents are submitted, the judge makes a decision to initiate proceedings.
5. Trials are scheduled.
6. A decision is made.
7. The parties receive certified copies of the decision.
8. Based on the results of the proceedings, the gift is returned to the donor, heirs, or everything remains unchanged.

Let's look at each step in detail.

Step 1: Preparation of evidence and documents

You need to start with preparing the evidence base, because... It is the plaintiff who bears the burden of proof - in the Russian Federation there is a presumption of innocence. Based on the evidence, an application is drawn up, then it is used in the process of considering the case.

Step 2: drawing up a statement of claim

The application is drawn up in accordance with the requirements of Art. 131 Code of Civil Procedure of the Russian Federation. It is necessary to list all information relevant to the case.

Sample statement of claim

The statement of claim must include information about:

• date, place, time of registration of the canceled DD;
• Full name, residential address of the defendant;
• Full name, place of residence of the plaintiff. You will need passport information;
• grounds for cancellation of the DD.

It is necessary to outline the requirements: cancel the contract, terminate the defendant’s ownership rights. At the end the signature of the plaintiff is placed.

Sample statement of claim for cancellation of a gift agreement:

Step 3: payment of state duty

For individuals, the state duty is 300 rubles, organizations pay 6,000 rubles.

Money is deposited in any convenient way. Payment details can be found on the website of the judicial authority.

Step 4: Submitting documents to the court

Before going to court, you must send the claim and copies of documents to the defendant by registered mail. A receipt receipt will be provided along with other information to confirm shipment.

What documents are attached to the statement of claim:

Note! Documents are submitted to the court at the defendant’s place of residence. If the DD of real estate is cancelled, at the address of its location.

Step 5: Case Review

Submitted materials are considered for up to two months, but if the proceedings are suspended by a court ruling, the period may be extended.

Step 6: Making a decision

The decision is made by the judge alone in the deliberation room, then announced to those present in the conference room. The circumstances of the case and the grounds on which it was accepted are indicated.

Step 7: Get a copy of the solution

Within 5 days after the decision is made, the decision is issued against signature to the participants in the proceedings.

Statute of limitations

Voidable transactions are declared invalid within 1 year from the moment the plaintiff became aware of the grounds for canceling the DD. For void transactions, a period of 3 years is established from the date of commencement of execution.

If a third party who is not a party to it has learned about a void agreement, the period begins to run from the date on which he learned about the fulfillment of the terms of the transaction.

Briefly: to cancel a gift, you need to prepare documents and evidence, submit them to the court, participate in the trial and receive a certified copy of the decision. In the future, it is provided for re-registration of ownership.

How to challenge a gift agreement: instructions

Deeds of gift, like other transactions, are contested in court . The district court deals with cases of invalidity of transactions .

Any party to the transaction may file a claim to invalidate the deed of gift .

It is important not to miss the statute of limitations - the time during which the court accepts statements of claim. For void transactions it is three years, for voidable transactions - one.

The limitation period begins from the moment when:

• an insignificant transaction began to be executed;
• the plaintiff learned or should have learned about the violation of his right, about the circumstances in connection with which the transaction should be considered invalid, and about who should be the defendant;
• the circumstances that influenced the plaintiff’s decision to conclude the transaction ceased.

Attention

The statute of limitations for void transactions for third parties cannot exceed ten years from the date of commencement of its execution.

What to do after canceling the gift agreement?

When canceling the DD, the donee undertakes to return the gift in its original form, and in case of complete or partial loss, pay monetary compensation to the other party.

If the deed of gift for real estate is cancelled, the plaintiff, after the court decision comes into force, needs to come to Rosreestr and submit documents to register himself as the owner.

State fee for registration of property rights

In fact, the donor was previously the owner of the donated property, and the cancellation of the deed of gift does not provide grounds for exemption from re-registration of the transfer of ownership. Citizens pay 2,000, organizations – 22,000 rubles.

What else you need to know and understand

To challenge a gift agreement in court, according to the Civil Code? There is a concept of voidable and void transactions.

Such transactions include transactions made only for show, that is, without the intention of creating corresponding legal consequences. Or those that were made with the aim of covering up another transaction, including a transaction on different terms.

If a transaction is invalid on grounds established by law due to its recognition as such by a court, it is recognized as voidable.

As an example, we can cite a case when, fraudulently, under the guise of another agreement, a person is presented with a donation agreement for an apartment belonging to him for signature. Or a person suffering from severe chronic alcoholism is given a gift agreement to sign when he does not understand the meaning of his actions and cannot manage them. In both cases, it will be possible to challenge the deed of gift for the apartment in court.

Arbitrage practice

To cancel a DD, plaintiffs usually collect a good evidence base, but even under this condition, the courts do not always satisfy the requirements.

However, there are still examples of positive solutions:

• Decision No. 2-597/2019 2-597/2019~M-515/2019 M-515/2019 dated June 13, 2020 in case No. 2-597/2019;
• Decision No. 2-3438/2019 2-3438/2019~M-1925/2019 M-1925/2019 dated June 10, 2020 in case No. 2-3438/2019;
• Decision No. 2-1303/2019 2-1303/2019~M-739/2019 M-739/2019 dated June 7, 2020 in case No. 2-1303/2019.

Legal advice: before going to court, agree with the witnesses of the transaction to testify, because They play a big role when courts make decisions.

Lawyer's answers to popular questions

I gave the apartment to my son, he sold it. Can I challenge a deed of gift? I was against the sale.

No. After completing the DD and registering the donee as the owner, you have lost the right to the property. He can dispose of it at his own discretion.

I was beaten by my son, to whom I gave the property. She didn’t contact the police and didn’t film the beating. Is it possible to cancel a gift agreement?

Cancellation in this case is problematic, because It is medical certificates and materials from the police that confirm the existence of grounds. Witnesses can be brought in, but the chance of satisfying the demands will be minimal.

I want to cancel the deed of gift, but I missed the statute of limitations. What should I do?

If the deadline was missed for valid reasons, submit an application for reinstatement and provide evidence: a medical certificate of illness, information about long-term care for a seriously ill relative, etc.

She filed a lawsuit to cancel the donation, but the court refused to satisfy the demands. Is it possible to challenge the decision?

Yes. The decision comes into force one month after its adoption in final form. During this time, you have the right to file an appeal to a higher authority.

The court canceled the gift agreement, now I want to register the previously donated property in my name. I'm in another city. Is it possible to submit documents through State Services?

No, at the moment this option is not provided. Submit an application to Rosreestr at your location or issue a power of attorney for another person so that he can do everything through the MFC at the address where the property is located.