Is it possible to donate an apartment by deed of gift without the consent of the spouse?

Immediately after the abolition of the gift tax, cases of transferring various real estate as gifts increased noticeably. This transaction has many nuances that must be taken into account at the stage of preparation for it. As with the sale of property, in the case of gratuitous transfer of an apartment into the ownership of another person, a corresponding agreement is drawn up - a deed of gift.

But what if the apartment is not individually owned, but jointly owned - between husband and wife? Is the consent of the other spouse required to conclude a deed of gift? Are there alternatives to such a document? Read about this in this article. In addition, we will tell you how to obtain a permit and in what cases it may be needed.

When is permission not required?

A deed of gift for real estate is the most convenient way to transfer property from one person to another. If the donor is married, the question immediately arises as to whether his spouse’s consent is needed to donate the apartment. This need arises when the property is jointly owned by both spouses. For example, if it was purchased after marriage. However, in some cases, the husband or wife's permission to participate in the transaction is not required. You can donate an apartment without asking your spouse’s consent if:

• The property was received by will or as a gift;
• The apartment was owned by one of the spouses even before marriage;;
• The spouse allocated a share in the apartment during the marriage;
• The husband has invested large sums of money in the apartment and can document this.

Information!

The consent of one of the partners indicates that he is aware of the upcoming transaction and has no objections to it. This means that he will not be able to go to court and challenge the agreement by revoking his permission to donate the apartment. Many spouses, in order to avoid such disputes, draw up a prenuptial agreement regulating financial and property relations. So, if available, pay special attention to the clause regarding the disposal of property acquired during marriage.

Spouse's consent is required!

However, if you pay attention to Article 37 of the Civil Code of the Russian Federation, you will notice that even property acquired before marriage can be recognized as jointly acquired. Accordingly, consent to donate such real estate will be required. Let's look at the situation using a specific example.

One of the spouses had their own living space before marriage. According to the law, it cannot be considered common property. However, if the second spouse invested personal funds in major repairs, restoration or reconstruction of this property and was able to prove his material costs in court, he may qualify for a share. In this case, when donating an apartment in which the second spouse’s money is invested, his material consent will be required.

The situation may be the opposite. For example, the husband owned part of the house before marriage. After marriage, part of the house was sold and an apartment was purchased with the proceeds. By law, this is joint property.

However, if the husband can prove in court that the property was purchased with his funds, ownership will pass to him. Accordingly, a deed of gift for such an apartment can be issued without the consent of the wife.

In any case, if the property is acquired jointly, the consent of the spouse is required for transactions.

Important! If you are seeking permission to donate an apartment, remember that you need notarized consent! That is, permission certified by a notary. Verbal permission has no legal force!

The spouse's consent form for the alienation of real estate must include the following items:

1. Passport data (number, series, date and place of birth, residential address).
2. Details of the marriage certificate or divorce document.
3. Indication of the object of donation for which consent is given.

Please note that in cases where the apartment is not only the property of the spouses, it is necessary to obtain written permission for the transaction, signed by all owners! Usually this document is accompanied by an indication of the size of the shares of all homeowners.

Sometimes it is necessary to obtain consent from the other half to donate an apartment even after the divorce. This is necessary in cases where no documented division of property has taken place within three years from the date of divorce .

If there is no notarial agreement to resolve property disputes, the apartment still remains in joint ownership. Accordingly, the spouse will be able to invalidate the transaction in court, based on a violation of Articles 34 and 35 of the Family Code and Article 168 of the Civil Code of the Russian Federation.

It is worth noting that in this case the court very often takes the side of the person in whose name the deed of gift for the apartment was issued. An exception may be the case when the recipient was aware of unresolved property disputes.

It is necessary to clarify that such a situation has a statute of limitations. It is regulated by Article No. 181 of the Civil Code of the Russian Federation and is 36 months from the date of registration of the deed of gift.

The deadline for filing claims may be extended if the person was not aware of the alienation of real estate. In this case, the deadline for filing the application is counted from the day when the ex-spouse became aware of the donation of the apartment. This procedure is determined by Article 220 of the Civil Code of the Russian Federation.

When understanding the question of whether a spouse’s consent is needed for real estate transactions, we can answer that we need to proceed from specific life situations. When making a donation of an apartment, it is better to use the services of a lawyer or notary, although according to the law, you can conclude the deal yourself. This will avoid legal incidents.

In addition, you must be careful about the documents. In particular, compare the time of marriage in the donor’s passport with the date of acquisition of the alienated living space.

When Spousal Consent Is Not Required

Donating an apartment without the permission of the second spouse can be done when the property was acquired before marriage . According to the law, this cannot be considered jointly acquired property, so all transactions can be carried out independently.

Real estate is recognized as sole ownership in the following cases:

1. When property is received by inheritance or as a gift. This is considered a free receipt of the property; accordingly, transactions with it can be carried out independently. Even if the other half protests.
2. Marriage contract. Based on this document, notarized consent to individual ownership can be issued. Then each of the spouses independently disposes of their part of the property.
3. Privatization. If only one of the spouses participated in the privatization of living space, then he has the right to enter into any real estate transactions without the consent of the other half.

Interesting! Having property in shared ownership, one of the spouses can give his part to the other. In this case, the entire property will pass to the benefit of the recipient!

In these cases, the sample contract is standard. It is concluded on the basis of Article 36 of the Civil Code of the Russian Federation.

Sample document drafting

The spouse’s consent to donate an apartment is a document included in the list of required documents for drawing up a deed of gift . It has a conventional structure and a fairly free form. But the legislation puts forward several mandatory requirements for drawing up permission to draw up a deed of gift. So, it should contain the following details:

• Title – “Consent to enter into a transaction with jointly owned property”;
• Place and date of document preparation;
• Passport details of the spouse giving consent to the transaction;
• Information about the transaction for which consent is provided;
• Information about the property being donated;
• A clause stating that the spouses have no claims against each other;
• Additional terms of the transaction;
• Signature of the applicant and notary.

Download

Sample spouse consent.doc

Instead of consent, you can prepare a correctly and competently drawn up power of attorney for donation. In this case, the consent of the spouse will not be required, since this document already confirms the fact that he, in turn, knows about the upcoming transaction. Pay special attention to its validity period - it should not be indefinite.

Information!

Many property owners planning to carry out a gift transaction mistakenly believe that if they divorced their ex-spouse, then they don’t have to worry about the presence of consent. But if the donor purchased the apartment during the marriage, and no more than three years have passed since the divorce, he will also have to obtain a spouse’s permission.

How to properly formalize your spouse’s consent to donate an apartment

The consent of the other spouse to donate real estate must be made only in writing. Therefore, one must express one’s will to donate not only in the contract itself, but also in the form of a separate document.

At the same time, there is no provision in the law prohibiting one from drawing up consent on one’s own. But then it is necessary to clearly indicate information about the subject of the donation (address, area, cadastral number) and passport details of the person to whom the gift is made.

However, there are a number of cases when the law obliges the parties to contact a notary:

• when donating any real estate, since all such transactions are registered in Rosreestr;
• if the gift agreement itself is drawn up by a notary.

To obtain a spouse's consent, submit the following documents to a notary:

• passports of spouses;
• marriage certificate;
• documents for the apartment establishing the ownership of one of the spouses;
• technical or cadastral plan of the apartment with information about its price (inventory or cadastral);
• gift agreement, if it has already been drawn up and signed by the parties.

How to correctly draw up an apartment donation agreement with the consent of your spouse

The deed of gift for the apartment is drawn up in writing. There is no special sample. Such permission is issued separately from the contract.

There is a practice when the text of the deed of gift indicates that the spouse’s permission is already available. For example, the following phrases are often found in a gift agreement: “When concluding this agreement, Articles 33-35 of the Family Code were observed.” This is Chapter 7 of the RF IC.

However, even a contract drawn up in this way will not replace the consent of the spouse. After all, only one of them signs the contract. Therefore, it is impossible to guarantee that the other person already has permission and that he knows about this transaction. So to the question? Is it possible to draw up a deed of gift without the consent of the spouse, the answer is unequivocal - no.

How to apply for a permit?

Like many other documents necessary for registering a deed of gift, the consent of the spouse is subject to notarization. To do this, contact the nearest notary office directly on the day of the transaction. As for its alienation, you can cancel the document in the same place where it was certified. In both cases, it is enough to provide the notary with the following documents:

• Spouses' passports;
• An agreement or deed indicating the method of obtaining an apartment (purchase and sale agreement, deed of gift, will);
• Certificate of ownership;
• Receipt for payment of notary services;
• Receipt for payment of state duty upon conclusion of the contract.

The consent itself is usually drawn up in the presence of a notary and both spouses. Immediately after checking all the prepared documents, the authorized person will confirm the validity of the permit and hand it over to the husband and wife. Consent can only be canceled before the transaction is considered completed.

Sometimes situations arise when one of the spouses does not agree to donate an apartment that is jointly owned. What to do in such a situation? You have two options: try to resolve this issue peacefully, through negotiations, or allocate a share of each owner in kind. In the latter case, you sign an agreement on the division of property, receive a certificate of ownership of half of the apartment, and only after that can you dispose of it at your own discretion, including registering it as an object of gift.

Conversely, a spouse who has not given his consent to donate an apartment can challenge the deed of gift in court.
To do this, you will have to prepare an impressive evidence base that will confirm that your spouse did not have the right to carry out a transaction with the apartment without your knowledge. You can invalidate the deed of gift within a year from the moment you learn of the violation. Share:

What to do if it is not possible to obtain consent for a transaction

It will not be possible to give an apartment without the consent of the second spouse. There are times when the relationship between husband and wife is quite strained, at such moments you have to try to convince the other half that this deal is necessary. If contact is not established, then there are other ways out of this situation. Most often, spouses agree that they divide joint property into shares. Thus, the donor, having allocated his part in the apartment, can independently use it, including as a gift.

The argument about living in the same apartment with the new owner can become significant in resolving a controversial issue and will help resolve it.

When allocating shares, special attention should be paid to the issue of agreement on the use of one’s shares. This agreement must include a clause in which the spouses establish the right to use their property at their own discretion. If the spouses have such a document, then it may well replace the spouse’s consent to the donation.

There is one important nuance in the entire donation procedure. The second spouse, at any time before registering ownership of the apartment, can simply refuse his application. Moreover, the law establishes that he has every right to do so. To do this, you just need to submit an application to a notary, who will put his stamp and signature on it. The spouse is not obliged to tell the donor about his reluctance to donate the apartment, although it is better to do so in order to avoid unnecessary problems.

True, in the Russian registry there may be problems with re-registration of ownership. The judge does not always make a decision in favor of the former owner of the apartment, but in order for the application to be granted, only compelling and reasoned reasons are required.

It is very important that all issues related to donating an apartment are resolved before the transaction, only then is a peaceful continuation of family life possible.

Thus, it becomes clear that consent to the transfer of an apartment as a gift is an integral part of the transaction. And the methods by which the agreement was reached determines the purity of the transaction and future relationships in the family. Therefore, if the other half does not agree to give an apartment as a gift, it is better to think: is it worth doing this and risking your family in order to give a gift to someone.

The following documents must be submitted for the donation agreement:

• gift agreement in triplicate;
• technical and cadastral passport;
• extract of ownership from the real estate register;
• certificate of family composition;
• copies of identification documents, usually a passport of a citizen of the Russian Federation;
• consent to transfer the apartment as a gift, provided in writing and certified by a notary;
• a receipt indicating payment of the state duty.

It is worth understanding that in each specific situation the list of documents can be changed or supplemented.

In some cases, consent to donate an apartment must be obtained after the divorce. This usually happens when the division of property has not been documented for three years.

Therefore, if you do not provide permission certified by a notary of the former spouse, he may at any time demand that his share be returned to him. In such situations, the court stands on the side that was violated in its rights. Although everything depends on the specific situation, and judicial practice shows that quite often the judge takes the side of the recipient, but only if he did not know about the existing disputes about real estate.

How to register a deed of gift for real estate in the name of a spouse: step-by-step instructions

Before drawing up an agreement, you need to agree on the transaction with the donee spouse, then draw up a deed of gift and, if necessary, have it certified by a notary. If real estate is donated, the re-registration of the right is registered in Rosreestr.

Note! You need to decide in advance who will bear the costs of the DD certificate. This is true when spouses have separate budgets. Usually the donor pays for everything, but other terms can be negotiated

Step 1: approval of the deal

During the approval process, you need to find out what will be donated, in what share (size), and whether notarization is required. Also at this stage, expenses are distributed as agreed.

Step 2: drawing up a gift agreement

You can draw up a DD yourself, contact a lawyer or a notary. Lawyer services will cost approximately 2,000-3,000 rubles, notaries charge more - from 5,000 rubles.

Sample contract

It is important to reflect the following points in the deed of gift:

• Full name, registration addresses, passport details of the parties;
• the property regime in force in the family: general or contractual;
• the size of the part alienated in favor of the donee under the DD;
• address, location of the apartment, area, floor, year of completion of the house, technical data;
• details of the certificate of ownership;
• when alienating a car - make, model, color, license plate number, VIN, STS and PTS details;
• date of entry into force of the transaction – from the moment of signing or in the future.

Note! The contract for the promise of a gift in the future must contain a specific date from which the donee will be able to use the gift.

Sample gift agreement between spouses: alt: Gift agreement between spouses

Documentation

The list of documents depends on the item of donation transferred under the DD.

You will definitely need:

• passports;
• marriage contract (if any);
• agreement on the allocation of shares.

Additionally, depending on the availability:

Step 3: Notarization

If the transaction requires certification by a notary, you need to come with a ready-made package of documents and sign everything in his presence. You can order the registration of a deed of gift at a notary office, but the service is paid separately from the tariff and state duty. The amount of the fee depends on the prices established by the regional notary chamber.

Step 4: visit Rosreestr

You only need to go to Rosreestr to register the right to the donee when transferring real estate as a gift. Instead of Rosreestr, you can submit everything through the MFC, having previously made an appointment. Both must be present.

Documentation

When visiting Rosreestr or the MFC, you need to take with you the same written information as for drawing up the DD. The deed of gift for registration is provided to an employee of the institution and is returned after the procedure to the donee with the appropriate note.

State duty

Re-registration of rights to real estate in Rosreestr costs 2,000 rubles.

Step 5: obtaining a new extract from the Unified State Register of Real Estate

After 10 working days, the recipient must come to the MFC or Rosreestr for a new extract, where he will be indicated as the new owner.