Instructions for correctly preparing a deed of gift for an apartment

Pros and cons of a gift agreement

One of the advantages of a deed of gift is that it is unconditional and gratuitous. Unconditional - means that the apartment is transferred to the object of donation without any conditions: maintenance of the donor, lifelong care, etc., if this lifelong maintenance is not indicated in the deed of gift.

Free means that the donee pays only the costs of registration. If, outside the framework of the agreement or in the deed of gift itself, there is any mention of monetary compensation, the transfer of some thing or right, the law does not recognize such an agreement as a deed of gift (this is a sham transaction).

This opportunity (to own, dispose, use) arises for the recipient from the moment of registration of his property rights. After completing the documents, he is the absolute owner of the apartment, having the right to dispose of it as he chooses: sell, rent, or give it to someone else.

The disadvantage of this method of alienation of housing is the fact that the gift agreement is sometimes challenged in court. In such a situation, the new owner must prove his right to this living space. To avoid such an unfortunate misunderstanding, you need to have a clear idea of how to draw up a deed of gift for an apartment correctly.

There are two parties to the deed of gift - one sincerely wants to make such a generous gift, and the other party is ready to accept this gift. If there is no such agreement, the transaction will not take place. At any time before the transfer of the gift, the recipient has the right to refuse the apartment. The refusal must be made in writing. Real estate transactions can sometimes have negative consequences.

What you need to plan in advance

Let's figure out how to rent out an apartment without breaking the law, and which tax payment scheme to choose.

Negotiate with other homeowners

If you are not the sole owner, then simply giving your share for rent will not work - you need to ask permission from other homeowners. If someone refuses to meet you halfway, you cannot rent out the apartment.

If other owners do not mind, you should take their written consent and have it certified by a notary. Only after this can you look for tenants yourself.

Sign an agreement with the tenants

Usually, when renting illegally, no contract is concluded so as not to advertise the income. However, the absence of an agreement does not stop the tax authorities - it is possible to prove the fact of receipt of income and non-payment of taxes in other ways.

The absence of an agreement harms all parties. If the relationship is not formalized, it will be more difficult for the owner to make claims to the tenant and demand compensation in court for damage to the apartment or late payment.

If you have an agreement, it is easier to build relationships with neighbors and the management company - you can openly declare that you are allowing tenants in, and not be afraid of inspections and complaints to the police.

A tenant without a contract will not be able to register in the apartment.

Self-registration

How to draw up a deed of gift for an apartment yourself? Three main stages can be identified.

Draw up a legally correct contract

According to the Civil Code of the Russian Federation, an apartment donation agreement can only be concluded in writing. You can draw it up yourself in any form or use the services of a lawyer. The second option is preferable, since a specialist will help you arrange everything legally, taking into account the wishes of all parties.

When drawing up a contract yourself, you must include the following real information:

Full name of the donor with registration and passport details;
Full name of the recipient with the same data;
description of the subject of the donation, for which the agreement was drawn up in absolute accordance with the documents (“the donor gives, the recipient accepts as a gift an apartment at the address: St. Petersburg, Optikov St., 12, apt. 3.”);
the exact name of the alienated property (for example, a three-room apartment);
detailed description of the subject of donation (a three-room apartment on the 4th floor of a 9-story brick building, with an area of 81 sq. m);
confirming document of ownership (certificate of ownership or inheritance, purchase and sale agreement, rent agreement, investment agreement);
signatures of the donor and recipient.

You can add information about the cost of the apartment, but it is not required. If, nevertheless, the parties decided to indicate by agreement, then the cost should not be inflated. An important point is tax payments. If the question is how to issue a deed of gift for an apartment in the name of a son, daughter (including adopted children) or spouse, then the recipients do not pay tax on such a transaction. For relatives - brothers, sisters and all strangers, the tax is 13% of the cost of the donated apartment. Confirmation of relationship with the tax authorities is carried out by filing a tax return.

Register the agreement with the relevant authorities

In accordance with Art. 574 of the Civil Code of the Russian Federation, the deed of gift must be registered in the registration chamber, in the cadastral chamber, or in a multifunctional center. The registration procedure in different authorities may differ slightly, so this issue must be clarified. Registration at the Companies House follows the following instructions.

The parties to the transaction sign the agreement at the Registration Chamber in the presence of the registrar. In this case, you need to pay the state fee (it is paid by the recipient at the same institution at the cash desk for accepting payments) and provide a package of documents:

original passports of both parties;
donation agreement (number of copies - for each participant plus one more - for the Registration Chamber);
donor's certificate of registration of ownership of the apartment;
extracts from the technical passport (take it to the BTI);
consent of the donor's spouses and relatives, if they are co-owners of the apartment (written or personal presence); in the event of the death of a spouse, a death certificate is provided);
a certificate of registered residents in the apartment (it is not required during registration, but the recipient should be on the safe side and know exactly who is registered in his future apartment);
if the transaction is made by power of attorney (on one or both sides), then all representatives - trustees - must have a notarized power of attorney and a copy of the power of attorney, which indicates the data of the donor and the donee with a description of the subject of the gift;
permission from the guardianship and trusteeship authorities of the children's area of residence (for minor children or incapacitated persons living in the apartment);

When registering a transaction, the Registration Chamber has the right to require other supporting documents. If you apply on your own, it is still worth showing the prepared package of documents to a registration service consultant or an experienced lawyer.

Based on the documents reviewed, the registrar draws up an application, which is signed by the donor and the recipient (after checking all the nuances).

After the application is certified by signatures, the registrar takes all the documents provided (except for the passport) and issues a receipt in return indicating the date of receipt of the documents (with a detailed list) and the date of issue of the certificate of ownership and the gift agreement itself. The certificate is issued only to the recipient, and gift agreements are issued to all participants in the transaction. If the apartment is donated to several applicants, then each of them will receive a certificate of ownership.

The maximum period for registering a gift agreement is set within 7 days, but authorities do not always comply with this condition. Much depends on the number of participants in the transaction, mortgage, encumbrance. The date of issue of documents can be clarified by phone.

At the specified time, the donor and recipient with passports and receipts pick up their documents at the Registration Chamber. From this moment, the recipient becomes the full owner, able to dispose of his property. If the deed of gift states that the donor must check out of the apartment after registration, the new owner has the right to control this process.

What happens if you rent out an apartment illegally?

Perhaps there will be no further problems, if the tenants are adequate, relations with neighbors are normal, and you take the money in cash, then no one may even know about the rent.

If the management company, neighbors or anyone else writes a statement to the tax office or local administration, the tenant may be fined.

The fine for an individual for failure to declare is 5% of the total income, tax concealment is also taken into account, and this is 40% of the total amount. And in addition you will need to cover all debt, usually for the last 3 years. They can also be fined for illegal business activities without a legal entity or individual entrepreneur - this is from 500 to 2,000 rubles.

It is better to rent out an apartment legally.

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.

What to do if the apartment has a mortgage

Make sure that the terms of your mortgage agreement allow you to rent out the apartment. There are banks that indirectly prohibit the use of such housing for rent - for example, they include in the contract a condition that if you start renting out an apartment, you will repay the debt for it ahead of schedule.

There are several options for renting out a mortgaged apartment:

Coordinate plans with the bank through the manager.
Sign an agreement for a period of less than a year. Problems usually begin due to the need to register a long-term agreement, because the apartment is pledged to the bank, and there is a record of this in Rosreestr. You simply will not have such changes registered in the Unified State Register of Real Estate.

How to issue a deed of gift for an apartment for my granddaughter?

Question:

I bought an apartment in the seaside district of St. Petersburg from a developer (under Federal Law 214). I want to issue a deed of gift for my granddaughter. Is the registration procedure somehow different for objects on the secondary real estate market and the primary one?

When donating real estate to minors (if they are under 14 years old), the agreement is signed and registered by legal representatives - parents or guardians. The presence of the recipient is not required. If the object of the donation is already 14 years old, both his legal representatives and himself must sign the documents. By the way, until the child reaches adulthood, his guardians will manage the apartment in the interests of the child. But they will not be able to sell the apartment (just like the granddaughter herself without the consent of the parents or the guardianship council).

The deed of gift does not have to be concluded immediately - it can be promised. According to the Civil Code of the Russian Federation, if the promise is made in the proper form and contains clearly expressed intentions to transfer the apartment to a specific person in the future. Such a promise is also drawn up in writing and registered with the state registration authorities of rights to real estate. If an apartment is promised in the proper form, upon the death of the intended donor, the heirs have no right to this property and are obliged to fulfill the terms of the promise, unless otherwise provided in the document.

Registration of a deed of gift is a relatively simple transaction, but quite responsible. Therefore, it does not hurt to take the help of a practicing specialist.