How to get a gift certificate for an apartment - legal advice

Modern realities tell us that it is becoming increasingly difficult to acquire your own housing. Previously, it was possible to get an apartment from the state or at the place of service, but now - by purchasing, by acquiring a mortgage, by inheritance or gift. Housing prices are rising every day, and mortgage conditions are often enslaving. Unfortunately, this is why the bulk of fraud cases are related to the real estate market. In addition, when sharing the property of deceased relatives (and, even worse - during their lifetime), often even the closest people become enemies.

Sometimes young people are not able to buy an apartment, even on a mortgage. That is why the question of testament or gift from the older generation is so acute. But they are afraid to remain without housing or to be deceived or unnecessary to their loved ones.

In addition, people of age often do not understand the law and do not know what they are entitled to. Therefore, the question often arises of how to issue a gift certificate for an apartment. What documents are needed for this? How much does the registration procedure cost and how much are donors and their relatives protected by law? Where to start a deal and what stages to go?

General principles of giving

Donation - the transfer of property (or part thereof) owned by a person to another person on free terms. That is, in the absence of any requirements. If there are counter obligations (for example, subject to the possibility of living in the transferred apartment), such a transaction will be considered invalid.

The donation procedure, its basic principles and conditions are established in Ch. 32 of the Civil Code of the Russian Federation, as well as in the rules of the law on inheritance.

When drawing up an agreement on gratuitous transfer of property The following required elements must be specified:

• donor data;
• data of the donee;
• an indication of a specific item being given over to another person;
• clear intention to transfer property;
• indication of the gratuitousness of the transaction.

How to get a gift certificate for an apartment

Gratuitous transfer of real estate is carried out according to the general rules of donating property. But there is a small addition: registration of such an agreement includes two procedures.

1. Making a gift.
2. Registration of the contract and other documents confirming the transfer of ownership of another person.

You will have to go through the following steps:

• drawing up a gift;
• obtaining the consent of both parties (including the donee must express it, ready to accept the apartment);
• collection of necessary documents;
• transfer of all securities to the relevant authorities;
• obtaining a certificate of ownership.

Circle of subjects

If you have a question about how to issue a gift certificate for an apartment, you should outline the circle of people who have the right to participate in this procedure.

The legislation of the Russian Federation provides a list of people who do not have the right to transfer housing to another person free of charge:

• minors (up to 14 years old);
• representatives of minors (if the property belongs to children);
• legally incompetent citizens;
• legal representatives of the legally incompetent (if the property belongs to the latter).

In addition, there is a limited circle of persons who may be recipients of housing. The following citizens are not entitled to accept immovable property:

• civil servants;
• educational workers;
• employees of medical institutions;
• social workers.

All these persons do not have the right to accept property as gifts from their subordinates, clients, and also their relatives, but only from their relatives, friends or relatives who are not related to work.

Where to go?

Where is the gift certificate issued for the apartment? Who should I contact to compile this document?

The drawing up of a gift contract can be done in several ways:

• independently, having studied the necessary legislation and using the sample;
• with the help of a lawyer;
• in a notary's office.

Most often, this document is executed by a notary public. A deed of gift for an apartment, in principle, is a simple contract, and you can draw it up yourself. But the notary will do it quickly and take into account all your wishes, in addition, he will explain all the pitfalls that you may simply not know about.

It is not necessary to certify a document with a notary. But many still use this service, because at any time, in each city, if necessary, they have the opportunity to get a copy of the contract.

But in any case, the signed document must be registered with the special service of the Federal Registration Service.

Making a gift certificate for an apartment. Documents you need

First of all, it is necessary to conclude the donation contract itself, with the help of a lawyer or in a notary's office. When applying to state registration authorities, the document must be signed by both parties to the transaction. In addition, it is necessary to provide 3 copies: one for each participant and one for Rosreestr. A deed of gift is the deed of gift for the apartment.

What documents will be required yet?

• confirming the ownership of the apartment to the owner-donor;
• BTI certificate with an inventory assessment of housing;
• cadastral passport of the premises;
• a certificate from the passport office about all residents / registered in the apartment;
• statements of the donor and recipient of the property;
• receipt of payment of state duty;
• passports of the donor and recipient (or the birth certificate of a minor).

If the transaction is made by a proxy, a document confirming the authority of the latter is required.

If the person presented is legally incompetent or underage, the consent of the legal representative.

If the apartment belongs to several persons - a written permission of all owners, notarized.

After all the procedures, the donee will be given a certificate of ownership of the apartment.

Registration cost

Naturally, before registration, you need to think about how much the gift certificate for the apartment costs. How much will it cost to prepare and register such a document?

When you draw up the contract yourself, you do not have to pay for the services of a lawyer or notary. It is only necessary to pay the state fee for state registration. Currently, the fee for processing such a transaction in the registration chamber is 1000 rubles. If you decide to use the services of a lawyer, you will additionally have to pay the price of a law agency or a private specialist. The cost may be different. Typically, the preparation of such an agreement is estimated from 1000 to 3000 rubles. The cost of a donation to an apartment at registration with a notary is on average 1,500-2,000 rubles.

Taxes

Please note that when you receive any property in our country, you must pay taxes to the budget. In the case of an apartment, the donee receives economic benefits in kind, in the form of property. That is why he is required to pay income tax.

What is the difference between other types of transactions (for example, sale) gift certificate for an apartment? The tax is not paid in only one case. Namely: if the donor and the recipient are close relatives. According to the Family Code of the Russian Federation, this category includes:

• parents;
• Grandmothers and grandfathers;
• children (family and adoptive);
• brothers and sisters (from one or one parents).

If the parties are distant relatives or are not bound by blood ties at all, the tax amount will be 13% of inventory value of the apartment. The price of housing is determined based on the amount specified in the contract. It corresponds to market value and is confirmed by the BTI certificate. The appraisal of the apartment is carried out by BTI at your request before the transaction.

If the donee does not need housing in kind, after receiving a document of ownership, you can sell it or dispose of it in another way at any time. But it should be noted that the sale of a donated apartment also causes an obligation to pay monetary fees to the state. Only housing that has been owned by the owner for three or more years is not taxable. Therefore, having received an apartment under a gift agreement, it is better to wait a while. It doesn’t matter which way she went to you: without taxes (from a close relative) or already with their payment.

Giving to relatives

Under the law, relatives can be considered close and distant. The term “close” was described in the chapter “Taxes”. Distant relatives are all the others, connected by both blood and documentary ties.

The procedure for issuing gifts to close relatives is the same as for strangers. But with such an action, government bodies always treat the parties more loyally and do not ask unnecessary questions. In addition, the gift of an apartment to a son, daughter, parents, grandparents, brothers and sisters is not taxed.

Distant relatives, as well as absolutely strangers, are required to pay a fee in favor of the state when receiving free housing. Its size is 13% of the inventory cost of the premises.

It should be remembered that a donation to an apartment to a minor who is not a close relative is also taxed. But children have no sources of their income. Therefore, consent to such a transaction is given legal representatives of the child, since they will have to pay tax.

Giving to minors

It would seem that a gift is a gratuitous transaction that does not require any money or other participation from the recipient of the property. But not always free is a boon. For example, not everyone can afford to pay utility bills. Not always the premises are suitable for housing and often require huge financial investments.

In addition, if the parties are not close relatives, the recipient of the apartment will have to pay considerable taxes to the state, and not everyone has such an opportunity. That is why a deed of gift for an apartment for a child must also be signed by someone on the part of the minor, the person who has such a right. These may be legal representatives, father, mother, guardians or trustees.

An interesting situation arises when official representatives of a minor give him their housing. For example, a daughter’s gift for an apartment is signed on the one hand by the girl’s mom and dad, and on the other hand by them. And although they act on behalf of the child and in his favor, the contract looks very strange for an unaware person - as if a person makes a gift to himself.

Donation of a share (part) of housing

If the premises are owned common property before two or more citizens, before issuing a gift certificate for a part of the apartment, it is necessary to allocate their shares. They are determined in parts (for example, 1/2 or 1/3), since it is impossible to divide such a room in kind.

According to the law, a record of the right of each owner in a single apartment is registered with one number, in addition, the cadastral number is awarded as a whole. Therefore, the division into shares is a prerequisite for the commission of this type of transaction.

There are two options for applying for a share of housing:

• other owners of the apartment;
• to other persons.

If documents are drawn up for one of the existing owners, the consent of others is not required.

If the donation for a share in the apartment is drawn up for another person who does not have a part of the housing, the notarized consent of other owners is necessary. If one or more owners are minors, the permission of their guardians or legal representatives will be required.

The timing

The signing of the contract and its registration are possible only with the personal presence of the donor (his representative). If it turns out that at the time of the transaction the owner of the apartment is dead (recognized dead), the transaction is not carried out.

Thus, the owner only in life can issue a gift certificate for an apartment. Documents, including the contract signed by a notary public, will not be valid unless there is a fact of registration of the transaction in Rosreestr.

After delivery of all papers, a notice of receipt is issued to both parties. The registration service is provided within 20 calendar days from the date of receipt of all documents. Notification of the resolution of the issue on your application comes in the form of SMS to your phone number (if you indicated it when submitting papers) or by mail. You can get a certificate of ownership of the apartment at any time, the dates in this case are not set.

Disputes

In what cases can you challenge a gift for an apartment?

The owner himself, who transferred the apartment free of charge to another person, can exercise his right and file a lawsuit to cancel the transaction in the following cases:

• if his health has deteriorated or his standard of living has changed significantly (when this happened as a result of a transaction);
• if the actions of the donee aimed at concluding a transaction were criminal in nature;
• if the actions of the recipient in relation to the acquired property damage the property and can lead to damage, loss or complete loss of housing.

If the donor has died, the heirs of the deceased may challenge the gift in the following situations:

• if the actions of the recipient of the property when signing the contract were criminal in nature;
• if at the time of the transaction, the donor or donee was in the circle of persons who were not entitled to carry out such actions (see paragraph "Circle of subjects").

Also, the right to challenge have some state and municipal bodies (for example, the prosecutor, social protection), legal representatives of minors, incompetent and partially incompetent.

In addition, the donee himself can refuse the property received by registering the refusal with the relevant authorities.

What is the difference between a donation and a will?

Often we hear the expression "testament on an apartment." What it is? In fact, this is a simple everyday expression and it does not have practical meaning. A deed of will and a will are completely different documents that have different legal consequences. What are the similarities and differences between these deals?

General rules:

• both documents are signed by the owner of the apartment during his lifetime;
• when transactions are made, property is transferred from one side to another free of charge;
• when calculating the tax, one rule is used: close relatives are exempted from it, while distant and unauthorized persons pay.

The main differences in the disposal of property obtained in different ways:

Conclusion

So, if you have a question about how to get a gift certificate for an apartment, contact a lawyer, a notary public or study the legislation on this issue yourself. Gather the necessary documents, get the consent of the other party (or its representative). Make a deed of gift in triplicate. Sign it and your recipient. With all necessary contact Rosreestr. Warn the donee (if he is not your close relative) of his obligation to pay tax and obtain a certificate of ownership.