From the moment you donate your apartments, you will cease to be the owner of these apartments and lose any legal right to them, including the right to live in them without the consent of their owners, i.e.
Questions to the notary and the notary's answers - Golyachenko Maria Vasilievna
If you have issued and registered at the Bureau of Technical Inventory (hereinafter referred to as the BTI), then you need to order for each apartment an extract from the register of ownership of non-movable property and take a certificate from the Housing Operations Office (hereinafter referred to as the Housing Office) a certificate of registered in these apartments or that that no one is registered in them. And contact a notary at the location of the apartments or at the place of your registration for the execution of donation agreements.Lawyer's page
This norm is specified in paragraph 3 of Article 549 of the Civil Code of the Republic of Belarus. 1.Based on the essence of your question, to certify the donation agreement for an apartment, you can apply either to a notary (it can be either a public notary or a private one), or to the organization for state registration of real estate, rights to it and transactions with it (BTI). From a legal point of view, it makes no difference.
Donation for an apartment, house and other property
A donation agreement (gift for an apartment, house) is drawn up at a notary. this is regulated by the Civil Code of Ukraine (part 2 of article 719).A donation agreement (gift for an apartment, house) in Ukraine is drawn up at the location of the real estate, which is donated or at the place of registration of one of the subjects of the transaction.
The procedure for the preparation and execution of a donation agreement (gift for an apartment, house) in Ukraine The procedure for registration of a gift can be conditionally divided into four stages: Preparatory work by a notary: checking documents certifying the parties to the transaction, checking documents confirming ownership of an apartment or house, sending requests to the BTI ( if necessary); Checking real estate for being banned or under arrest, preparation of a donation agreement (deed of gift); Directly concluding a donation agreement (deed of gift); Information about the new owner of real estate is entered into the state register.
Registration of the transfer of ownership to the acquirer is made out after the registration of the donation agreement by the same notary.
Required documents for registration of a donation In order to issue a donation for an apartment, house (donation agreement) in Ukraine, the following documents are required: The donor must have documents that confirm ownership of the property that is donated (certificate of ownership, purchase agreement -sales, barter, donation, lifelong maintenance, documents confirming the inheritance, court decision, etc.); Documents confirming the market value of the property; Certificate of registered (registered) persons in the apartment (house); If the apartment (house) that is donated was purchased in marriage, then in order to donate the apartment it is necessary to issue a notarial statement of consent of the second of the spouses; In the case of donating an apartment to a child under the age of 18, as well as in cases where the place of residence of children or incapacitated (partially capable) persons is registered in the alienated dwelling, then you will additionally need permission to conduct such a transaction from the guardianship and guardianship authority. Other questions that may arise when making a donation What is the difference between the conclusion of a sale and purchase transaction and a donation?
There are several significant differences between these transactions: If real estate was donated to one of the spouses in marriage, then the second spouse cannot claim it; The limitation period is different.
What is the best way to re-register part of the house for a daughter?
Moscow (UFRS).To do this, a completed donation and all the necessary documents are submitted to the UFRS. The ownership of residential property passes to the donee from the moment of state registration of the gift.
Registration of a deed of gift for an apartment or house is carried out by the Federal Registration Service (Rosregistratsiya).
To issue a deed of gift for an apartment or other real estate, the Donor must provide the following documents: 1.
But from what you said, I conclude that you have no grounds for invalidating the transaction. The fact that you changed your mind or changed some circumstances are not arguments for the court.
Most often, the decision to give, bequeath or execute a sales contract is made depending on the subsequent costs. What is the best way to transfer property to relatives?
What do we choose from?
Let's make a reservation right away. A sale and purchase agreement is rarely used between close relatives. The contract of sale does not have any advantages for spouses, parents, children (including adopted children), grandfathers, grandchildren and other relatives. Except for the deadlines for registration: a buyer under a sale and purchase agreement can become a full-fledged owner of a home just a month after submitting documents for state registration. For those who have entered into a civil marriage, donation is also not suitable - it is better to correctly draw up a purchase and sale agreement. For the rest, buying and selling is not the best option for close relatives. The apartment purchased under the contract of sale will be the joint property of the spouses, and in the event of a divorce, your half can claim an equal share of the “gift”. When concluding a sale and purchase transaction between close relatives, it is impossible to make a property tax deduction. Unlike a will or a donation owner who owns real estate for less than three years will be obliged to pay income tax for an individual if the value of the object is more than a million rubles. If the real payment, that is, the transfer of money, does not occur under the contract of sale, then the transaction is considered null and void (sham). Actually, that is why it does not apply to close relatives.
The most frequently used instruments in the relationship of close relatives regarding the transfer of real estate are the deed of gift and will. In both of these cases, there is no fact of transfer of funds, and therefore, this is not a sale and purchase. But which is better, a donation or a will?
According to Elena Vasilevskaya, manager of the Petrograd branch of Adveks. Real estate ", people often confuse donation with a will, not understanding the essence of these transactions:" In either case, the owner transfers his real estate to another person free of charge. The difference between these two procedures is the moment of transfer of ownership of the property ”. According to the will, immovable property passes into the possession of the heir only after the death of the owner. In the case of a donation agreement - immediately after registration with Rosreestr. In addition, the will must be certified by a notary, while when drawing up a dedication, this is not necessary. The rest of the choice, to give or bequeath, depends on family circumstances, on the relationship between relatives.
Why is a gift better?
According to Leonid Sandalov, deputy director of the Bekar Academy of Sciences, the donation scheme is most often used between close relatives, since, according to the law, they may not pay tax. If the donation agreement is drawn up between “unrelated souls”, then it will be necessary to pay tax on the income of an individual from the book value of the apartment. “The second option, when it is quite profitable to use this type of contract, is to buy a room or a share in an apartment,” the expert believes.
In general, a donation agreement has a number of undeniable advantages even over a will.
The advantages of donation, first of all, include the level of taxation and the cost of registration, which is lower in comparison with the inheritance procedure. In the case of close relatives, the law does not provide for personal income tax and the tax on property transferred as a gift has been canceled. You only need to enter the state duty for the state registration of the right to real estate and for the registration of the donation agreement. Distant relatives and persons not in family ties pay personal income tax - 13% of the income received.
“In theory, the price of a gift is set by the donor, who can indicate any amount, for example, one ruble. However, this will give rise to disputes on the part of the tax authorities, so the majority prefers to avoid such actions, ”notes Vladimir Sparak, Deputy Director General of the AN“ ARIN ”.
Lawyers point out that a donation agreement is the least contested document. Cancellation of donation to close relatives is extremely rare. Among other things, a donation agreement requires a minimum number of documents (even an extract from a personal account and a deed of transfer are not required). The transaction can be made in simple writing. In this case, the gifted person can immediately move into the apartment or sell it - there is no need to wait six months, as in the case of registration of an inheritance or death of the owner with a will. This is very good for the person to whom the “gift” is intended, but for the donor himself - not always.
After the signing of the donation contract, the object will belong exclusively to the person who received the donation. The rule of common property of spouses does not apply to it, respectively, only you personally can manage the donated real estate, and not your beloved half. It is very important that the right of pre-emptive acquisition does not apply to donation. For example, the owner of a share in an apartment, if he wants to donate this share, is not obliged to offer the pre-emptive right to purchase to other co-owners of this housing.
However, even in the case of the conclusion of a donation agreement, a number of problems may arise.
When a gift is not a joy
First of all, donating real estate in accordance with Article 575 of the Civil Code is simply prohibited on behalf of minors and incapacitated citizens. Such gifts to civil servants are also not welcome if such an expensive offering is related to their official position and the performance of their duties. It will not be possible to donate an apartment to employees of educational and medical institutions or social security institutions on behalf of people who are there for treatment, education or maintenance. A donation agreement between commercial organizations will be recognized as illegal.
Every homeowner who wants to donate it to anyone else must understand that after signing the appropriate agreement, the gifted person becomes the full owner of the donated real estate and can evict the donor at any time. “People often go to court with a request to invalidate the donation agreement. For example, they wanted to inherit the apartment, but, not understanding all the intricacies, signed a donation agreement instead of a will, thereby depriving themselves of property. In such cases, it is very difficult, almost impossible to prove that a person was mistaken, - notes Elena Vasilevskaya. “But it’s easier to revoke the will by visiting a notary and rewriting the document or drawing up a new one in favor of another person.”
In theory, the donation contract can also be questioned. It is possible that the judge will take into account the loss of health and the change in the donor's standard of living for the worse as a result of the donation of property. Or, during the trial, illegal actions of the donee in relation to the donor will be proven. Sometimes, the donee's actions in relation to the donated property, leading to its damage or loss, can be taken as an evidence base for the cancellation of a gift.
In practice, the most popular case when the court in fact can side with those who advocate the abolition of donation is Article 177 of the Civil Code of the Russian Federation (invalidity of a transaction made by a citizen who is not able to understand the meaning of his actions or to direct them). Usually in this situation the direct heirs - children of a very elderly or already deceased donor - act as applicants. If there was no donation agreement, the inheritance among children would be divided in equal proportions. However, the donation contract was concluded with only one of the children. In this case, deprived children refer to the incapacitated state of the donor. As evidence, they use the conclusion of a psychiatric forensic examination, medical documentation, testimony of witnesses in the case, photographs and videos, documents of the social service, etc. And yet, most experts are sure: it is extremely difficult to challenge a donation agreement that is correctly drawn up and signed by both parties.
Anna Gorbenko, consultant to the Real Estate Commission of the Society of Consumers of St. Petersburg and the Leningrad Region, considers an agreement between relatives to be among the most popular options for re-registering property through donation, for example, when a grandmother gives an apartment to her grandson. “However, sometimes these agreements are used to cover up a purchase and sale transaction: so that it is not required to observe the right of first purchase or to avoid paying income tax on the sale (if the owner has owned the apartment for less than three years),” the expert notes. In general, a donation agreement is the optimal form of transferring real estate between close relatives. It is quite difficult to challenge him, although it all depends on the situation. And it doesn't hurt to get a good lawyer's advice.
Text: Dmitry Naumkin Photo: Alexey Alexandronok
The article explains how to re-register an apartment with a relative without taxes and how to carry out the transaction correctly.
At first, it may seem that handing over an apartment on a deed of gift is the most appropriate option. But not everything is so simple. You may also have to pay tax with the deed. Only close relatives are exempt from obligations. The rest of the citizens will have to share their money with the state.
Therefore, in 2020, the solution to the issue depends on the costs associated with the transaction.
What to choose from
A sale and purchase agreement is not the best option. The only advantage of such a transaction is the speed of processing.
Important! It will not be possible to issue a tax deduction when documents are drawn up between close relatives. Therefore, it makes sense to pay attention to other methods.
If the apartment has been owned for less than three years, then you will also have to pay tax. A purchase and sale agreement is most often just a way of transferring property. In reality, relatives do not pay each other anything, so there is a basis for declaring the contract null and void. And such consequences are undesirable for both sides.
There are two more alternative options for transferring housing to a relative: donation and will.
When a will is made, expenses increase. You will have to contact a notary. You can arrange the donation yourself. Only if a share of real estate is donated, notarization is a prerequisite.
There is an opportunity to avoid unnecessary expenses: to donate housing to a close relative.
Compared to inheritance, donation is cheaper. After all, you can save on notary services. Compared to a sales and purchase agreement, the deed also wins. Personal income tax will not have to be paid.
The only expense to be made to the recipient of the gift is to pay the ownership registration fee. The amount of the payment is 2,000 rubles.
Giving is a completely gratuitous transaction. Even if you set a ridiculous price, the tax authorities will be able to find fault. Therefore, it is necessary to draw up an agreement in strict accordance with the Civil Code of the Russian Federation.
A testament can be changed by the testator, but a donation is an irrevocable transaction. Even if the donor wants to return the gift, then nothing can be done.
It will be difficult to challenge the deed of gift to other claimants for the property. If the donor was in his right mind when signing the contract, then the chances of challenging are reduced to zero. In addition, the recipient of the gift does not have to waste time waiting. You can immediately move into the donated room or apartment.
Required documents
To officially rewrite housing to a son or another relative, you will need to collect documents:
- passports of citizens participating in the transaction;
- technical documentation for the living space;
- an extract from the house book;
- documents confirming the rights to property.
If housing is donated to minors, parental or guardian consent will be required.
When you have to pay tax
Only close relatives are exempt from tax obligations. These include parents and children, as well as spouses, brothers and sisters. Moreover, sisters and brothers are recognized as close relatives when they have not only two common parents, but also one father or mother.
The rules about who pays tax and who does not have been established by clause 18.1 of Art. 217 of the Tax Code.
If you donate housing to people who are not close to you, you will have to pay 13%.
Potential risks
There is a risk that other applicants will be able to challenge the deed of gift. This scenario is possible if the plaintiff proves that the transaction was made with the aim of depriving the obligatory heirs of their share.
The will can also be challenged. The reason for the dispute will be a violation of the procedure for drawing up or drawing up a document under pressure from other persons.
How to re-register an apartment for a son without tax
To transfer housing to your son without tax, you need to follow the instructions:
- Draw up a deed of gift. The following information must be specified in the contract:
- date and place of compilation;
- Full names of both parties;
- object of donation (exact area of the apartment and address);
- title deed.
- In conclusion, both parties put their signatures. No compensation can be mentioned in the agreement.
- You can draw up the document yourself when you don't want to overpay for notary services. If a share in real estate is donated, then a notarization will be required. Its cost depends on the degree of relationship between the parties. Close relatives pay 0.1% of the contract amount, for the rest the tariff is 1% of the housing price. When the cost of housing is over 1,000,000 rubles, the rate will be 0.75%.
- Pay the fee to register ownership.
- Collect the necessary documents:
- participants' passports;
- spouse's approval of the deal;
- apartment certificates;
- receipt of payment of the duty;
- notarized power of attorney, if the documentation is submitted by a representative.
- Contact the specialists of Rosreestr or the specialized center of public services "My Documents" (formerly - MFC) for registration of ownership.
- Get an extract from the USRN, confirming the ownership.
For registration, the deed is drawn up in triplicate. One of the documents is transferred to Rosreestr.
Until the age of fourteen, the signature for the minor is put by the guardian. After 14 years of age, a son or daughter can independently sign. When minors are involved in a housing deal, approval from care professionals will be required.
Alternative options
There are also alternative options for transferring real estate. Rent can be arranged, provided that the elderly person needs care. Indeed, in life it often happens that relatives take care of the grandmother or grandfather, and after receiving the real estate as a gift, they stop doing it. In this case, a lifetime annuity is more appropriate.
If the spouses are divorced, then an agreement on the division of property will do.
How taxation works
Here are some examples:
Example No. 1. Ledentsova I.M. gave her niece an apartment in the Moscow region. The cost of the property is 4,000,000 rubles.
The niece and aunt are native people, but they do not belong to close relatives.
Tax calculation: 4,000,000 * 13% = 520,000 rubles.
Example No. 2. Starovoitova N.A. gave her two daughters an apartment. The cost of the property is 3,200,000 rubles. Daughters will not have to pay anything to the state budget. After all, mother and daughter are closely related. Therefore, they are exempt from paying the fee.
Is it possible to avoid paying the fee
There are two ways to do this:
- Make a dedication twice to make a gift through a close relative. For example, an uncle wants to donate a house to his nephew. In order not to pay a fee, you can first donate housing to your brother. The tribe will receive a house on a deed of honor from his father. Then you won't have to pay tax. But the payment of the state fee for the registration of ownership will not be avoided.
- Sign a bogus sales and purchase agreement. You will not have to pay a fee when a citizen has owned housing for more than three years. And under this condition, you can apply for a deduction.
In this case, the costs will be even less than donating. There are no clear instructions on how to avoid paying the fee. Therefore, people use affordable ways to avoid taxes.
Outcome
- Taxation under a gift agreement depends on the closeness of kinship between the parties. Only close people are exempt from paying the fee. The rest will have to pay tax.
- Payment to the budget is made not only when donating real estate, but also vehicles, shares, and other valuables. Therefore, we have to look for options on how to transfer property and not share the income received with the state. Sometimes buying and selling is more profitable than giving.
- There are also alternative options for re-registering an apartment with a relative legally without taxes. The choice depends on the interests of the parties.
Instructions
Contact the Bureau of Technical Inventory (BTI) for obtaining from the technical passport. In the house administration you will receive an extract from the house book, which should indicate the number of residents registered in your apartment.
If minors live in the apartment, you must obtain permission from the district guardianship department.
If you are the sole owner of the home, the consent of other household members is not required. However, keep in mind that an apartment acquired during marriage is considered joint property, regardless of who it is registered in. This means that for the registration of such an apartment, the written consent of the spouse is required.
The donation agreement can be drawn up in simple writing, but many people prefer to do this with the participation of a notary. If you have chosen this option, you should come to the notary office together with your daughter, in whose favor the contract is drawn up. You will need passports of both parties, a document certifying the ownership of the apartment, an extract from the house book, the consent of the donor's spouse, an extract from the technical passport of the apartment. The finished document is signed by both parties and certified by the signature of a notary.
The transaction must now be certified by Companies House. Before visiting there, make sure that you have collected the entire package of necessary documents. The papers are handed over to the employee of the chamber against receipt. After registering the donation agreement, you will receive back the originals of all submitted documents, including the donation agreement, as well as a certificate of state registration of property rights.
Real estate that is related to residential is property of value and significance. True, sometimes a situation may arise in which you will need to transfer all your rights to an apartment, for example, to the same daughter. If a person has made a clear decision to re-register residential property for his daughter, then first you need to understand how the donation contract is drawn up. For registration, you will need a passport of the owner of the apartment and a document on the right of ownership of real estate.
Gift or purchase - the sale of an apartment is formalized in 2 ways. Both methods are not simple in terms of the composition of their design. If the apartment is the property of a person for less than 3 years or the daughter is in an official marriage, then the second way will be the best choice, since the real estate that was acquired in marriage, no matter which of the spouses, is a property of a general nature and will be divided upon dissolution of the marriage.
What is the meaning of the contract under which the donation of real estate takes place? Very importantly, the donation agreement means that the daughter will be considered the sole owner of the real estate. Her other half cannot lay claim to the apartment that was presented to her. And by the way, since the daughter does not consider her to be a distant relative, but a close one, she will be completely and completely exempt from a tax deduction of 13 percent. In this case, the place where she lives does not matter!
A package of documents. Next, you will need to collect a package of documents. A clear list of all the necessary papers that will be needed when concluding a transaction can be found in the state registration chamber. Do not forget that many securities have a certain limitation period. It is worth clarifying which documentation should be presented in the form of originals, and which will be subject to photocopying. Then, with the collected package of documents, you will need to contact the BTI in order to obtain a technical apartment passport. In the department of house management, request an extract from the house book, which specifies the specific number of residents registered in the donated apartment.
Consent and Permission. If a person who leaves his daughter's apartment is the sole owner of residential real estate, then, accordingly, the consent of other relatives will not be necessary. But if children of a minor age live in a donated apartment, then you need to apply for permission from the guardianship department of the district. It is also worth remembering that if the apartment was bought in a marriage union, then it is joint property. Therefore, the consent of the second spouse will be required, and in writing.
Registration. The donation agreement can be drawn up in the usual written form, but it is better to turn to notary services. To obtain a notarized contract, you must contact a notary together with your daughter, since the contract is drawn up in her direction. You will need to take with you 2 passports, a document on the ownership of residential real estate, an extract from the house book, the consent of the second spouse, an extract from the BTI. The drawn up document is subject to certification by the signatures of both parties. Sealed with a certifying signature and seal of an employee of the notary office.
Registration chamber. After completing all the procedures described above, the transaction is certified by the registration chamber. Before making a visit there, it is worth checking the collected documentation. There it will need to be handed over to the employee against receipt. After the contract registration procedure, all original documents will be returned, including the donation contract. The state registration procedure for the ownership of residential real estate will be carried out here. Subsequently, it will be impossible to reverse the deal. Therefore, before its implementation, it is worth weighing everything reasonably and thinking it over well.
