Is it possible to sell a room through donation?
A sale is a transaction under which the seller transfers property to the buyer for money. The specifics of the transaction are regulated by Ch. 30 Civil Code of the Russian Federation. Donation involves the gratuitous transfer of property, where the donor is involved instead of the seller, and the donee is involved instead of the buyer.
By nature and characteristics, these are completely different transactions, and real estate cannot be sold through a gift. Some prefer to draw up a gift agreement (hereinafter referred to as DD) instead of a purchase and sale agreement in order to avoid paying tax (sellers pay 13% personal income tax) but actually receive money. Such transactions are considered feigned, and the consequences of invalidity are applied to them (Article 170 of the Civil Code of the Russian Federation).
Legal advice: it is better to immediately draw up a real contract when selling, otherwise there is a risk of running into an unscrupulous buyer. Having drawn up a deed of gift, you may not receive money for the property in return, because such an agreement implies gratuitousness. You will have to defend your interests in court.
Elena Plokhuta
Lawyer, website author (Civil law, 7 years of experience)
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Room donation agreement form
A room in a dormitory, communal or ordinary apartment is considered real estate, and a written form for a deed of gift is required (Article 574 of the Civil Code of the Russian Federation).
The owner has the right to conclude any type of agreement:
- Real, according to which the donee will be able to re-register ownership immediately after signing;
- Consensual, containing a promise of gift in the future. The donee receives rights to real estate from a certain date or event: wedding, receiving a diploma from a university, etc.
If desired, the donor and the donee can agree on the transfer of real estate as a gift while preserving the former’s right of residence. This condition must be indicated in the deed of gift: after registering the new owner with Rosreestr, the old one will not be able to use the property.
Other Features
The donation of real estate has several features that are important to consider when finalizing the transaction:
- If the room was purchased by the donor during marriage using money shared with the spouse, the latter’s notarial consent will be required;
- To donate property to a child from 14 to 18 years old, permission from the guardianship authorities is required, which with a high degree of probability will not be issued, because when donating, we are talking about the gratuitous seizure of property;
- It is prohibited to give valuables to children under 14 years of age;
- Legal entities have the right to donate rooms to their employees and other individuals. If this is provided for in the company's charter, the consent of the remaining owners will be required;
- The room is donated after allocating a share of ownership in kind. If it is in common ownership without defining a specific territory belonging to the donor, the transaction is impossible;
- If the room is privatized, the transaction will require the consent of the remaining owners. Citizens who voluntarily refused privatization do not express their consent.
Important! A share in kind is allocated provided that it is technically possible to provide a citizen with access to the remaining premises, as well as to equip a separate entrance.
Is it possible to donate a share of a room and how to draw up an agreement?
How to correctly draw up a deed of donation of non-residential premises?
Consent of the spouse to such actions
As in other cases of donation, married citizens are forced to attach to the list of documents for registration of the deed of gift the spouse’s consent to donate a share in the apartment, that is, to alienate joint property. It is drawn up in writing and certified by a notary. You can see a sample below or download it.
Sample consent of a spouse to donate a share in an apartment
YOU may also be interested in the issue of donating a privatized apartment, a share in it or a house. Here you will find answers to all these questions.
This is important to know: Statement of claim for recalculation of utility bills: sample
Features of donating a room
You can donate a room if it is the donor’s private property, and other persons do not have the right to claim it. Before registering a deed of gift, you need to allocate a share in kind by concluding an agreement with other owners or achieving a resolution of the issue through the court.
The specifics of the deal depend on the type of building in which the room is located. Let's look at the subtleties in detail.
In an ordinary apartment
In a regular apartment, you cannot donate just a room, because... You will first have to allocate a share in kind in compliance with technical standards. With a high degree of probability, the deal will not take place: the premises will have to be equipped with a separate entrance, which is very difficult.
An alternative option is to allocate a share in the room in kind if the owners of adjacent apartments want to conclude such a deal. But from a legal and technical point of view this is problematic and unlikely. Instead, it is worth registering a deed of gift, transferring a share in the ownership without actual allocation.
In a communal apartment
A room in a communal apartment is the private property of the citizen, and the remaining premises are in common shared ownership. Such real estate is donated: along with it, the recipient will receive a share in the right of common ownership of the apartment - it is proportional to the size of the room.
Note! There is no need to obtain the consent of the other owners of rooms in the communal apartment. They are given a pre-emptive right only in the event of a sale by one of the owners. Donation is carried out free of charge, and the donor himself chooses who to give the property to.
In dorm
If the donor received ownership of a dorm room through privatization, he can give it to another person. To do this, it is enough that the building is on the balance sheet of municipal authorities and is used for the residence of citizens.
If a dorm room is owned by a municipality or an enterprise (not privatized), it cannot be donated.
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State registration of donation of a room
State registration of real estate donation agreement was canceled by Art. 2 Federal Law No. 302 dated December 30, 2012 However, this norm did not cancel the requirement for state registration of the real estate itself , established by Art. 131 Civil Code. Thus, this procedure is carried out in the manner established by Federal Law No. 122 of July 21, 1997, taking into account special Methodological recommendations.
For your information
The state registration of rights to real estate is carried out by the Federal Service for State Registration of Cadastre and Cartography (Rosreestr), its local branches and Multifunctional Centers (MFC).
State registration of real estate is carried out in the manner prescribed by Art. 13 Federal Law No. 122. According to it, registration of rights begins from the moment the applicants (donation parties) submit a number of documents , a detailed list of which is advisable to find out in the Rosreestr branch. Before submitting documents, applicants must pay a state fee, which, according to Art. 333.33 of the Tax Code, amounts to 2 thousand rubles for citizens and 22 thousand rubles for organizations.
After submitting the application and documents, the applicant receives a receipt, which will indicate a specific date when he will be able to receive the expected state registration certificate. After receiving the documents, the state registrar carries out a legal examination of them for legality, after which he enters information into the register of rights (USRE) and applies certification inscriptions to the title documents .
According to paragraph 3 of Art. 13 Federal Law No. 122, registration is carried out within 10 working days . After this period, if all the information submitted complied with the requirements of the law, the applicant receives title documents and a certificate of state registration . From the moment of receipt of these documents, ownership of the room passes to the donee (clause 2 of Article 223 of the Civil Code).
Who can I give a room to?
You can give a room to any person: a close relative, spouse, friend, acquaintance, even a stranger. The law does not limit the circle of donees.
The exception is situations where donation is prohibited by Art. 575 Civil Code of the Russian Federation:
- In favor of an employee of an educational, medical or social institution, if the donor is a patient or client;
- An employee of a state or municipal body, a bank employee, if the donation is related to his official duties;
- From one commercial organization to another.
The ban does not apply to gifts worth up to 3,000 rubles. Any room is more expensive, so donating it in the above cases will not work.
Do I need to have a deed of gift for a room certified by a notary?
Notarization of the deed of gift confirms that the parties acted voluntarily and had legal capacity when signing.
A notary's signature is only required in a few situations:
- The donor is a minor;
- A representative acts under a power of attorney on behalf of the donor or recipient;
- A share in the property right is given.
The allocation of a share in kind does not cancel the location of the premises in shared ownership, and the DD will have to be certified by a notary.
Cost of notary services
A state fee is paid in favor of the notary in accordance with Art. 333.24 Tax Code of the Russian Federation. The amount is 0.5% of the contract amount, but not less than 300 and not more than 20,000 rubles.
Example:
The cadastral value of the room is 1 million rubles. The notary is paid:
1,000,000 x 0.5% = 5,000 rubles.
How to give a room to a close relative or stranger: step-by-step instructions
To donate a room in a communal apartment or dormitory in favor of a relative or other person you will need:
- Coordination of the transaction. It is recommended to agree in advance with the donee when and in which notary office the DD will be signed.
- Collection of documents for property.
- Drawing up a deed of gift. This can be done independently or with the help of a lawyer.
- Visit to a notary. The parties sign the DD in his presence. Previously, he explains the rights and obligations, responsibilities, and consequences of the transaction.
- Submission of documents to Rosreestr or MFC. Registration of DD was canceled several years ago, but the transfer of ownership will have to be registered. Documents are submitted by both parties - the donee and the donor. If citizens are unable to attend, attorneys submit notarized powers of attorney on their behalf.
- Obtaining an extract from the Unified State Register of Real Estate. After completing the registration actions, the donee is issued a new extract, where he is indicated as the new owner.
After receiving the documents, an employee of the MFC or Rosreestr will issue a paper receipt, which will indicate the date of receipt of new documents for the room. It takes no more than 10 calendar days to re-register ownership.
Contents of the gift agreement
There are no special requirements for the content of the DD, but it must contain complete information about the transaction, otherwise the registrar will refuse to accept the documents.
What information will you need:
- Full name, passport details of the parties;
- Address of the room, area that is alienated along with the room, inventory assessment;
- Rights and obligations of the parties;
- Methods for changing or terminating a DD;
- State registration procedure;
- The donor’s intention to donate the room to the donee free of charge;
- Other conditions;
- Signatures of the parties.
Sample contract for donating a room in a communal apartment:
Consultation on document preparation
Documentation
When visiting Rosreestr or the MFC, you will need the passports of the parties, the agreement itself, as well as other documents:
- Technical passport if the room is privatized;
- Certificate of ownership of the donor, or an extract from the Unified State Register of Real Estate.
Important! Everything is provided in its original form. If necessary, copies will be made of the documents, and the originals will be returned to the owner.
State duty
The fee for registration actions is paid by the donee - 2,000 rubles. For organizations it is higher – 22,000 rubles.
What is the procedure for drawing up a gift deed for a room in a communal apartment?
When agreeing to donate a room in a communal apartment, you need to take into account all possible nuances and be sure to include them in the contract. Regarding the procedure for completing such a transaction, it consists of the following actions:
- First of all, it is worth discussing the issue of donating a room in a communal apartment with the person to whom it will be given. The whole point is that he has the right to refuse such a gift, therefore a unilaterally drawn up agreement will be void.
- Then you will need to decide what type of contract will be concluded. Since such a document can be drawn up independently, you can also use the services of a notary, or you can contact Rosreestr with a request for help in this matter.
- And of course, you will need to collect all the necessary documentation, which is directly related to such an agreement.
Grounds for canceling a room donation agreement
DD of a room in a communal apartment or hostel is canceled on the grounds specified in Art. 578 Civil Code of the Russian Federation:
- The death of the donor through the fault of the donee. The heirs will be able to challenge the DD;
- Causing harm to the life and health of the donor intentionally through the fault of the donee;
- Careless handling of a gift that is of non-property value to the former owner, if there is a risk of irretrievable loss.
Creditors of the donor who was engaged in entrepreneurial activity can cancel the deed of gift if the room was purchased with funds from it, and the agreement was drawn up within six months after the citizen was declared bankrupt.
There are additional grounds: drawing up a DD under the influence of delusion or threats, blackmail, physical or moral violence, in an incapacitated state. Relatives or donors can also demand cancellation if the agreement was drawn up without understanding the specifics of the transaction.
To cancel, you must contact the court at the location of the property.
Is it possible to challenge a donation agreement for a share in a room?
It is difficult to challenge a deed of gift for real estate, but it is possible.
The grounds are presented in Art. 578 Civil Code of the Russian Federation:
- The donee is guilty of the death of the donor (disputed by the heirs);
- The recipient of the gift committed a crime against the health of the former owner or his relatives;
- The donor executed a DD within six months after the decision on his bankruptcy was made, and the share was purchased with funds from business activities.
If the contract provides for cancellation in the event of the death of the donee before the donor, the property returns to the latter.
There are additional grounds specified in Art. 166-179 Civil Code of the Russian Federation. The deed of gift is contested if the donor signed it under the influence of delusion or threats from the donee; if you do not understand the nature and consequences of the transaction; in case of donation on behalf of a minor without the consent of parents or guardianship authorities, alienation of property of children under 14 years of age; drawing up a DD by an incapacitated or partially capable citizen.
Arbitrage practice
Cancellation of a deed of gift is problematic, and courts often refuse to satisfy claims. To achieve recognition of a transaction as invalid, you need to provide maximum evidence and be able to justify every phrase in the statement.
There are also examples of positive decisions when people managed to cancel the DD and regain ownership of real estate:
- Decision No. 2-359/2016 2-359/2016(2-4769/2015;)~M-4669/2015 2-4769/2015 M-4669/2015 dated December 2, 2015 in case No. 2-359/2016 ;
- Decision No. 2-189/2019 2-189/2019~M-159/2019 M-159/2019 dated July 5, 2019 in case No. 2-189/2019;
- Decision No. 2-6167/2016 2-913/2017 2-913/2017(2-6167/2016;)~M-5027/2016 M-5027/2016 dated June 5, 2021 in case No. 2-6167/2016 .
Lawyer's answers to frequently asked questions
I would like to donate a room in a dorm. Do neighbors need consent?
No, consent is not required, because it is an independent property.
Do I need to pay taxes if I received a room as a gift?
Yes, personal income tax of 13% is paid on the cadastral value of housing. But if the donee is a close relative of the donor (brother, sister, parent, spouse), you will not have to pay tax.
Do you need the consent of the guardianship authorities to donate the room in which the children are registered?
No, guardianship permission is not required. It must be obtained only when selling or donating real estate if the owner is a minor.
We accidentally made a mistake in the contract, indicating that 2 rooms were being given instead of three. How to fix?
Create a new deed of gift. If the DD is certified by a notary, make corrections and have it certified by him again.
Is it necessary to draw up an acceptance certificate when donating a dorm room?
Not required, but recommended. The act is attached to the agreement.
Documents required for drawing up a deed of gift
Donating a room in a communal apartment has one of the important conditions. Its essence is that the donation room should have the status of a communal apartment. Otherwise, the agreement will be recorded as a donation of a share in the designated property. But the list of papers also includes:
- The mandatory presence of passports of both parties - the donor and the person for whom it is intended.
- A certificate confirming ownership of the specified room must be required.
- Papers that indicate the grounds for receiving such real estate into ownership (purchase, exchange, inheritance, under a gift agreement, privatization).
- An extract from the house register, which indicates information about all citizens registered in the living space.
- Availability of a notarized permission of the spouses if the room is jointly owned. It is very important that such permission be obtained from both the donor and the recipient.
- In the case where a communal room is donated to a stranger, you will need to provide the certified consent of the property owner.
- You will also need to provide an extract from the Unified State Register, which indicates information about the absence of encumbrances regarding this room.
- A cadastral as well as a technical passport of the living space must be available.
- A certificate indicating the absence of debts for utility services.
It is worth noting that all of the above papers are available to the bona fide owner, but as for extracts from the Unified State Register and proof of the absence of debts, they have statutes of limitations, this must certainly be taken into account when collecting documents.
