Preliminary gift agreement: why is it needed, sample 2021

What is a preliminary gift agreement?

A preliminary gift agreement (hereinafter referred to as DD) is a document according to which one party (the donor) undertakes to conclude a main agreement with the second party (the donee).

Unlike a standard deed of gift, a preliminary deed of gift has several features:

In a regular DD, the subject of the transaction is the property being transferred. In the preliminary stage, it is the obligation of the parties to draw up the main agreement.
The preliminary DD is drawn up in the same form as the regular one.
It is mandatory to indicate the period during which the parties must conclude the main DD. If there is no such period in the document, it is considered that the transaction must be concluded within 1 year from the date of registration of the preliminary DD.
The obligations provided for in the preliminary agreement are canceled if the main DD is not concluded within the established time frame.

Briefly: the preliminary gift agreement is drawn up in a similar basic form and contains complete data on the transferred values or real estate. This is a completely free transaction. The presentation by the donor of counterclaims to the donee entails the recognition of the DD as invalid (Article 572 of the Civil Code of the Russian Federation).

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

Preliminary gift agreement for guardianship

When a minor citizen already has his share of living space, the sale or donation of such an object has a number of features. In addition to parents, the rights of minor children are also protected by guardianship and trusteeship authorities. They cannot allow children’s rights to housing to be infringed, so when it comes to the alienation of real estate, one of the owners of which is a child under 18 years of age, the matter does not proceed without the permission of guardianship.

Preliminary agreement form

The provisions of Art. 429 of the Civil Code of the Russian Federation, according to which it is drawn up in the same form as the main one:

written form is required when donating real estate or transferring a gift worth more than 3,000 rubles. from a legal entity;
It is planned to conclude a contract of promise of gift.

If you want to donate property other than real estate, an oral form is sufficient. Such an agreement is considered valid from the moment of execution:

for example, when handing over the keys to a car, etc. For such transactions, written form is not required, but if you wish, you can formalize the transaction on paper - this is not prohibited by law.

Legal advice: it is better to formalize any agreements in writing. An oral promise to donate a valuable thing or to enter into a deed of gift in the future has no legal force.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

How to correctly draw up a contract for the promise of a gift in the future and what is needed for this?

How to correctly draw up a deed of gift for a land plot?

How to correctly draw up a preliminary agreement for the donation of a share of an apartment

It is logical to assume that the preliminary gift agreement is concluded by analogy with other agreements. However, you still need to understand the structure of the document.

Form

Turning to paragraph 2 of Art. 429 of the Civil Code of the Russian Federation, it can be noted that the pre-contract for the donation of a share of an apartment has the same form as that provided for the main deed of gift.

The form of the preliminary agreement is simple, written with notarization , if required by the transaction. The parties can do without a notary if a child’s share is allocated from a jointly owned apartment. The husband and wife will retain a joint share, and the children will receive a share of the remaining living space. The innovation came into force on April 10, 2021. Read more about this in the article “Allocation of shares in joint property of spouses.”

The preliminary agreement must be in A4 format, handwritten or typed on a computer. Be sure to use black or blue paste. If the form is printed on a printer, you need to use the 14 font of a standard editor. It is advisable to find a suitable sample and a blank form.

Content

Real estate is a valuable asset, so the parties will have to reflect all the data about the apartment in the contents of the pre-contract.

What information needs to be included in the content:

title of the legal document (centered);
city and date of compilation;
Full name, year of birth, passport number and series, registration address of the donor;
Full name of the child, information from the birth certificate + details of the minor’s representative (the donee);
obligation of the parties to conclude a deed of gift for the share;
deadline for completing the transaction (day, month, year);
the size of the donated share (⅛, ⅓, ⅔ and others);
information about the donated property (address, floor, area, cadastral data, technical parameters);
information about the title document for the apartment/share;
confirm that the property is not described or mortgaged to the bank;
terms of the transaction and obligations of the parties;
the person who pays the expenses;
the moment the agreement comes into force;
current number of copies of the agreement;
signatures of the parties (donor and representative of a child under 14 years old).

In the section below you can familiarize yourself with a sample preliminary agreement for transferring a share as a gift to a child. Download the document to create your own project based on it. If you are not confident in your abilities or feel that the deal may fall through, get advice from an experienced lawyer on our portal. We will tell you about all the nuances and adjust your further actions.

Preliminary agreement and agreement of promise of gift: differences

Many people confuse these contracts, although there is a significant difference between them in terms of the subject of the transaction.

In a pre-contract, it is the intention of the parties to conclude the main DD within a specified period of time, and in a promise contract - to transfer specific property to the donee on a certain date.

The only thing they have in common is that transactions are free of charge and the consent of the donee is mandatory. Based on Art. 573 of the Civil Code of the Russian Federation, he has the right to refuse the gift. This rule also applies to the pre-contract. If it is in writing and the refusal is in writing. In other cases, an oral form is sufficient.

Are you tired of reading? We’ll tell you over the phone and answer your questions.

Preliminary agreement for donating a share of an apartment to a minor

A preliminary agreement for donating a share of an apartment to a minor is especially relevant. It is compiled so that the parties have the opportunity to make some adjustments, and also, if possible, edit it.

In addition, a preliminary gift agreement allows the parties to familiarize themselves with all the nuances of the transaction.

For example, the donee will be able to learn more about the property that becomes his property, and the donor will become familiar with all the nuances that, in one way or another, accompany the procedure for transferring real estate to a minor.

A preliminary agreement for the donation of a share of an apartment for guardianship may be provided for verification purposes. After this, if necessary, representatives of the guardianship and trusteeship authorities will add certain nuances to it. If the preliminary agreement is drawn up correctly, the guardianship staff will give their recommendations.

Such an agreement for donating a share in an apartment gives children the opportunity to study all the nuances, and if it turns out to be successful, subsequently sign it in the presence of a notary.

The law does not oblige it to be concluded. But in order to avoid possible problems and conduct a transaction according to all the rules, such transactions should be treated with due attention, observing all the nuances.

Since a minor is a person under 18 years of age, this means that it is impossible to transfer real estate to him.

Therefore, the legal representative of the child gets acquainted with the contract and determines to what extent it provides for the rights of the minor . If certain conditions infringe on the rights of this person, changes to the clauses are required.

If everything is satisfactory, the legal representative signs the agreement and this means that he acts on behalf of the minor. Guardianship and trusteeship authorities are involved in the execution of the transaction.

They ensure that all the interests of the minor are taken into account. If something is not satisfactory, the legal representative may be required to eliminate the shortcomings or be offered to refuse the transaction.

Is it necessary to register a preliminary agreement?

Registration of the pre-contract is not required. This is only necessary when transferring ownership of real estate free of charge. This is also stated in paragraph 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59: even if it is planned in the future to draw up the main DD subject to registration, the pre-contract should not be registered - the registration authority will simply refuse this.

Important! The conclusion of a pre-contract does not necessarily mean the transfer of ownership of the property to the donee. The parties, by mutual agreement, can refuse to execute it, so registration is not relevant.

How to draw up a preliminary gift agreement

Paragraph 2 of Article 429 of the Civil Code of the Russian Federation provides for the execution of a preliminary gift agreement in the same form as for the conclusion of main agreements.

If the form of the main agreement is not established, then the preliminary agreement must be drawn up in writing. Failure to comply with the form of the preliminary agreement entails its nullity.

According to current legislation, the right to transfer property when making a gift agreement, the subject of which is real estate, requires state registration with the relevant services.

But this does not mean that the preliminary gift agreement needs to be registered. Registration has nothing to do with the form of the transaction.

It is important to consider that if the main agreement is certified by a notary office, then the preliminary agreement must also be certified by a notary. But in 2021, gift transactions are not subject to mandatory notarization.

Sometimes one of the parties does not want to enter into the main gift agreement and at the same time tries to challenge the validity of the preliminary agreement in court.

If the preliminary agreement is declared invalid, then the main agreement will not be concluded. Therefore, when concluding a preliminary gift agreement, you need to be attentive to its form and content.

What can you give?

A pre-contract is concluded with the intention to subsequently draw up the main deed of gift, under which movable and immovable property can be donated. Let's look at everything in more detail.

Automobile

To donate a vehicle, a written form is not required if the donor is an individual. But it is better to draw up everything on paper: this will make it easier to prove the intention to draw up a deed of gift within a specific time frame.

Land plot

If the donor owns a plot of land purchased during marriage, the notarial consent of the spouse is drawn up along with the pre-contract. In this case, the main DD must also be certified by a notary.

Important! All buildings on it are alienated along with the site. They must also be indicated in the pre-contract.

Residential building and land

You have the right to donate a private house, but along with it, the plot on which it is located will also become property.

Alienation of only one type of property in this case is unacceptable. This must be taken into account when drawing up a pre-contract.

Apartment

The apartment is classified as real estate, and all contracts involving its alienation are concluded in writing. You can donate either the entire living space or part of it.

First, the donor needs to allocate a share in the common property right and register the changes in Rosreestr.

Money

Any currency can be given orally, but if desired, the parties can create a written deed of gift.

In this case, the pre-contract is also drawn up on paper. It is not necessary to have it certified by a notary.

Drawing up a preliminary donation agreement

Based on the information described in paragraph 2 of Article 429 of the Civil Code of the Russian Federation, when drawing up a preliminary gift agreement, you can use the same form that is used to conclude main transactions.

Moreover, if the form of the agreement in question is not established at the legislative level, the preliminary agreement, in any case, must be concluded in writing, and ignoring this rule leads to the loss of the agreement’s legal force.

Let us note that, although, according to established standards, the right to transfer property during the signing of a gift agreement requires mandatory state registration with the relevant authorities (MFC, Rosreestr, etc.), the preliminary gift agreement does not require such registration.

However, if the parties to the transaction plan to resort to the help of a notary to draw up the main agreement, then the preliminary agreement must be drawn up in the same way. At the same time, at the moment, the deed of gift is not subject to mandatory certification at a notary office, and therefore you do not have to use the services of a specialist!

Important : If one of the parties to the transaction subsequently refuses to fulfill the terms of the main gift agreement by challenging the preliminary agreement in court, the main agreement will be automatically declared invalid! Therefore, we recommend that you be extremely careful when drawing up the contents of the preliminary document! The best solution in this case would be to seek a free consultation from the experienced lawyers of our website!

Who can I give it to?

Any person has the right to act as a donee. If he is between 14 and 18 years old, he signs the contract independently, but with the consent of his parents. Transactions involving children under 14 years of age are carried out only by parents.

Close relatives

Close relatives should be understood as parents, brothers, sisters, children, grandparents, and spouses. You can give them any things and real estate.

For a minor child

If the recipient is a child under 18 years of age, you will have to obtain the consent of his parents or guardians. When donating real estate, you need to register the transfer of ownership, but on the basis of a standard deed of gift, and not a pre-contract.

There is no need to obtain permission from the guardianship authorities, because here the property status of the minor does not worsen, but, on the contrary, increases.

The exception is if the child is under guardianship: in this case, all transactions with him are carried out under the control of this body.

To other persons

A pre-agreement on the intention to draw up the main DD can also be drawn up with a stranger who is not a relative: a friend, girlfriend, acquaintance, etc.

Family ties in such transactions are important only when receiving property under a standard deed of gift - in this case, a non-relative will have to pay tax.

Agreement for donating a share of an apartment to a minor child

The main difference between a deed of gift if the recipient is a minor is the impossibility of disposing of it before the age of eighteen. That is, in fact, the minor acquires the right of ownership immediately after registering this right with the relevant authorities, but this does not automatically entail the emergence of the right to dispose of this property.

Note! The information in this article may not be complete due to frequent changes in legislation. In addition, your specific situation may require a more detailed study. Therefore, we advise you to consult with our specialists by phone: in Moscow, in St. Petersburg, throughout Russia 8 (800) 511-81-26 - it’s free, anonymous and professional!

We recommend reading: Rospotrebnadzor write a complaint online

How to draw up a preliminary gift agreement: step-by-step instructions

The procedure for drawing up a pre-contract consists of several stages, which will be discussed below.

Step 1: agree on the deal

First you need to agree on a deal with the recipient - do not forget that he has the right to refuse the gift.

It is recommended to stipulate in advance when the main deed of gift will be drawn up and what will become his property.

Step 2: drawing up a pre-contract

You can draw up a pre-contract yourself or seek help from a lawyer.

In the latter case, the document will be drawn up as competently as possible. Incorrect execution significantly increases the likelihood of challenging the transaction.

Documentation

When signing the pre-contract, you must have with you all the documents for the alienated “gift”.

The list of main documents includes:

passports of the parties;
power of attorney, if an attorney acts on behalf of the donor or recipient.

The additional package depends on the subject of the transaction:

Apartment	Extract from the Unified State Register, technical plan
Land plot	Cadastral passport, extract from the Unified State Register
A private house	Extract from the Unified State Register of Real Estate, documents for a plot of land
Automobile	STS and PTS

Sample preliminary donation agreement

The pre-contract must include information about:

Full name, registration addresses, passport details of the parties to the transaction;
date of drawing up the main contract (the most important point);
gift: address, value, etc.;
conditions for drawing up and content of the main deed of gift.

At the end, the parties sign. Indication of the date of registration is mandatory - the period during which the deed of gift must be drawn up is counted from it.

Sample preliminary donation agreement:

Consultation on document preparation

Step 3: Notarization

If the main DD is subject to certification by a notary, then the pre-contract is also certified. In other cases, the parties can contact a notary office if they wish.

Legal advice: it is better to have the deed of gift certified by a notary. This will simplify legal proceedings if one of the parties refuses to perform. The notary's signature will confirm that the donor and donee were legally capable at the time of the transaction, and no psychological or physical pressure was exerted.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Briefly: the parties have the right to independently draw up a pre-contract, and, if necessary, contact a notary. There is no need to register the transaction.

What does the preliminary gift agreement cover?

Apartment share

A share of an apartment is one of the items the donation of which may appear in the preliminary agreement. As in the classic case, the parties to the transaction are the donor and the recipient. By drawing up a document, they undertake to enter into a gift agreement at a certain point in the future. Moreover, all the conditions of the upcoming transaction can be stipulated in advance in a paper that is drawn up in advance.

Preliminary agreement for the donation of a share in an apartment

House

A preliminary donation agreement can also be drawn up in relation to a house.

For a document to be considered valid, it must indicate:

information about interacting parties;
characteristics of the property;
the address of its location;
date of conclusion of the main transaction;
date of drawing up the preliminary agreement.

Sample preliminary agreement for the donation of real estate

The signatures of the parties are placed at the end of the paper.

In addition to basic information, it is recommended to include in the document information that the owner of the property is in adequate condition and performs the manipulation in good faith (the paper can be supplemented with relevant certificates), and this minimizes the likelihood that the contract will be challenged in the future

Land plot

You can also draw up a preliminary donation agreement for a land plot.

In order for the paper to have legal force, the following points must be taken into account:

the subject of the agreement will not be the land, but the owner’s intention to donate it;
the document must reflect the main characteristics of the property;
the moment of drawing up the paper must be indicated;
the contract must contain the date of conclusion of the main transaction;
if the land is under mortgage, the contract must indicate the current status.

The parties may include in the agreement other points that they consider important.

Real estate

The preparation of a preliminary agreement for almost any property is carried out in approximately the same way. The document must reflect the intention to complete a transaction at a certain point in the future, as well as indicate the deadline for fulfilling the obligations assumed.

The date of its preparation must be reflected in the document. So, if the paper does not contain the date of the planned transaction, the period will be assigned by default and will be 1 year .

But if there is no reference at the time of conclusion of the contract, it will be declared invalid. For this reason, experts advise to be careful when drafting the document.

Termination of the preliminary agreement

The pre-contract is automatically terminated if obligations are not fulfilled within 1 year or another period specified in it. When drafting, it is recommended to immediately indicate under what conditions the parties can terminate the transaction voluntarily.

Other grounds for termination:

presence of encumbrances: seizure of property, being in collateral;
discovery of shortcomings in the “gift”, about which the donor did not warn in advance;
commission by the donee of a deliberate crime against the life and health of the donor.

If the possibility of voluntary termination is not specified in the pre-contract, it can be canceled in court. According to Art. 445 of the Civil Code of the Russian Federation, one party has the right to seek registration of a deed of gift through the court if the second refuses this. A claim for forced conclusion of a transaction can be filed within 6 months from the date on which the obligations were to be fulfilled.

In short: you can’t just change your mind about fulfilling the terms of the pre-contract - the other party will be able to achieve forced conclusion through the court.

Features of the preliminary gift agreement

The main condition under which a gift is recognized by law is gratuitousness. When making a gift, the donor must prove that he is acting for free, that is, he does not receive any benefit from his actions. Otherwise, deeds of gift would be used for various illegal transactions - tax evasion or wills, illegal sales and even corruption.

The deed of gift is drawn up in such a way that its terms do not raise doubts about the absence of selfish motives on the part of the one who gives - only the desire to give his property right to another. It also necessarily describes the subject of the donation and both of its sides. And the preliminary gift agreement in this sense does not differ from the main one: the subject of the agreement is complete and describes everything that will be in the main gift deed.

In addition, the preliminary document stipulates the time frame within which the deed of gift is drawn up and officially executed. Without these deadlines, the document loses its meaning: the fulfillment of the conditions specified in it could be postponed indefinitely. If you do not set an exact deadline for concluding the main agreement, in accordance with Art. 429 of the Civil Code of the Russian Federation, this period will be one year from the date of conclusion of the preliminary one.

Also, the preliminary donation agreement often specifies the conditions of its donation: sometimes it is these conditions, and not the deferment of donation itself, that are the purpose of the agreement. For example, if the donor undertakes to draw up a deed of gift for an apartment for his grandson, but only if he completes his studies at the university. Both parties then fulfill obligations to each other before the gift is made. The main thing is that these conditions do not call into question the disinterestedness of the transaction!

Is a preliminary agreement the same as a promise to give?

Sometimes, when there is a need to make a gift with official registration, but not immediately, but after some time, the donor is faced with two ways to do this.

The first is the preliminary gift agreement we are considering, the second is an ordinary deed of gift, drawn up in a consensual form. Without delving into the issue, it is very easy to confuse these two documents: both of them imply that the donation will be made, but not at the time of agreement of the parties, but somewhat later. What is the difference and how not to make a mistake with the choice?

The fact is that a consensual gift agreement, unlike a preliminary one, is already a gift in itself. The period after which the property will become the property of the donee is stated in it, but at the end of it nothing will need to be concluded. When the consensual agreement expires, the donee asserts his right to the donated property.

Completion of the preliminary gift agreement means that it is necessary to conclude the main one. If this does not happen, the terms of the transaction are considered violated, and the recipient has the right to demand compensation for damage.

Recognition of the preliminary agreement as void

A pre-contract is considered void if its content does not correspond to the legal consequences.

There are other reasons:

execution of a document by an incapacitated person;
non-compliance with the established form;
lack of reference to the item - the intention to draw up a deed of gift within a certain period.

The court may declare the pre-contract void upon the application of one of the parties - the donor or donee, or a third (interested) person.

Arbitrage practice

The practice of declaring pre-contracts void or terminating is small, but it is worth considering one example when the request to annul a transaction was satisfied by the court:

The woman drew up a pre-contract with the donee to draw up a deed of gift for the land plot. According to the terms of the deal, the main DD must be completed within six months. Until this moment, the recipient arrived at the site and realized that it was impossible to carry out construction on it: high-voltage wires were installed in a place suitable for building a house, and there was no possibility of conducting engineering communications.

Before drawing up the pre-contract, the donor assured that it was possible to build on the land without any problems. The recipient contacted the gas and electricity service, where she was given a certificate prohibiting construction on the donated site.

The recipient approached the donor with a written proposal to terminate the pre-contract, indicating the reasons. There was no response within 30 days, and then the woman went to court, presenting evidence. The claims were satisfied.

Functions of a preliminary donation agreement

To invalidate such a transaction, you do not have to go to court. It will be inherently impossible to execute, because it was concluded in violation of the norms of current legislation. There is a whole list of conditions under which an operation can be declared invalid.

The paper must contain a deadline during which it is necessary to conclude a gift agreement. If the date is not indicated in the document, it is considered that the transaction for the gratuitous transfer of real estate must be concluded within a year from the date of drawing up the document.