How to present a gifted apartment. Is it possible to give a gifted apartment?

People of advanced years are often worried about the issue of providing their children and grandchildren with their own real estate. You can inherit a house or an apartment from your parents in several ways: by testament, by law, or by obtaining a gift from their life. The latter option is often used by elderly people for their own comfort. It is for this reason that they seek legal advice on how to give an apartment to a child or grandchild so that the rest of the family does not claim it.

In what cases is a transaction possible?

According to the current legislation, any citizen has the right to transfer ownership of his property to another, including free of charge. That is, it turns out that you can give a privatized apartment, which can not be said about communal property. By the way, the inheritance is also left only with the property for which all the documents were issued during their lifetime. It turns out that the first and main condition for concluding such a deal is the possession of the subject of donation on legal grounds.

The second, no less important point is the absence of encumbrances. This means that it is impossible to donate an apartment, car or other thing, if it is in pledge with the bank or in a dispute. The "cleanliness" of the property during the conclusion of the transaction is checked by a notary.

The third condition of donation is gratuitousness. That is, the contract can not specify any payment for the receipt of property or additional conditions for entry into the ownership. In the presence of the latter, the transaction can be formalized by a contract for life-long maintenance or a will. Gifting can not be done in return for any service.

And last but not least, the parties' ability to act. When registering any transaction for the alienation of real estate (including donations), the notary must make sure that both the donor and the recipient are responsible for their actions. In case of the slightest doubt, the transaction simply will not take place.

Who can give real estate

When it comes to such a serious property as an apartment, house or other premises, the alienation takes place mainly with a notarization. Participants in such a transaction can be both relatives and absolutely strangers to each other people. After all, no one forbids making expensive gifts even for strangers. The only question is that in the latter case, there may be a tax on the gifted apartment, and not small.

When concluding a transaction between relatives, tax liabilities sometimes appear. So, before you give an apartment to your son, daughter, grandson or granddaughter, you should consult with a lawyer about all the costs associated with the registration of such a transaction. Perhaps, another way of alienation (selling, exchange, etc.) will be more profitable.

Execution of a transaction without a notarization

According to the norms of the current legislation, the contract of gift of real estate can be concluded in simple written form. This means that you can do without a notary. Such a deal would be perfectly legal. As for the state registration of both the contract itself and the ownership of the new owner, it has not been canceled. It is carried out regardless of the form of the contract. Just if the notary is responsible for the transaction, then he will help with the registration. When donation is made without his participation (usually this is done in order to save money), the contract itself and the property right are brought into the database by the appropriate state body after payment of the state duty. That is, in simple terms, so that the gifted become the rightful owner of the apartment, he will have to run around various services.

Alienation of joint ownership

Sometimes, the property that a person is going to give or sell to a person does not belong to him completely. It is not a question of shared ownership, since in this case everyone disposes of his own part, but of a joint one, for example, acquired in a marriage. Even in the case of donating such an apartment without involving a notary in the transaction, it will be necessary to have the consent of the spouse for her conclusion. Exceptions are cases of individual ownership. This can be either with the current marriage contract, according to which each of the spouses has his own property, which he has the right to dispose of without the knowledge of the other. The second option is the free reception of real estate. That is, if a person wants to give someone a gifted apartment, the consent of the husband or wife in this case is not necessary.

It should be noted that in some cases the spouse can still claim a part of the property received free of charge. For example, if the living space was repaired at the expense of joint funds, the house was completed or there was a re-planning, as a result of which the object went up. In this case, to defend their rights to the donated apartment will have to be judicially. Regardless of the form and manner of alienation of property , the spouse's application for consent to the transaction is subject to notarization.

How the gifted apartment is divided in a divorce

So, property, including immovable property, received free of charge, is in personal property. However, if its value was increased by means of jointly earned funds, then in case of divorce, the spouse is entitled to a share. This should be remembered by parents and think before you donate an apartment to your daughter or son for a wedding. Naturally, in such a joyful moment no one thinks about the possible disintegration of the newly created family. But to whom, if not to parents, to worry about the fate of their own child? If the transaction is already completed, and there is no way back, you can once again give the gifted apartment to another relative and not worry about a possible section when parting. It is better to be safe and take extra measures than to try to sue your own property in the future.

Which is better: a gift or testament?

This question is often considered rhetorical. The fact is that there is simply no unambiguous answer to it. And this means that in each individual case the right decision can be its own. To accept it, it is necessary to understand the features of both transactions, the nuances of their commission and possible consequences.

The first thing that you should pay attention to when choosing is costs. If the property is transferred into a free property to an outsider, he must pay tax on the gifted apartment, which is 13% of its estimated value. The only exceptions are close relatives (children, parents, brothers, sisters, guardians, trustees and spouses). So if the grandmother wants to transfer her home, for example, to her grandson, it will be cheaper to first give it to her son or daughter, so that they can later give the gifted apartment to their child. With the payment of taxes for the inheritance of real estate, everything is much more complicated, so that the advice of a competent lawyer does not interfere with making a final decision.

The moment of entry into the property

Another significant difference between receiving a gift and accepting in the inheritance - in time. When drafting a will, the ownership right does not change at once. In order to become the owner of such an apartment, it is necessary after the death of the testator to wait for 6 months and only then make out the documents. In addition, direct relatives have the right to their share even in the presence of a will. Compiled by all the rules of the document does not prevent the owner of real estate during his lifetime to sell an apartment or give a third person.

With regard to the gift agreement, it grants the ownership of the object specified in it at the time of its registration. That is right away. This ensures the security of the gifted person more than the will. But if we consider the opposite point of view, then we get a different picture. Having presented an apartment to a grandson, daughter or other relative, a person loses all rights to it. In some cases, after this broad gesture, he risks being on the street.

Lifelong Content Contract

It can be called a compromise between donation and testament. On the one hand, ownership of it comes at once. So neither relatives, nor third parties can claim the property any more. On the other hand, the former owner of the apartment reserves the right to use it. To all other things, a ban on alienation is imposed on property (as in the case of a mortgage in a bank). This means that the new owner will not be able to give the gifted apartment, sell it or lay it until the death of the former owner.

The ban will be lifted by a notary in accordance with applicable law. For this, the new owner will need to apply with the contract and death certificate. This scheme is beneficial to both parties. The degree of kinship here does not matter.

In addition, in the contract for life-long content all terms of the transaction are indicated. If not, it is considered to be canceled. You can specify everything from the use of the facility and ending with the care of the elderly person (treatment, rehabilitation, rest, consumer services, etc.). Therefore, before you give the apartment to a relative, experts strongly recommend considering this option.

Cancellation of a transaction

Before taking any action, a person must understand its consequences, as well as the possibility of cancellation. Everyone has the right to change his mind, circumstances can change, etc.

It turns out that any transaction is declared invalid, but only if certain procedures are followed and all conditions are met. The simplest thing is the case with the will. His person can change as many times as he likes. Naturally, it costs money, but legal problems do not arise.

If the apartment is donated, then it is possible to cancel such an action, but it is not so simple. According to the current legislation, a free transfer to the property, documented, is canceled only in case of threat to the life or health of one of the parties. As a rule, we are talking about the donor and his entourage. But in order for the deal to be declared invalid, the threat will have to be proved.

The contract of life imprisonment can be annulled in case of violation of its clauses or in court. And in the first and second cases it will be necessary to prove certain facts.

A gift of a mortgaged apartment

In connection with the spread of such a phenomenon as mortgage lending, some people have issues related to the alienation of encumbered property. Theoretically, this is possible, but with the consent of the mortgagee. The bank, in turn, is unlikely to agree to a deal, as it is not profitable for him. Therefore, before you give a pledged apartment, you will have to fully pay for it and remove all encumbrances.

Alienation of a share

If the gift of the whole apartment is more or less clear, then what if there are several owners, and one of them wants to transfer his share to a third party? In the case of the sale of such property, the co-owners have a priority right to purchase. If it is a question of gratuitous alienation, then all are equal. That is, before selling the stake, the owner is obliged to offer it to the co-owners, and when donating, it can be disposed of exclusively at its own discretion.

Is it possible to give a gifted apartment?

The right of ownership at the conclusion of this transaction comes at the time of its registration. After that, the new owner has the full right to dispose of the property at his own discretion, including selling, mortgaging, bequeathing or giving. At the same time at the time of the new transaction, all taxes and duties on the previous one must be paid.

Limitation of actions

Any transaction, starting with the sale and ending with life-long content, can be canceled by court order. Reasons to appeal to the servants of Themis in search of justice after the gift of an apartment can be mass. But no more than buying, me, or other alienation. So it's not worth to panic about the possible termination of a deal just because it was a gift. But also to forget that the limitation period for such cases is 3 years, too.

The registration of the real estate gift transaction is appropriate only in cases when it is a question of really gratuitous transfer of property to close relatives. An attempt to replace it with a banal purchase and sale with a view to reducing costs is ineffective, since it can only lead to an increase in the amount due to the need to pay income tax.