Is it possible and how to donate a share in a mortgaged apartment?

It's no secret that currently the most realistic way to become the happy owner of your own real estate is to enter into a credit relationship with a bank. When certain circumstances occur , it becomes necessary to dispose of the mortgaged housing in a special way - exchange, rent out, donate, etc. Next, we will consider the situation when the apartment is mortgaged - is it possible to issue a deed of gift for it and what is needed for this?

The essence of mortgage lending and the rights of each party

Each banking structure has its own characteristics regarding the issuance of housing loans. But, in essence, they all agree on one thing: the bank is the full owner of an apartment purchased on credit until the amount of debt is fully repaid. In this case, housing serves as collateral for the security of the transaction.

The list of rights that the borrower is entitled to in relation to the property is determined by each bank independently. Most often, the lender's permission is not required to register in the apartment yourself and register your family members there.

Also, transactions for the transfer of an apartment for free use are often carried out without the knowledge of the bank, and this does not contradict the law. But everything that relates to transactions for the alienation of property - purchase and sale, donation, paid rent - is under the vigilant control of the real owner of the property, that is, the bank.

Mortgage and deed of gift

It is not difficult to draw up a deed of gift for a mortgaged home. But making it have legal force is very problematic. This is possible only with the permission of the bank. The easiest option is to pay off the rest of the debt. It is from the moment the mortgage is repaid that the borrower becomes the full owner of the property, which means he can dispose of it at his own discretion - donate, sell, exchange, etc.

But despite the simplicity of this option, there is one very big “but” - there are very few people who are able to pay off their mortgage debt 10 or 20 years in advance. Therefore, the vast majority of cases are characterized by the need to donate mortgaged real estate with an encumbrance, that is, when the entire amount of the debt has not yet been paid for it.

The complexity of this situation lies in the fact that for the lender, a change of owner means additional and completely unnecessary risks.

But if you still want to try your luck, then even at the stage of drawing up a mortgage agreement, insist that your rights include the possibility of donating an apartment in favor of third parties with the consent of the lender.

In this case , there is a possibility that the bank will make concessions to you and at least consider the possibility of changing the owner .

How to obtain the bank's consent to draw up a deed of gift for a mortgaged home?

Bank employees will analyze what part of the income will remain with the citizen after the monthly payment of mortgage payments. In addition, it will be taken into account how many dependents he has to support, how stable his earnings are and other nuances.

In addition to financial well-being, bank employees, when making a decision to change ownership, must clearly consider the desire of a third party to take on the burden of paying the remaining amount of the mortgage debt.

Is it possible to donate a mortgaged apartment bypassing the bank?

1. Recognition of the transaction as invalid through the court. Moreover, in such situations, the law is always on the side of the bank.
2. Request for fulfillment of mortgage obligations. To implement it, the bank can even sell the apartment, regardless of who currently owns it.

Summarizing all of the above on the topic of whether it is possible to issue a deed of gift for a mortgaged apartment, we emphasize that this is quite difficult, but in principle, under certain circumstances, it is possible. The main thing that:

• such a possibility was stipulated in the mortgage agreement;
• the new borrower was solvent and agreed to all the bank’s conditions;
• The bank itself wanted to consider this issue.

If, despite all the difficulties, the transaction for the gratuitous transfer of housing still takes place, it’s time to think about other related issues, for example, taxation. When concluding a gift agreement not with close relatives in 2023, you will have to pay a tax in the amount of 13% of the cost of housing.

Due to the 13% tax, it is not at all profitable to give a mortgaged apartment to non-relatives; in this case, it will be much more profitable to transfer the apartment under a sales contract; see the video below for the features of such a transaction.

Video: Buying and selling a mortgaged apartment

Is it possible to donate an apartment with a mortgage?

Not so often, but still there are times when situations arise that force you to think about whether it is possible to donate an apartment with a mortgage? They turn to banks with this question, since a lot depends on them.

Obviously, it is advisable for the borrower, even before purchasing real estate through mortgage lending, to understand what options he has for using real estate secured by bank collateral and then making decisions will become much easier. In this article we will pay a little attention to whether it is possible to issue a deed of gift for an apartment purchased with a mortgage.

What does the law say about donating an apartment located at a bank?

It is worth taking into account the thoughts from Article 37 of the Law “On Mortgage”, which clearly states that real estate pledged under a mortgage loan is subject to alienation according to the decision of the mortgagor and this can be done in several ways: by putting it up for sale, by donation, exchange operation and some other methods.

Attention : We would like to highlight that if the owner of a credit home wants to do otherwise, then it is necessary to obtain the consent of the lender.

Is it possible to issue a deed of gift for a mortgaged apartment: what do the banks say?

As a rule, banks include a separate clause in mortgage lending agreements prohibiting the gift of real estate. And even if the agreement does not contain such a restriction, creditors can only in exceptional cases compromise with the mortgagor, because by carrying out such transactions they take a very serious risk. What does this mean?

It is no secret that bank real estate serves as collateral under a loan agreement. The situation can change radically if the ownership of the mortgaged housing is transferred to someone else, for example, by donation.

Such a transaction deprives banks of their previous rights and opportunities in relation to the real estate pledged as collateral. And here we can even talk about a very high degree of probability of the bank completely losing the collateral in the form of an apartment.

None of the creditors can allow this to happen.

Important detail : Some mortgage owners may try to conduct real estate transactions secretly. If such an owner at some stage managed to formalize a deed of gift for the property and in some other way achieve the alienation of the property, the creditor has the right to take appropriate retaliatory measures.

In this case, banks have several options for resolving the situation:

• requirement to recognize the invalidity of the completed transaction for the alienation of property;
• long-term fulfillment of loan obligations and foreclosure on the mortgaged apartment, regardless of who is its current owner.

Legal scholars emphasize that the conditions for granting a mortgage loan, as specified in the above-mentioned Article 37 of the Federal Law “On Mortgage,” are dispositive. What does this mean in practice? Nothing prevents the party giving the pledge, as well as the pledgee, from making adjustments to the existing agreement regarding the procedure for the alienation of the property pledged as security.

To summarize what has been said about whether it is possible to donate a mortgaged apartment, we emphasize that if a client who has agreed to register real estate according to the terms of the loan later has a desire to donate the housing to some other person, he needs to make special efforts to agree with the bank on the inclusion in the mortgage agreement of a new condition suggesting that real estate can be alienated to a third party without the consent of the mortgagee. The chances of achieving a positive result are small, but they remain. At the end of the article we provide a sample agreement for the gift of a mortgaged apartment.

Let’s also not forget that carrying out such a transaction entails the emergence of new questions. For example, when making a donation of credit housing or its share, you will have to seriously think about taxation, which can become a completely new page in your property history.

Sample document

Sample apartment donation agreement

Video on the topic

How and to whom can you give a share in an apartment?

“Share in an apartment,” according to the current civil legislation, is a person’s share in the ownership (common or shared) of this property.

Such a share (as well as part of the share), like any other personal property, a person has the right to dispose of in any way he wishes, including selling or donating.

Who can you donate your share or part of the share in the apartment to?

The owner can donate the property he owns to anyone. And without being interested in the opinions of other apartment owners on this matter. This compares favorably with a gift agreement from a sale and purchase, in which the primary right to purchase a share belongs to the co-owners of the real estate. Therefore, answering the question of who can give a share in an apartment, it is worth noting that the recipients of the deed of gift can be both relatives and close people (husband, wife, son, daughter, grandchildren, etc.) of the owner of the share, as well as completely strangers.

Registration of a deed of gift for a share

When the donor and the recipient have decided to enter into a corresponding transaction (and legally a gift is considered a transaction), you should pay attention to how to draw up a donation agreement for a share in an apartment legally competent.

You can find out how to formalize the donation of a share of an apartment, including a correctly privatized one, from an agency specializing in transactions with shares (Doli.ru), from Rosreestr specialists or MFC employees.

The main thing to remember is that:

• the gift agreement is gratuitous;
• the recipient has the right to refuse the gift;
• there are legal restrictions on donation (for example, it is prohibited between legal entities);
• the donor must be legally capable.

How to gift a share in an apartment to a close relative?

Many people prefer a gift agreement to a will. Because the first one is much more difficult to challenge in court, and this is sometimes fundamental - for example, for those who want to leave their property to a specific person, without allocating mandatory shares and other legal formalities.

If you need to formalize a gift transaction, you should first find out how to properly gift a share in an apartment to a close relative, including a minor. But first, find out: who does the law classify as “close relatives”? And this:

• direct relatives (ascending, descending): parents, children, grandparents;
• brothers and sisters (full and half-blood).

What does it take to give a share in an apartment to a minor?

If the relative to whom the share in the ownership of real estate is given is an adult, the donation procedure and the agreement are no different from the standard ones provided for by current legislation. But how to give a share in an apartment to a minor child?

If the donee has not reached 18 years of age, there are some nuances in drawing up a deed of gift:

• The contract will be signed not by the recipient himself, but by his legal representatives (parents, trustees or guardians);
• a child or teenager will be able to dispose of donated property only when they become adults or if there are grounds for emancipation (marriage, conclusion of an employment contract, etc.);
• in addition to the data of the recipient, the contract also includes the data of his legal representative;
• such an agreement can only be gratuitous; no services or actions of a minor can be included in it as conditions of the transaction.

Many are also interested in the question: can a minor give a share in an apartment? Of course not.

The state does not consider children and adolescents as a possible party to a contract for the donation of a share in a real estate property. Even if they want to give their share in a privatized apartment to mom or dad.

The law clearly stipulates that a person can dispose of his property only after reaching adulthood.

Deed of gift for a share in a mortgaged apartment: is it possible?

A person has the right to donate his share in a mortgaged apartment to his daughter, son, wife or husband, but only if all the conditions stipulated by the mortgage loan agreement are met/completed.

That is, the borrower no longer owes the bank anything, and the apartment and, accordingly, the share in it (1/2, 1/3, etc.) have become his full legal property and are no longer the subject of collateral or an encumbrance.

It is impossible to make a deed of gift for a share in an apartment that is pledged to the bank under a valid mortgage agreement.

Return of the donated share in the apartment

Sometimes donors are interested in whether it is possible to return the donated share of the apartment back? Legislation on this matter (Article 578 of the Civil Code of the Russian Federation) clearly defines situations when the donor has the right to cancel the documented decision to donate a share. This is possible if:

1. The recipient made an attempt on the life/health of the donor and/or members of his family (if the donor was intentionally deprived of the life of the recipient, the heirs of the donor have the right to demand the cancellation of the gift agreement in court).
2. The recipient's handling of the donated property entails the threat of its (the property's) irretrievable loss.
3. If the donor (individual entrepreneur or legal entity) entered into a gift agreement in violation of the provisions of the bankruptcy law.
4. The gift agreement also provides for the donor's right to cancel the transaction in the event that he outlives the recipient.

Where to draw up a donation agreement for a share of an apartment?

Don’t know how to donate a share in an apartment so that everything is legal? Are you looking for how to formalize a gift transaction correctly? It is best to contact an agency specializing in the manipulation of parts of real estate ownership on this issue.

Qualified Doli.ru specialists are ready to give comprehensive and detailed advice to the applicant on any of the relevant issues, as well as help to profitably buy, sell or donate a share in an apartment, and correctly draw up all the necessary documents.

Have questions? Call back?

How to donate an apartment with a mortgage

One of the most realistic ways to buy your own home is to become a bank client and take out a mortgage on your apartment. During loan repayment, life circumstances may change. One of the likely situations is the need to donate an apartment with a mortgage.

The procedure for registering a deed of gift is regulated by Article 32 of the Civil Code of the Russian Federation and implies the gratuitous transfer of an apartment to another owner without the possibility of return. When donating a share of an apartment encumbered with a mortgage, the consent of other owners is not required. Whether such a step can be taken is determined by the bank, the real owner of the property, before the full amount is paid.

If the apartment has a mortgage, then the easiest way to complete the transaction is to repay the loan before donating it. If the debt balance is small, you can take out an unsecured loan from the same bank.

What is the disadvantage of this option? An unsecured loan implies a higher interest rate compared to a mortgage loan and shorter repayment terms.

Legal basis for donating an apartment with a mortgage

If the debt is large and it is impossible to take out a loan to pay it off, you can donate an apartment without repaying the loan. The legal basis for such a transaction is regulated by the Federal Law “On Mortgage”. The rights and obligations of the parties are specified in Federal Law No. 122, and the methods for ensuring the fulfillment of pledge obligations are specified in Article 329 of the Civil Code.

If one of the parties violates the accepted agreements, Article 334 of the Civil Code regulates the possibility of returning real estate. The mortgage agreement is also of great importance: if its contents do not contradict federal law, then its provisions take precedence.

In accordance with Article 37 of the Federal Law “On Mortgage”, the borrower has the right to donate a mortgaged apartment, which is pledged to the lender. In this case, the mortgagee - the bank - must give its consent to this.

A compelling argument to obtain it is the borrower’s poor health and/or lack of financial resources.

Your task is to convince the lender that his risks at least do not increase, and even better, decrease.

If you are considering donating an apartment at the stage of applying for a mortgage, try to include in the loan agreement a clause stating that the transaction does not require the bank’s consent. If there is no such clause in the document, it must be agreed upon with the lender. To do this, you need to obtain written consent from the bank to transfer the collateral free of charge.

The bank has the right to prohibit the gift transaction. This is due to the fact that, in addition to the right of ownership, loan obligations are transferred under the contract, so it is unlikely that it will be possible to give housing to a minor, elderly or low-income person.

Conditions that the recipient must meet

If the bank has given preliminary consent to change the owner of the mortgaged apartment, then the client submits an application for permission to donate. After this, bank employees take the following steps:

• analyze the solvency of the new owner by calculating the amount that will remain after paying the monthly installment;
• check the stability of earnings;
• find out the number of dependents supported by the potential payer.

Also, bank employees need to make sure that the future owner of the apartment really wants to take on the burden of the mortgage loan.

List of conditions that must be met by the person in whose favor the gift agreement is drawn up

• be a citizen of the Russian Federation;
• have permanent registration at the location of the banking institution;
• have at least six months of experience at your last place of work;
• receive a salary sufficient to pay monthly contributions.

Is it possible to issue a gift deed bypassing the bank?

In this case, it will not be possible to legally register an apartment as a gift without the permission of a banking institution. All housing encumbrances are reflected in Rosreestr, so the registrar will not be able to conduct a transaction without the consent of the banking institution.

An attempt to issue a deed of gift without the bank’s permission is fraud from the point of view of the law. In this case, bank employees take retaliatory steps, which may be as follows:

• filing an application with the court, which with almost 100% probability will recognize the transaction as illegal;
• requirement for early repayment of the loan and payment of a fine.

If the bank's requirements are not met, the latter has the right to sell the apartment. Filing a counterclaim against a banking institution will definitely not change the situation for the better, since the transaction was carried out fraudulently.

Required documents

In addition to an application to a banking institution with a request to authorize the donation procedure , you must provide the following package of documents:

• documents of the person in whose name the deed of gift is issued;
• documents on ownership of real estate;
• a draft deed of gift drawn up in as much detail as possible to avoid further misunderstandings.

After approval by the banking institution, they begin to draw up a gift agreement , for which you will need the following package of documents:

• positive response from the creditor bank;
• civil passports of the donor and the recipient;
• registration certificate for the apartment;
• document certifying ownership of real estate;
• extracts from the register of property rights and house register;
• consent of the owner’s spouse if the mortgage agreement was concluded during marriage;
• positive response from the guardianship council if minors are registered in the apartment.

If the apartment is owned by several persons, then all of them must participate in signing the deed of gift. The contract states :

• details of the parties to the transaction;
• a link to documents confirming ownership of the apartment;
• technical passport for housing;
• an indication of the transfer of real estate without payment;
• a list of the rights and obligations of the donor and the recipient;
• consent of the recipient to assume all obligations to repay the remaining amount;
• signatures of the parties.

If the donor has debts to the bank to pay off a mortgage loan, then the gift agreement must reflect this clause and the consent of the person accepting the apartment as a gift to pay off these debts and penalties. The gift agreement is registered with Rosreestr within a year, otherwise it becomes invalid.

Transaction cost

The gift agreement is taxable. According to Article 220 of the Tax Code of the Russian Federation, if the donor and recipient are not close relatives, the tax amount is 13% of the price of housing. The parties indicate who pays the tax in the agreement.

If the owner gives an apartment worth 10 million rubles to his common-law wife, she will have to pay a tax of 1.3 million rubles. Such a high tax rate was introduced to eliminate sham transactions - tax evasion when buying and selling.

The cost of state registration of a gift agreement in Rosreestr is standard for everyone - 2,500 rubles. In addition to this, notary services are paid.

Timing of the transaction

The application to the bank must be considered within 5 days after submission. After receiving consent, preparation for the transaction and the procedure itself begin.

Registration in Rosreestr takes up to 5 working days. It will take up to 1 month to conclude a donation agreement for an apartment with a turnkey mortgage.

Is it possible to donate a mortgaged apartment or its share?

Is the procedure for donating a collateral apartment available? How to bypass the bank ban, and why is this necessary?

Since the apartment is collateral for the entire loan repayment period, banks set strict restrictions on what actions can be performed with the property. And, as a rule, such a detail as sale or donation are items that commercial organizations are required to include in the list of prohibited actions.

Is it possible to donate a mortgaged apartment?

According to current legislation, the owner of the living space purchased with the help of a housing loan is the bank client himself. And, if you follow the logic, then he can, in theory, perform any operations with his property. In practice, banks stipulate in contracts whether it is possible to give a mortgage to an apartment. The answer is usually no.

Why are banks against

Commercial organizations will not allow you to donate a share in a mortgaged apartment for one simple reason - this significantly increases their risks and reduces the value of the collateral. Therefore, any operations to alienate part of the housing are limited; you cannot simply sell, exchange or donate an object without obtaining the bank’s permission.

Is it possible to donate a share in a mortgaged apartment with the permission of the bank?

In theory, you can donate part of the housing or its entirety if the organization gives its permission, but as a rule, this is completely prohibited. And if in the case of a sale they can meet halfway, if this guarantees them the payment of all borrowed money with interest, then the donation is not justified by anything.

When can a bank authorize a donation?

In some cases, it is possible to convince bank employees to include a corresponding clause in the mortgage loan agreement. But, most often, this is only possible when the client is ready to completely repay his debt in the near future or there is already a small part left. Then the company can consider the risks as minimal.

Alternatives

Since it is difficult to carry out such a procedure, many may try to sell a share in an apartment, draw up a purchase and sale agreement and thus transfer the desired part - without applying for permission to donate housing.

In this case, the chances of receiving approval are higher, but, as already mentioned, in any case, the mandatory consent of a commercial organization for a real estate transaction will be required.

How to transfer a share in a mortgaged apartment to your wife?

AndrewLozovyi/Depositphotos

Denis Volnov, lawyer and managing partner of Sdelky.ru, answers:

The legislation allows the re-registration of property that is pledged only with the consent of the pledge holder, that is, the bank. Without the consent of the pledgee, the rights under the transaction will not be registered with Rosreestr.

How to divide an apartment if the mortgage was issued before marriage, but we paid together?

Will the apartment be joint property if the DDU and the mortgage were issued before marriage?

The lawyer of the unified city service “Assistance to the Shareholder” Zhanna Malis answers:

To re-register an apartment under a mortgage into the common property of the spouses, you just need to go to the bank (with which you have a mortgage agreement), provide the required documents (certificate of your spouse’s income) and carry out the re-registration.

The legislation allows the alienation of pledged property to third parties. That is, the borrower can sell it, donate it, or make it as a contribution to the property of a business partnership. The only limitation for such alienation will be the need to obtain the consent of the mortgagee.

The director of the secondary real estate office of Est-a-Tet, Yulia Dymova, answers:

Any transactions with a mortgaged apartment are made with the consent of the mortgagee. The question of re-registration must be addressed specifically to the bank.

With his consent, adjustments related to the loan agreement will be required.

Since the property is pledged, the spouse will have to be a co-borrower or guarantor or undertake obligations to further regulate issues in the event of non-payment of the mortgage.

• There is a second option: if the spouse does not assume obligations under the loan agreement, then the option of dividing property, drawing up a marriage contract or donating an apartment is possible.
• If a joint agreement was issued before marriage, is the apartment considered joint property?
• Will a wife receive a tax deduction if her husband bought an apartment before marriage?

Victoria Nardina, a specialist in support of real estate transactions at the Country Style Academy, answers:

In this case, half of the property can be re-registered only by donating a share. But this can only be done with the consent of the bank, since any operations to alienate shares can only be carried out with the consent of the mortgagee of the object. First, you should go to the bank where you have a mortgage and write an application for a transaction for half of the apartment.

As soon as you receive the bank’s consent, you will need to make an appointment with a notary to sign the share donation agreement. Next, you will need to include your spouse as a mortgagor in the mortgage and submit the gift agreement and mortgage for registration. After registration, each spouse will own ½ share in the apartment, but both of these shares will be pledged to the bank until the mortgage is fully paid off.

Victoria Suvorova (Pyatigorsk), a private practicing lawyer at Suvorov and Partners, answers:

Since the apartment is pledged to the bank, any transactions and re-registration of ownership occur with its consent.

Since you and your wife share property, such a transaction must go through a notary and with the mandatory approval of the bank.

After you receive consent, you need to enter into a donation or sale agreement (whichever is more convenient). The cost of notary services must be clarified at the notary chamber in your region.

1. Text prepared by Maria Gureeva
2. Do not miss:
3. All materials in the “Good Question” section
4. Can a husband give his wife his share of the mortgaged apartment?
5. How to formalize a spouse’s refusal of joint property?
6. 25 articles about real estate, marriage and divorce

The articles do not constitute legal advice. Any recommendations are the private opinion of the authors and invited experts.