Is it possible and how to donate a share in an apartment without the consent of other owners 2023

In legal practice, there are often cases when donating a share in an apartment without the consent of other owners is inevitable. Most often, the object of the gift agreement is an apartment, apartment or house. When drawing up such documents, lawyers refer to the requirements of the law.

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For anyone who is planning to donate a share in an apartment without the consent of the second owner, the information presented below will be useful. Not a single agency involved in the preparation of contracts will undertake the work without receiving refusals from all participants who have the prerogative of ownership of the object of presentation.

The rules that apply to the transfer of ownership of whole property also apply to the gift of a share. The legislation regulates all cases of paperwork and obtaining consent from owners in shared property ownership.

Lack of agreement jeopardizes the authenticity of the drafted agreement.

Is it allowed to draw up a deed of gift for a share in an apartment without the knowledge of the other owners? How to prepare papers correctly? In what cases is it permissible to draw up a deed of gift without the consent of the share owners?

What rights does the property owner have?

The Civil Code of the Russian Federation states that the transfer of ownership of a share or an entire property under a gift agreement is disinterested. The owner transfers the property prerogative without receiving anything as compensation. The execution of a gift agreement does not require the owner to report to other participants in shared ownership or to respect their privileges.

Permission to dispose of a share is required from all owners when a share in the property is sold. When selling part of the housing that is in shared ownership, the shareholders have the privilege to purchase it.

Everything about the regulations for the alienation of a share of real estate that is jointly owned can be found in Article 246 of the Civil Code of the Russian Federation. It contains detailed information about all the nuances of property disposal and transfer of property rights to property.

Only the registration of a deed of gift does not require permission, since it is free of charge.

Before going to a notary to formalize a transaction, you need to prepare a package of documents. These papers must be submitted to the registration chamber for re-registration of property rights.

  How to cancel a deed of gift for a house

In order for the registration to proceed without any hiccups, you need to collect the following package of documents:

This article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem, contact our consultant absolutely FREE!

• papers identifying the participants in the transaction;
• a certificate confirming the absence of debt for utilities;
• passport issued by the cadastral service;
• paper that confirms the authenticity of ownership of a share of real estate (deed of gift, purchase and sale contract, privatization certificate);
• BTI registration certificate for the share;
• an extract from the house register or a copy thereof;
• a certificate confirming that there is no debt for payment of the maintenance of the apartment.

Quite often, notaries ask for a certificate of absence of psychoneurological diseases and drug addiction. Driver's license holders do not require such certificates.

If one of the parties to the transaction is married, the permission of the spouse will be required to transfer ownership. In the case of a gift, the spouse confirms that there are no claims on his part.

If the gift is accepted, he agrees to enter into an agreement. Permits must be executed by a notary.

The procedure for registering a donation agreement for a share in an apartment

The next step after collecting the package of papers will be the preparation and certification of the deed of gift. To take into account all the nuances, contact a notary. The office will prepare a legally valid contract, with state registration of which there will be no problems.

It is allowed to independently draw up a contract in free written form. After drawing up the agreement, it is submitted to the registration chamber. The document can be submitted on the day it is signed or a few days later.

After submitting a package of papers at the registration chamber, a property right is assigned to the name of the donee and the corresponding document is issued.

If one of the documents is missing, the registration authorities have the prerogative to refuse the parties to the transaction to register the fact of transfer of property rights. You should be especially careful when collecting documents when donating property rights to a third party.

Nuances to consider

In 2013, a resolution was adopted according to which the deed of gift comes into force from the moment it is signed by the participants. Once the parties sign on the paper, ownership passes from the donor to the donee. That is, the person accepting the gift can dispose of the real estate as soon as he has one of the copies of the deed of gift in his hands.

Upon taking possession, the gifted person pays a state fee. The amount of tax will depend on the estimated value of the gift, which is stated in the contract.

That is why most citizens indicate in their papers the cadastral value of housing, which is several times lower than the market value. The tax rate is 13% of the total price.

The fee is not paid if the donor and the donee are related in the first place.

Do not forget about another significant feature of deeds of gift: they are not subject to termination. Such cases are considered through judicial proceedings, in the event of damage to the life or health of the donor by the donee, or the donor is declared incompetent at the time of the transaction.

The consent of the co-owners is not required, since they do not have a pre-emptive right of acquisition. When transferring part of the property, according to the law, no problems arise.

  Is it possible to revoke a deed of gift for an apartment?

Cases in which written permission to transfer a share of property is mandatory

Registration of gift documentation for a share of real estate that is in shared ownership is impossible without the consent of all owners under the following circumstances:

1. The object of donation is in common ownership, i.e. several persons have the opportunity to own it. The deed of gift is irrefutable with the consent of all owners.
2. The subject of the gift contract is the property prerogative. Sometimes there is a need for a debtor agreement. This need arises when the donor transfers ownership to the donee, as a creditor.
3. The enterprise owns objects for economic use or operational purposes. Then concluding an agreement to transfer objects in favor of a third party is impossible without the permission of the owner. Enterprises are not endowed with such rights, since they are not recognized by law as owners of real estate.
4. When an agreement is drawn up to transfer a donee's debt, the lender's permission is required. Since the identity of the debtor may have a complex meaning for the donee’s creditor, written consent from the latter will be required.
5. When, through the conclusion of a deed of gift, the debtor is released from fulfilling debt obligations, and the contract states that it is the donee who must fulfill them, the permission of the person who is the creditor will be required.
6. If the gift is owned by one of the spouses, but acquired during marriage, there must be documentary evidence that the husband or wife has no claims to the drawing up of the agreement.

If housing in shared ownership was inherited before marriage, the consent of the spouse is not required. However, this fact must be indicated when submitting papers for registration and have official confirmation.

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Donation of a share in an apartment without the consent of other owners - in 2023, Civil Code of the Russian Federation

Donation is a fairly common civil law transaction. Very often, the object of a gift agreement is an apartment. When concluding such a transaction, it is necessary to take into account the requirements of current legislation.

Very often, when concluding a gift agreement, the consent of other owners is required if the property is an object of common ownership. The legislation provides for cases and procedures for obtaining the consent of other property owners. Without such consent, the contract may be declared invalid.

Is it possible to donate a share in an apartment without the consent of other owners? When and how can such an agreement be concluded?

When to have approval

Current legislation clearly provides for all those cases when written consent of other co-owners is required.

In particular, written consent must be obtained in the following cases:

• If the subject of the gift agreement belongs to several persons, i.e. is an object of common ownership, then the agreement can be concluded only with the consent of the co-owners.
• The object of the gift agreement may be property rights. Sometimes it may be necessary to obtain the debtor's consent. This is especially true in cases where the identity of the donor, as a creditor, is of great importance for the debtor.
• An enterprise that has been provided with certain property for the purpose of economic management or operational management may enter into a donation agreement and donate this property to a third party only with the consent of the owner. Such enterprises are not given the opportunity to fully use and dispose of the property assigned to them, since they are not considered the owners of this property.
• If this agreement is concluded for the purpose of transferring the debt of the donee, then it is necessary to obtain the consent of the creditor. This transaction cannot be concluded without the written consent of the donee’s creditor, since the identity of the debtor may be of special importance to him.
• If the debtor is released from fulfilling certain obligations, but under the terms of the contract these obligations must be fulfilled by him personally, then in this case the consent of the creditor will be required.

What rights do property owners have?

The current legal regulation provides not only for the procedure for acquiring real estate, but also for the rights and obligations of owners of such property. In particular, each property owner is endowed with certain rights and opportunities. The right to dispose of one’s property is one of the key rights of every owner.

And one of the ways to dispose of property is the possibility of concluding a gift agreement. This transaction is free of charge.

This means that ownership of the donor's property passes to the donee free of charge, and the donor receives nothing in return. It is this feature that distinguishes a gift agreement from other civil transactions (for example, from a purchase and sale agreement).

The object of the gift agreement can also be a share in the apartment. In accordance with the current legal regulation, the owner of a share in an apartment must obtain the written consent of other owners before concluding a purchase and sale agreement for a share in an apartment and transferring it to a third party.

But this rule does not apply to the right to conclude a gift agreement. In this case, the agreement can be concluded without notice and without the consent of other property owners. This is primarily due to the gratuitous nature of the transaction, and the owner of the share can freely give it to anyone.

In practice, very often owners enter into a share donation agreement instead of a purchase and sale agreement, thereby trying not to obtain the consent of other owners. But when concluding such an agreement, it is necessary to remember that, in accordance with the current legal regulations, such an agreement is considered fraudulent.

Download a sample of a spouse’s consent to donate an apartment

Accordingly, if one of the apartment owners files a statement of claim with the court in order to declare the transaction invalid and prove the fact that it is fraudulent, the court will decide to annul such a transaction. That is why, when concluding such agreements, it is advisable to comply with all legal requirements in order to avoid possible problems and lengthy legal proceedings in the future.

What does the Civil Code of the Russian Federation say about donating a share in an apartment without the consent of other owners

The Civil Code of the Russian Federation carefully regulates the procedure and rules for the alienation of shares in common property. These rules also apply to transactions related to the alienation of a share in an apartment. In particular, Article 246 of the Civil Code of the Russian Federation is devoted to the disposal of shares in common property.

This article states that the disposal of common property must be carried out on the basis of an agreement of all owners. For example, if an apartment that is a common property is being sold, then in this case the consent of all owners is required. They all must sign the purchase and sale agreement for the apartment.

Article 246. Disposal of property in shared ownership

Of course, the agreement can also be signed by one of them, but in this case a power of attorney is required. As for the disposal of shares in common property, the current legal regulation states that the owner of the share can freely dispose of it, but it is also necessary to take into account some mandatory legal requirements.

In particular, the share owner can carry out the following actions with his share:

• sell;
• give;
• bequeath;
• lay;
• dispose of in a different way.

But when alienating a share for compensation, certain legal requirements must be met. Alienation is considered compensated if the owner receives something in return (for example, money). In particular, if the alienation is for compensation, then before concluding the relevant transaction, the owner of the share must send a notice to other property owners.

The donation is a gratuitous transaction, and accordingly, there is no need to send a written notice to other owners when concluding an agreement to donate a share of the apartment.

Transaction rules

The current legal regulation provides for a certain procedure for concluding and processing transactions. A donation agreement for a share in an apartment is no exception. Before concluding this agreement, it is necessary to go through a certain stage of preparation, which includes collecting the necessary documents.

Without all the necessary documents, the registering state body will decide to refuse state registration of the transaction and the rights arising from it. Accordingly, the collection of the necessary documents must be taken very seriously.

The required documents include:

• a certificate confirming that the donor has no rent debts (if there is such a debt, the applicant will be denied state registration);
• cadastral passport of real estate;
• title documents and grounds for the emergence of the donor's property rights (for example, a sales contract or a will);
• a copy of the house register;
• technical passport of the donor's share;
• a certificate confirming the absence of debts on utility bills.

Download a sample certificate of absence of debt on utility bills

In some cases, the notary may require the presentation of additional documents. For example, a notary may require the presentation of a certificate from a drug treatment and psychoneurological dispensary. But if the donor has a driver’s license, such a certificate will not be needed.

If the donor is in a registered marriage, then the written consent of the spouse will also be required, unless, of course, the property was acquired during their joint married life.

Spousal consent is not required if the property was inherited or received as a gift.

Consent must be certified by a notary: a document drawn up in simple written form cannot be used.

After collecting all the necessary documents, you can proceed to the process of concluding and processing the transaction. The best option for concluding such a transaction is notarization.

Each notary has developed agreement templates that are drawn up in accordance with all legal requirements. In addition, notarization of the agreement will create additional guarantees for both the donor and the donee.

Of course, the parties can draw up an agreement in simple written form and submit it for state registration. But in this case, you must first carefully familiarize yourself with the requirements of the current legislation, and only after that draw up the text of the agreement.

After drawing up the text of the agreement, it must be presented to the registration authority for state registration. Moreover, this can be done either on the day of signing the contract or after a certain time.

What to pay attention to

Donating a share in an apartment without the consent of other owners has a number of features that must be taken into account when concluding this agreement.

After certain legislative changes that were implemented in 2013, the donation is considered completed after the signing of the relevant agreement.

Accordingly, the donee can freely dispose of the received property immediately after signing the agreement.

That is why lawyers recommend not to indicate the value of the property in the text of the agreement or to indicate an amount that is significantly lower than the market value of the donated property (for example, the cadastral value). The amount of tax to be paid is 13% of the value of the property received as a gift.

If the agreement was concluded between persons who, in accordance with the current legal regulation, are close relatives, then the donee is exempt from the obligation to pay tax

When concluding an agreement to donate a share of an apartment, it is also necessary to take into account one more feature: such agreements, as a rule, are very difficult to terminate.

In particular, the court accepts for consideration a claim for termination of a gift agreement only in the case where the donee has committed actions that caused harm to the health or life of the donor, or when the transaction was concluded in a state of error. The last fact is quite difficult to prove.

From the above we can conclude that drawing up a donation agreement for a share of an apartment will not be difficult. But when concluding it, it is necessary to take into account and comply with the current legal regulation.

If mandatory legal requirements are not met, the registering authority may refuse to register the donee's property rights. Sometimes failure to comply with these requirements may become the basis for filing a claim in court in order to invalidate the transaction.

The contract for the donation of a room must have a basis of non-payment and gratuitousness.

You can find out what tax you will need to pay when donating an apartment from this article.

You can download the agreement for donating a share of an apartment to a minor child using the link.

That is why it is advisable to use the services of a qualified and experienced specialist to draw up the text of the agreement. Only a qualified lawyer can draft an agreement that fully complies with all legal requirements. In this case, the donor and recipient will be able to avoid possible litigation.

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

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Donating a share in an apartment: how is a deed of gift for a part of the housing completed?

Today you can donate not only the entire apartment, but also its share. This transaction can be carried out through a notary or through government agencies. We’ll talk about how best to donate a share in an apartment in this article.

Who can be selected as the donee?

• You can donate a share of an apartment under the same conditions as donating it entirely, that is, to anyone.
• The best option is to give it to close relatives, because there is no need to pay tax.
• You can donate part of your apartment to a complete stranger, but in this case tax must be paid.
• The law prohibits donation in the following situations:

1. The donor has not reached the age of 14.

2. Obtaining an apartment under a state program that prohibits the donation of shares.
3. The donee is a civil servant or municipal services employee. His line of work does not allow him to receive housing as a gift. However, in some situations, giving to them is still possible.

   At the same time, it is necessary to indicate in the deed of gift that the position held does not matter here.

Collection of documents

1. Passport of the donor and recipient. If the donee is under 14 years of age, his birth certificate and the guardian’s passport will be required. If the recipient is between 14 and 18 years old, in addition to his or her passport, you will also need the passport of one of the parents.
2. When registering housing in the name of a husband or wife, when it belongs to jointly acquired property, consent to the donation is required from the second spouse, certified by a notary.
3. If a trustee is involved in the transaction instead of the donor or donee, he must have the original power of attorney certified by a notary and its copy. It is noteworthy that a power of attorney cannot be issued by the donee to the donor and vice versa. They cannot be present in one person.
4. Technical documents for housing.
5. A document to confirm a close relationship (marriage certificate, etc.).
6. A document confirming the donor's ownership of the home or part thereof.
7. An extract from the house register indicating all the people registered in the apartment.
8. Receipt of payment of state duty.

Preparation of the contract

Today, a mandatory requirement in most cases is to have the gift agreement certified by a notary. This is mentioned in Federal Law No. 218-FZ (Clause 1, Article 42). Only a deed of gift certified by a notary can be transferred to the Registration Chamber or MFC.

The agreement can be drawn up independently, and then taken to a notary’s office and certified, or the entire transaction can be executed by a notary. The latter option will be safer, but also more expensive.

Certification by a notary will protect you in case someone wants to challenge the deal. It will act as a guarantor of the legality of the transaction.

When drawing up a contract yourself, there may be errors. It often happens that a person downloads an inappropriate form from the Internet and fills it out.

But in his situation it was necessary to draw up the contract in a completely different way. It is better to seek help from a qualified lawyer or notary.

This way you will protect yourself from the suspension of the transaction, which can happen if there is even one spelling error in the contract.

Note: The document should be signed not when it is drawn up, but when it is certified by a notary. If you submit an uncertified document, it is better to sign it at the registration chamber or MFC.

The number of copies of the document depends on the number of persons participating in the transaction. If there are two of them, you will need another one to submit to the MFC (in general, three copies will be required).

What should the deed of gift contain?

When drawing up a deed of gift for a share of housing, it indicates:

1. The very share that will be donated, in the exact designation. The share can be transferred to the donee in whole or in part.
2. Data from the passports of both parties.
3. The exact address of the apartment that includes the share involved in the transaction.
4. Exact quadrature donated. It is calculated from the total area of ​​the housing.
5. Floor location of the apartment.
6. Number of floors of the house.
7. Estimated value of the share (if necessary).

Registration

The agreement is signed in front of the registrar, if it has not been certified by a notary. The registration officer will issue two application forms, which must also be signed by both parties.

Next, the participants in the transaction leave the entire package of documents to the employee. The originals also remain, with the exception of passports.

The employee issues a receipt stating that he accepted the documents indicating the date when the parties will be able to pick up the documents, which will already indicate the registration. The registration process lasts about 10 days.

On the specified date, you can already pick up a new certificate of ownership and other documents. To do this, you must have this receipt and passports with you.

If the transaction is executed by a notary, the documents must be submitted to the registration authorities by the notary himself. Clients pick up ready-made documents.

Self-registration

To independently draw up a gift agreement, you must do the following:

1. Draw up a deed of gift.
2. Appear at the registration office to register.

If the age of the donee is less than 14 years, all manipulations are performed by the guardian instead. If he is over 14 years old but under 18 years old, only his guardian can sign the agreement.

Taxes

Quite pleasant for recipients and donors is the fact that if they are close relatives, payment of tax (personal income tax) when making a gift is not necessary.

Other cases imply the need to pay a tax in the amount of 13% of the value of the property received as a gift. For foreigners this percentage is 30%.

Close relatives include:

• children and parents;
• grandparents and grandchildren;
• brothers and sisters.

The recipient must pay taxes and other expenses when making a gift.

Features of distribution of shares

For the most part, the deed of gift does not indicate a specific share of housing. It contains only information about the area of ​​the apartment and its main characteristics.

If a share of an apartment is given as a gift to a close relative, the donor should not warn other shareholders about this.

It is also not necessary to allocate the alienable share in the apartment in kind. But this rule applies only if the apartment belongs to the owners on the basis of shared ownership.

When the property is joint, it is mandatory to allocate shares of the apartment (Article 252 of the Civil Code of the Russian Federation). The property of each shareholder is determined by concluding an agreement between them.

If it is not proven that one of the shareholders bears a larger share of the property, it will be divided equally.

What rights and responsibilities do the parties have?

Property can only be given with the consent of the recipient. If he does not want to receive a share of housing as a gift, refusal is possible. There is no need to explain the reasons.

Donation is a gratuitous transaction. Nothing passes to the donor from the donee. If the latter promises payment to the donor, it cannot be included in the gift agreement, otherwise it will lose its legal force.

Cancellation of a deed of gift is a very complex procedure. In most cases this is not possible. After completion of the transaction, the donee receives the status of a full owner of a share of the housing, and the donor is deprived of all rights to it.

Such agreements must be treated with the utmost care in order to draw them up correctly. If the donee passes away before the deed of gift comes into force, the rights to the share will pass to his heirs.

Termination

1. The person who received the gift made an attempt on the health/life of the donor/his family.
2. The donor died due to the fault of the donee.
3. When signing the documents, the donor was in an insane state (under pressure or threat; poisonous, psychotropic, narcotic or alcoholic substances).
4. Any clause in the deed of gift violates current legislation.
5. The deal was declared fictitious by the court.

The deed of gift can only be contested through court proceedings. If the court rules in favor of the donor, the property will be returned to him in full.

Special conditions

There are situations when special conditions are prescribed in the gift agreement. The donor has the right to indicate that he can initially live on the territory of the share of housing donated to him.

It happens that the donor does not want to live in an apartment provided as a gift, but claims the right to be registered in it. This must also be indicated in the document.

There are also cases when the donor wants to live on the territory of the apartment share given to him for a long time and even until his death. The deed of gift must contain all this.

What functions does a notary perform?

The notary draws up deeds of gift, which must then be signed by both parties to the transaction. They must indicate the value of the share in the apartment, which the donor transfers as a gift to the recipient.

1. If the value is determined to be lower than it actually is, other relatives may cancel the transaction.
2. The notary will not allow the parties to ignore this issue due to the fact that the amount of the state duty and payment for the services of the notary office will depend on the indicated cost.
3. You can also obtain the consent of the husband or wife to transfer a share of jointly acquired real estate as a gift from a notary.

How to draw up a power of attorney?

If the owner does not have the opportunity to take part in the execution of the transaction, you can draw up a power of attorney under which another person can do this.

A power of attorney can be of the following types:

1. One-time - giving the right to perform the operation once.
2. Special - the authorized person has the right to perform the operation several times.
3. General - allows the trustee to fully carry out the donation.

Having decided on the type of power of attorney, the donor goes to the notary, having with him his passport and the passport of the authorized person, the tax number of the donor obtained from the tax service and a questionnaire indicating the passport details of the authorized person.

After the notary prepares the power of attorney, the donor signs it.

Conclusion

Giving a share of an apartment as a gift is much easier than selling or bequeathing. This is especially beneficial when registering a deed of gift for close relatives, due to the absence of the need to pay tax.

FAQ

• Question
• — What to do with debt for utilities?
• Answer

— The debt for utility services does not relate to the apartment itself, but to the person who lived in it when this debt arose.

Therefore, donation can be made even if there is a debt for public services. If the debt exceeds the maximum standards, the housing will be seized, and it will be impossible to sell or donate it.

If the donee agrees to pay the debt himself, this should be indicated in the deed of gift.

1. Question
2. — Can part of the share be donated?
3. Answer

— Each shareholder can dispose of his property as he wants, including donating part of the share. You can donate 5 percent of the share, if necessary, register the person as the owner.

• Question
• — Do you need consent from other owners?
• Answer

— The Civil Code states that each owner must obtain consent from the others if he intends to carry out any transaction with his share. But this does not apply to gratuitous transactions (and therefore to donations). You can donate a share without the consent of other shareholders, but when selling you cannot do without it.

1. Question
2. — Is it possible to give a share to several people?
3. Answer

— A share of an apartment can be gifted to two or more persons. In this case, the gift document indicates certain shares for each recipient. If the shares are not allocated, they will be divided equally.

• Question
• — What is the minimum share that can be donated?
• Answer

— For the purpose of registration, any share can be donated. And for one person to live, at least 6 square meters must be provided.

1. Question
2. — How to donate a privatized apartment?
3. Answer

— A privatized apartment has one full owner. For this reason, the consent of other persons for transactions involving this apartment is not required for him. This is a more convenient situation than when the apartment has many owners. Also, a share in a privatized apartment can be donated.

Video on the topic

Donation of a share without the consent of other owners

Is it legal to give a share in an apartment without the consent of the second owner? This question worries those who have problems when preparing a deed of gift.

Today, there are strict rules for donating real estate that is in shared or joint ownership.

Depending on the specific situation, the consent of other owners may be necessary, but this is not always required.

Basic provisions

Gifting is one of the most sought after legal real estate transactions. The difference between this procedure and other real estate transactions is that it is free of charge. The recipient of the gift must not perform material actions in relation to the donor. You can dispose of a share of an apartment by having a separate certificate for your share or by obtaining consent to donate from the second owner.

If a share is allocated and there is a record of this in the state register, then the presence of such a certificate allows you not to inform the second or several owners of the remaining shares.

Unlike a purchase/sale, it is not necessary to obtain a written refusal to purchase a donated share. It is not necessary to notify the owners of the remaining parts of the apartment about your intentions.

It is this rule that makes the gift transaction the most popular and independent of the opinions of third parties.

There are often situations when neighbors sabotage the sale of someone else's share, do not give consent and do not purchase the part put up for sale. Therefore, the sale can be camouflaged as a donation, but this fact is prosecuted by law. A fictitious donation, if the circumstances are proven, will be challenged and canceled by the court, and the parties will receive an administrative penalty.

According to Article 246 of the Civil Code of the Russian Federation, the rules for disposing of your shares and the interests of a third party in this situation are established.

If a family has a common property certificate issued in the name of one person, then it is necessary to obtain consent to donate part of the apartment.

A participant in shared ownership has the right to dispose only of his share of the property, including donating it to any person. The donation is made in favor of a relative or a stranger, and it is necessary to obtain the consent of the recipient.

In other words, ownership of common or shared property always requires the consent of the remaining members, except for the procedure of donation.

A free transaction does not bring profit to the owner, so there is no need to ask permission or offer your part to other interested parties.

Consent will only be required from the spouse if we are talking about jointly acquired property. If the legal spouse is against donation, you will need to allocate and re-register your half and donate it to the chosen person.

The text of the agreement is drawn up in any form and signed by the parties to the transaction.

The agreement can be notarized; the notary will check the draft agreement and make recommendations on the text and format of the document.

The agreement drawn up by the donor and the recipient is submitted to Rosreestr or MFC, at the choice of the participants in the transaction. If the gift concerns members of the same family, then you will not need to pay property tax. For outsiders accepting property as a gift, you will have to cover the tax fee.

According to the law, any period can pass between signing the contract and applying for registration. If the donor dies during the specified period, then the property passes into the estate.

The procedure for registering a deed of gift

Registration of a deed of gift for a share of an apartment without obtaining the consent of other owners in Rosreestr requires the provision of the agreement itself and accompanying documents. The package of documents will allow registrars to check the purity of the transaction, trace the history of the apartment and the share transferred as a gift to another person.

The standard kit includes the following data:

• passports of participants and a standard application;
• document establishing ownership;
• cadastral passport and extract from the BTI;
• receipt for payment of the state fee;
• certificate of family composition, that is, information about registered citizens.

The party receiving the property has the opportunity to find out the necessary data on the apartment. It is enough to request and study an extract from the Unified State Register of Real Estate to obtain extensive and valid data on the apartment.

In addition to technical information, you can find out the owners and the presence of encumbrances and arrests. Having received a certificate about the registered persons on the alienated share of the apartment, the recipient independently makes a decision on the discharge of these persons.

You can transfer an apartment with registered persons; this is not prohibited by law.

Moreover, when drawing up an agreement, it is possible to provide for additional non-material conditions. For example, lifelong residence of the donor or the person indicated by him in the transferred living space.

Only after re-registration in Rosreestr can we say that the procedure is completed and the donation is final.

The package of documents provided must necessarily include the notarized consent of the spouse if we are talking about jointly acquired property.

Sometimes, when notarizing a gift agreement, a specialist requires proof of the donor’s legal capacity from a medical institution.

Having such a certificate in your file, it will be much easier to win a possible legal dispute between interested parties. If the donor can provide a driver's license, then this eliminates questions from the notary.

The donor can be an adult and capable citizen. If the life situation requires the participation of special owners, then it is necessary to obtain permission from the guardianship authorities. Donating a share without the consent of neighbors should be done in compliance with formalities, since disagreements may subsequently arise between other applicants.

Rosreestr checks the package of documents and re-registers ownership of the property. The new owner receives an extract from the Unified State Register and a certificate, thereby assuming all the rights and obligations of the owner.

The recipient may change his mind and withdraw his consent within three years after the conclusion of the transaction. For termination, it is not necessary to notify the donor and provide the reasons.

This can be done by presenting compelling circumstances to the court: fraud, blackmail or extortion, or other punishable actions. If there is no evidence, then it is almost impossible to challenge the donation. Therefore, when concluding a transaction, the notary explains to the donor what he is doing and what consequences of the step will follow after registration.

Before contacting Rosreestr or MFC, the contract can be terminated unilaterally without explanation. You can only give your property as a gift; other grounds of ownership do not give you the opportunity to dispose of your property.

Features of the contract

You can use the gift received immediately after signing the agreement; this is permitted by law. The text of the contract must include a clause on the price of the object; it is recommended to indicate the cadastral value of shared ownership. This is important when resolving a tax issue, since the amount of deductions will be established under the agreement. It is not necessary to own a share for 5 years in order to avoid tax deductions. This is a free transaction; it does not require compliance with tax deadlines, as with a purchase/sale.

Donation often becomes preferable when relatives have property disputes or claims to an apartment. Re-registration of your share during the lifetime of elderly relatives removes controversial issues during inheritance. Moreover, the state is loyal to related transactions.

It is in order to avoid claims from the tax service that it is necessary to provide evidence of the relationship of the parties to the transaction.

It is possible to donate your share in an apartment without the consent of the second owner if each owner has an independent certificate of ownership of their share of the living space.

We draw up an apartment donation agreement

Is it possible to donate your share of an apartment without the consent of the owners of other shares?

It is impossible to donate part of an apartment that is jointly owned without the consent of the other owners. In most cases, the alienation of an apartment is associated with the need to make a joint decision by all its owners, which is established by law in Part 1 of Art. 253 Civil Code of the Russian Federation.

Here there is what is commonly called a conflict - on the one hand, the law allows, when making a gift, not to take into account the priority right of other owners to buy out the share. But they may not agree to donate the share, and the situation will reach a dead end.  

In this case, there are few options - either negotiate or somehow prove that other owners have lost or illegally acquired rights to their shares. The loss of rights to a residential premises or apartment is considered by the court, and this is the subject of a special discussion.

The notice is sent to the place of the last known address in the form of a registered letter with return receipt requested. 

Donation of part of an apartment by spouses

There are several other options when donating part of an apartment does not require the consent of the other owners. This concerns the area of ​​marital relations - family law affects the property responsibilities of spouses towards each other. The second party (spouse) may have equal rights to a share in the apartment, but in some cases this rule does not work.  

The following situations are identified when the spouse’s consent to donate an apartment or part of an apartment is not required:

• the property was received by one of the spouses as a result of a gift;
• the apartment was given to one of the spouses according to the will; 
• the apartment was purchased by one of the spouses before marriage;
• the property was previously divided by a court decision or by mutual agreement - this situation should be resolved only with a lawyer who must study all the details of the court decision or property division agreement. 

The allocation of a share in the apartment must be formalized before the donation process begins, since the donation agreement indicates not only the address of the object, but also its description indicating the cost. Without determining the share, it is impossible to find out its value.

Permission from other owners to alienate a share of the apartment 

It is very important, and the donor must understand this, that many situations may arise when his seemingly indisputable right to donate is under threat.

If part of the apartment belongs to a minor, then you will need to obtain not only permission from the person representing the rights of the minor, but also from the guardianship authorities.

In a matrimonial property relationship, there is a joint investment of funds in a property. And this is a completely legitimate reason to claim rights to part of the apartment or shares in it.  

The registration of a deed of gift for real estate may be suspended for one more reason - this is the problem of dividing shares, which arises specifically in apartments.

The fact is that a premises (share) is recognized as real estate if it has signs of full-fledged housing.

Any of the owners can demand compensation on the grounds that, for example, the toilet will be shared with the new owner. 

We remind you that the permission received from the co-owners to donate part of the apartment must be properly executed! This is a document certified by a notary, which must be signed personally by each owner, in the presence of a notary.