What is more profitable to give or sell a share in an apartment, what is the best way to register a share in an apartment: by gift or sale

Within the framework of the civil code, the conclusion of a purchase and sale agreement (usually real estate) should be understood as the transfer of property to another person for a certain amount of money. In turn, the fact of donation of real estate is considered to be its transfer by one party into gratuitous possession and ownership of the second party. The question of which is more profitable: a purchase and sale agreement or a deed of gift is asked by many property owners when planning to transfer ownership of it to their relatives or loved ones. It is difficult to give a definite answer, because... it all depends on many nuances. Let's look at the main ones.

Disadvantages of an apartment purchase and sale transaction

If the purchase and sale of housing is completed to a loved one (relative), the seller will continue to be able to live in this territory, however, if it is sold by the new owner, he will find himself on the street. To understand which procedure is better, a donation for an apartment or a purchase and sale, you should know the main features of the donation procedure. Ukraine and Russia have similar legislative norms regarding this.

Advantages of donating an apartment over a purchase and sale agreement

There is nothing difficult in the procedure for registering property under a gift agreement, unlike a purchase and sale transaction. The documents required to formalize the contract are minimal.

By giving preference to donation as a method of transferring an apartment or its share to relatives, you are exempt from taxation, which eliminates the need for additional expenses. In addition, real estate received as a gift is considered the sole property of the donee, and in case of divorce is not subject to division.

The process of drawing up a residential real estate donation agreement

When concluding a gift agreement, two parties to the transaction must be present: the donor of the apartment and the recipient. A gift agreement signed by the two parties to the transaction is not subject to mandatory state registration, but it is advisable to have it certified by a notary, although it can also be simply drawn up in ordinary written form.
After the two parties to the transaction sign the agreement, it will be necessary to collect the appropriate package of necessary documents, which the donor and recipient will need to take to Rosreestr to register the transfer of ownership.

Documents required for registration of deed of gift

If real estate is given to a child under 14 years of age, then the permission of the guardian or parent will be required for him to accept the property as a gift. In the case of notarized confirmation of contracts, such permission is also required.

When drawing up a deed of gift, the notary checks for the absence of prohibitions on the seizure or alienation of the apartment, as well as for the absence of mortgage encumbrances and tax liens. If the property is seized, the deed of gift will be refused. If there are mortgage or tax encumbrances, the transaction can only be executed with the consent of the mortgage holder and the tax authority.

Features of drawing up a gift agreement for an apartment

If an apartment is given to a close relative, specifically to a spouse, children, grandfather or grandmother, then neither the donor nor the recipient will have to pay tax. It is only necessary to take into account that in this case, a gift deed for real estate, on which tax is not levied, must be supported by a document confirming the blood relationship between the parties to the transaction.

In the case of drawing up a contract for the sale and purchase of an apartment, the seller will need to pay income tax in the form of personal income tax, since the transfer of the right to a property, carried out through a sale, implies making a profit.

In situations where the property being donated is jointly owned by spouses or relatives, the consent of all participants in shared ownership is required for the donation. Consent for donation must be notarized.

Donation of a share of real estate

Deed of gift for real estate: taxes and termination

Real estate accepted as a gift is subject to income tax. In accordance with the Tax Code, when inheriting or donating real estate, the value of property that is inherited or gifted to family members of the first line of kinship is not taxed, that is, husband, wife, children and parents are exempt from the need to pay a special tax.

When drawing up a real estate donation agreement, a tax payment receipt is not submitted to the notary and the tax payment is not verified by the notary.

A donation agreement for a property can be terminated in court in the following cases: if the donee has committed criminal acts against the donor or members of the donor’s family; if the donee dies before the donor.

As you can understand from the above, donating an apartment is a completely simple legal process if you understand the basics of legislation that relate to the execution and registration of a gift transaction with a government agency. As for what is better: a purchase and sale transaction or a gift transaction, you need to decide based on the specific situation.

If the agreement is concluded free of charge between relatives of the first degree of kinship, then it is more profitable to draw up a deed of gift, since accepting an apartment as a gift (donate) in this case is much more convenient than buying (selling).

Whatever option you prefer, it is still best to consult with a qualified lawyer before executing any transaction.

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What is better – donating an apartment or bequeathing it?

Last update: 03/17/2022

Question:

I am 60 years old and I want to “sign off” my apartment to a good person. How should I do this better - through a gift or through a will? Which is more profitable and why?

Answer:

In order to donate or bequeath your apartment to anyone, it, of course, must belong to the owner by right of ownership , and this right must be registered with Rosreestr.

Moreover, the property must be sole .

If the apartment was previously acquired (purchased) during the marriage of the donor/testator, then this is already his joint property with his wife (even if they subsequently divorced), and he does not have the right to individually dispose of the apartment.

give and bequeath your property to both relatives and strangers. What is better and more profitable – donating or bequeathing an apartment? Which option should I choose? Let's look at the pros and cons of both.

How to evaluate your own apartment for sale? Evaluation factors and price calculation method.

The main difference between these options is that, according to a gift, ownership of the apartment is transferred immediately (you only need to register the transfer of rights), and according to a will , after a long time (years, or even decades), and only after completing a number of necessary procedures for entering into inheritance rights (notarial acts, certificates from the BTI and the Cadastral Chamber, registration of rights).

At the same time, the will can be challenged by the relatives of the deceased, and until the legal disputes are settled, the heir will not be able to dispose of the apartment.

In addition, the will can be rewritten by the testator at any time, or even canceled by him.

And it is extremely difficult to cancel a donation , and only in exceptional cases expressly provided for by law (more on this in the link below).

What are the types of ownership of an apartment - see the Glossary at the link.

The will must be certified by a notary, and the Donation Agreement can be concluded either in simple written form or in notarial form (at the request of the parties). To draw up a will, only the testator himself (and a notary) is needed, and to sign the Donation Agreement , both parties to the agreement are needed - the donor and the donee (and it is possible without a notary).

The costs of drawing up a will with a notary are minimal and insignificant, and the costs of certification of the Donation Agreement (in the case of a notary) will be many times higher, because The state duty here will be calculated from the cadastral valuation of the apartment. The costs of state registration of the transfer of ownership are the same in both cases.

on donating an apartment , and the owner is free to donate his property to anyone and at any time without any additional conditions.

A will has some legal restrictions - in particular, the so-called obligatory share in the inheritance , which is received by disabled relatives and dependents of the testator, regardless of the will.

When donating an apartment , the owner should pay special attention to the issue of his own future residence in this apartment, since if this condition is not expressly stated in the Donation Agreement, then along with the right of ownership , the donor also loses the right to use the apartment. But practice shows that not all close people know how to remain grateful, and often such donors after a year or two end up on the street or somewhere in a remote, God-forsaken village.

A sample Agreement for the donation of an apartment with the condition of the donor living in it can be downloaded here.

Gift and bequest taxes

When donating an apartment, only close relatives of the donor avoid tax (more on this in the link below). Distant relatives and strangers, to whom an apartment can also be gifted, are required to pay a tax of 13% (personal income tax) on the cadastral value of real estate.

When bequeathing an apartment , the heirs do not pay any tax (regardless of the degree of relationship).

For pensioners, the tax deduction when buying an apartment has some features (see link).

When is the best time to donate an apartment?

From the owner’s point of view, it is more profitable to give an apartment as a gift when you want to make a loved one happy by freeing him from the red tape of accepting an inheritance and disputes with other potential heirs. Moreover, to make you happy now, and not in the future. For the luckiest person, this is an ideal option for getting an apartment.

True, if this lucky person is not a close relative of the donor, then he will have to fork out money to the state for receiving such a gift, and pay a serious tax. In this case, it makes sense to ask the lucky person what is preferable for him - to receive property now, but with tax, or later, but without tax and with possible disputes about inheritance.

When donating an apartment, you must also remember the risk for the donor himself . Immediately after signing the Donation Agreement, the donor is deprived of the right of ownership of the apartment, and, unless otherwise specified in the agreement, then the right to reside in it. And here the following problems may arise:

• The joy of a loved one may fade over time, and the relationship with their benefactor may deteriorate, and then the new owner has every right to kick the benefactor out onto the street from an apartment that no longer belongs to him;
• A loved one may turn out to be quite good-natured and grateful, but circumstances force him to sell the apartment (for example, for debts), and the donor-benefactor finds himself on the street again;
• If after some time the donor sees that he got carried away and gave the apartment to the wrong person, then it is extremely difficult to cancel the Donation Agreement (for more information on this, see the link below), unlike a will.

Who are “third parties” in real estate transactions? What rights do they have? Which of them can challenge the completed transaction?

When is it more profitable to bequeath an apartment?

• to bequeath an apartment in the case when we are talking about a distant relative or a stranger, who, when donating, would be forced to pay a significant amount in the form of tax (13%).
• A will is more beneficial for the testator even in cases where there are doubts about the trustworthiness of the heirs - a will, after all, can always be rewritten or even canceled if something happens.
• When making a will, the testator himself does not face any risks, except that some “close people” will eagerly await the benefactor’s transition to another world. The heirs themselves under the will will have to come to terms with the fact that:

• rewritten or revoked at any time during the life of the testator;
• The will can be contested by other heirs after it is opened (i.e. comes into force after the death of the testator);
• The will may be invalid (more on this in the link below);
• Ownership of an apartment can be obtained no earlier than 6 months after the death of the testator;
• Ownership rights may be limited to a mandatory share (more on this in the link below).

You can read more about the Apartment Donation Agreement and the nuances of the donation transaction (including a list of close relatives and cancellation of the donation) in the Glossary at the link.

More details about the conditions for inheriting an apartment (including the cancellation and invalidity of a will) are also described in the Glossary at the link.

Still have questions? Are you plagued by vague doubts? A lawyer can help you! You can order a consultation with a specialized real estate lawyer or complete transaction support HERE.

1. "SECRETS OF A REALTOR":
2. The rules for preparing and conducting an apartment purchase and sale transaction are on the interactive map STEP-BY-STEP INSTRUCTIONS (will open in a pop-up window).

Selling a donated apartment, a share in it or a house: after what time and how to sell, necessary documents

A gift agreement for things, including real estate, is a fairly common transaction. In some cases, after a donation, there is a subsequent sale of apartments, houses, or shares received as a gift.

Such a sale takes time, because if the alienation is carried out immediately, then personal income tax must be paid. Let's look at this issue in more detail.

Is it possible to sell a donated apartment, a share in it, a house?

The gift agreement is regulated by part two of the Civil Code of the Russian Federation. This is an agreement that implies the transfer of one or another property free of charge, as well as:

• granting property rights;
• release from property obligations.

The parties to this agreement are the donor and the donee. These citizens can be either relatives or strangers to each other. It is worth noting that the parties to the agreement can be legal entities or state and municipal entities.

The subject of a gift agreement most often becomes real estate, including houses, apartments, shares in them, etc.

The peculiarity of the agreement is that it, like the re-registration of ownership of an item, must be registered.

Accordingly, almost immediately after an entry appears in the unified state register of rights to real estate that the donee has become the full owner, he has the right to alienate his property (including in the form of concluding a purchase and sale agreement) . All this is possible even during the life of the donor!

Can the donee sell an apartment without the permission of the donor?

That is why the donee has every right to sell the donated real estate without the permission of the donor.

The situation is different in situations where the donor transferred, for example, a share in an apartment. In this situation, the donor and donee have the right of common shared ownership.

This assumes that when selling a share, the new owner must respect the right of first refusal and offer to buy the property to the second participant in shared ownership.

If he refuses to purchase the property, then the citizen has the right to sell his share to any outsider.

Sale of an apartment after donation less than 5 or 3 years

Tax legislation is periodically changed and supplemented with new legal norms. In particular, this applies to paying tax after registering the sale of a donated apartment.

Previously, there were rules according to which the seller must deposit money into the state treasury in the amount of 13% of the amount specified in the contract.

This amount did not depend on the cadastral value; many people simply underestimated the price of the purchase and sale agreement.

After 2016, new tax rules were introduced, which established that if a citizen owns an item for three to five years and the property was transferred to them after January 1, 2016, then they are exempt from paying tax.

The situation is different in situations where there was a gift agreement between relatives (for example, son, mother, father). In this situation, the time frame remains the same at three years.

In order not to pay tax on sales using a five-year period, the following conditions must be met:

• if there was a contract of gift or purchase and sale and the citizens are not close relatives;
• registration of ownership took place after January 1, 2016;
• alienation occurs after the new legislative norms have entered into full legal force.

Thus, a period of 3 years or 5 years is of fundamental importance when determining the issue of taxation in view of the sale of real estate owned.

The procedure for registering a purchase and sale after donating an apartment

The contract for the alienation of real estate must be concluded in writing. Failure to comply with this form will render the agreement invalid. The contract must include the following elements:

1. The name of the document and the place where it was compiled.
2. An indication of the parties to the transaction.
3. Description of the item (including location address, square footage, number of rooms and other relevant information).
4. Cost of living space.
5. Other terms and conditions that the parties wish to include.
6. Date of the agreement and signature of the parties.

After the agreement is drawn up, it, like the transfer of rights, must be subjected to the state registration procedure in Rosreestr (if we talk about real estate).

This can be done by contacting Rosreestr or by contacting a multifunctional center for the provision of state or municipal services.

To do this, the seller must have a passport with him, as well as an extract from the unified state register of rights to real estate. The buyer only needs to have a passport with him.

After state registration is completed and the sale and purchase transaction is registered, the re-registration of the right can be considered completed.

List of documents required for such a sale

The list of documentary acts in this case is small. The main ones are:

1. Passports of the parties.
2. Birth certificate (if one of the parties is under 14 years old).
3. A gift agreement as a basis for the existence of ownership rights (yes, it is required!).
4. Purchase and sale agreement in triplicate.

These documents are quite sufficient to carry out a transaction for the purchase and sale of real estate and to re-register the right from one person to another after making a donation.

Tax on the sale of donated real estate

Gift taxation can be considered in two forms. In the first case, we are talking about the tax that must be paid when receiving property as a gift. In this situation, income tax is payable. The tax depends not on the market, but on the cadastral value of the received residential premises.

In the second case, the tax will have to be paid even when the property received as a gift is alienated by concluding a purchase and sale agreement. In this situation, the seller will have to pay income tax in the amount of 13 percent of the total value of the funds received when selling the home.

Deadlines for personal income tax payment

In addition to the fact that a citizen needs to pay tax, he also needs to fill out and submit a tax return to the authorized government body. This is necessary in situations where the property has been owned for less than three years.

The declaration must be submitted no later than April thirtieth of the year following the year of the transaction. Payment of the tax occurs no later than July 15 of the year following the year in which the purchase and sale agreement was concluded.

How long before you can sell an apartment after donation, so as not to pay tax?

When answering this question, it is necessary to take into account who were the parties to the transaction, when the purchase and sale agreement was concluded and other significant features.

So, if an agreement was concluded between close relatives, then the apartment can be sold without paying tax after three years from the date of registration of the transfer of property rights.

If the transaction was completed after January 1, 2016 and the parties are not close relatives of each other, then you must wait five years from the date of state registration of the transfer of property rights in order to exempt yourself from paying tax.

Can the donee sell an apartment if the donor lives in it?

According to the norms of the legislation of the Russian Federation, living in an apartment of a person on the basis of permanent or temporary registration does not deprive or limit the right of the owner of the residential premises to alienate the property belonging to him. At the same time, it is necessary to indicate in the purchase and sale agreement that the residence of a particular citizen in the transferred residential premises is his encumbrance.

Let's summarize! When receiving a gift of residential premises, you have to wait a certain time in order to sell it without tax.

You will have to pay tax if the transaction was completed before the three or five year period, as described in detail earlier. The donor may also have the right to live in the apartment if he is “registered” there.

In this situation, in order for the transaction to be legal, it is necessary to indicate the corresponding encumbrance in the contract.

Sell ​​or donate a share in an apartment to a relative

18.04.2018

1. A document containing information about the existence of rights to property.
2. A statement from the person who will receive the deed of gift, requesting that the transferable right to real estate be re-registered.

3. If the agreement was drawn up in writing, without confirmation from a notary, it is important to provide the originals of this document in the amount of how many parties signed it. They will be transferred to the authorities for state registration. You also need to have another original, which will become the title document.

4. If the gift agreement was certified by a notary, it is necessary to provide the originals according to the number of drafters of the transaction plus one copy of this agreement.
5. Extract from the technical passport from the BTI.
6. After collecting documents, it must be submitted to Rosreestr to register the transfer of ownership.

7. If the property is to be transferred by gift to a person under 14 years of age, then permission from the parents or guardians is required to confirm that he is authorized to accept the property.

The procedure for donating a share in a privatized apartment to a relative is quite simple.

However, the greatest attention should be paid to the preparation of the deed of gift. It should be remembered that it should not indicate any conditions, even the most insignificant ones. For example, the donor cannot stipulate in the contract his lifelong right to reside in the alienated apartment.

If this is indicated, the deed of gift will be declared invalid and the transaction itself void. But if you have already received a certificate of ownership, and the former owner of the share in the apartment does not want to vacate it, then you can go to court. You will learn how to do this correctly from this article.

How best to arrange an apartment (donation or purchase and sale), depending on the circumstances

The purchase and sale agreement can also be drawn up without the participation of a notary - the document can be submitted for registration with the Federal Reserve System immediately after signing by the parties. After checking the legality of the transaction, the seller and buyer will receive their documents - a registered agreement and a certificate of ownership of the apartment, respectively.

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Give or sell an apartment to a relative: what is better to do and which transaction will be more profitable - purchase and sale or donation of living space

Agreements will need to be signed by both parties and taken to employees of authorized state registration bodies. It is especially convenient to transfer property in this way during an urgent departure or serious illness.

According to the gift, the apartment goes to one specific person (the recipient), who will have all the rights and no one will be able to claim his property after the death of the donor, even close relatives of the deceased.

Residential real estate: donate or bequeath

Let's make a reservation right away. Sales and purchase agreements are rarely used between close relatives. The purchase and sale agreement does not have any advantages for spouses, parents, children (including adopted children), grandfathers, grandchildren and other relatives.

Except for the timing of registration: the buyer under the purchase and sale agreement can become a full owner of the property just a month after submitting documents for state registration. For those entering into a civil marriage, donation is also not suitable - it is better to correctly draw up a purchase and sale agreement.

Otherwise, buying and selling is not the best option for close relatives. An apartment purchased under a purchase and sale agreement will be the joint property of the spouses, and in the event of a divorce, your spouse may claim an equal share of the “gift”.

When concluding a purchase and sale transaction between close relatives, it is impossible to make a property tax deduction. Unlike a will or deed of gift, an owner who has owned real estate for less than three years will be required to pay income tax for an individual if the value of the property exceeds a million rubles.

If real payment, that is, transfer of money, does not occur under the purchase and sale agreement, then the transaction is considered void (feigned). Actually, that is why it does not apply to close relatives.

Deed of gift for an apartment or purchase and sale agreement: which is better and cheaper to draw up?

What is cheaper: donate or sell an apartment? Many participants in the transaction are interested in the question of what is more profitable - to conclude a gift agreement or a purchase and sale agreement. After all, in fact, both transactions are almost identical , but in some situations they may turn out to be profitable .

Donation and purchase and sale

• as a rule, such agreements are concluded in simple written form (mandatory notarization is not required until the parties themselves want it);
• the object of the transaction is a motor vehicle (i.e., its individual characteristics will include the information specified in the vehicle passport (PTS): make (model) of the car, identification number (VIN), year of manufacture, engine number, chassis (frame) No. , body, color, information about registration numbers;
• Mandatory conditions that must be reflected in such agreements include information about the PTS (as a title document for ownership), an indication of re-registration with the traffic police;
• for a purchase and sale agreement, it is mandatory to indicate the cost (price) of the car - an essential condition, since the transaction is paid;
• Together with the transfer of the vehicle, the donor (or seller) is obliged to transfer to the other party to the transaction all the necessary documents (PTS, diagnostic card, etc.);
• As an annex to the contracts, a vehicle acceptance certificate .

What is more profitable - donation or sale?

In the case of donating an apartment to a close relative, there are no tax consequences for both parties to the transaction.

But if you give an apartment to a stranger, then the recipient is subject to personal income tax: minus 13% of the cost of the apartment, since, from the point of view of the tax authorities, he has received a substantial income and must pay tax to the state for it. The donor, of course, does not owe anything to the budget, since he does not receive any income.

By the way, the law includes the following members of the donor’s family as a “close relative”: spouses, children (including adopted children), parents, grandparents, grandchildren, brothers and sisters (including step-sisters).

Donate or sell an apartment

When concluding a purchase and sale agreement, real benefits can only be obtained if your seller has owned the property for more than three years (see Part 1 of Article 220 of the Tax Code of the Russian Federation). This will avoid paying tax. If we are talking about a longer period, the tax on the sale of the apartment is not paid in any case.

Therefore, economically, donation can be justified only when transferring ownership rights to a close relative when owning an apartment or dacha for less than the three years specified above. But only economically.

From a legal point of view, this is unacceptable, since deliberate concealment of income from taxation in cases established by law entails criminal liability.

Donation of a share in a privatized apartment

There are often cases when one apartment has several owners at once. The law allows such ownership, giving everyone the right of ownership. Which becomes common in such a situation. Often there is a donation of a share in a privatized apartment, which has its differences from other housing transactions.

Sell ​​or donate a share in an apartment to a relative Link to main publication

Sale under a gift agreement

 Some property owners offer to transfer ownership to the buyer under a deed of gift. Of course, not for free. Money for the object is transferred in parallel with the signing of the deed of gift.

Usually the seller is interested in such a scheme. The buyer's interest lies in the low cost of the property. However, such a deal could lead to serious difficulties in the future.

The risks for both parties are so great that sometimes realtors do not even undertake to participate in such transactions.

Motives

The scheme of selling real estate under a gift agreement is used quite rarely. According to statistics from various real estate agencies, sellers contact agencies with such an offer only a few times a year. Selling under a gift agreement is resorted to only in extreme cases:

1. Difficulty of selling a share

When selling a share, the seller is obliged to obtain from other co-owners a waiver of the use of the pre-emptive right. This right is reserved to them by the Housing Code of the Russian Federation. Without receiving a refusal, the transaction will not be registered with the Rosreestr office.

There are two ways to follow the procedure: when signing papers at a notary or sending notices of sale by registered mail with notification. The notice must indicate the cost of the apartment and the deadline for a response (one month). According to the Civil Code of the Russian Federation, failure to respond may be considered a refusal.

True, if the notice was not received on time, then by law the co-owner has the right, within three months after the transaction, to demand in court that the purchase be transferred to himself

It would seem that the scheme is simple. But, as practice shows, co-owners often express a desire to buy out the share. And they plan to do this at the lowest possible price.

To achieve this, all possible levers of influence on the owner are used. However, abuse of the right of first refusal is resorted to not only for dumping.

Particularly difficult are cases when the relationship between the owners is damaged, and the co-owners prevent the sale of the share on principle.

Victor Kats, executive director of the LiKom Academy of Sciences: “Donation is started in order to avoid obtaining the consent of the other shareholders. In this case it is not required.

The share can be sold if the relationship between the co-owners is normal, but if not, then it can be difficult to sell, since those guys at the last moment begin to create obstacles. They declare that they will buy it themselves, the deal falls apart, and the co-owners end up not buying either.

If a new buyer is found, the shareholders must be notified again, and they will again express a desire and will “pull their feet,” and so on.”

Apartment buildings built on individual housing construction lands added even more problems with the redemption of shares. In this case, there may be more than a dozen co-owners.

Olga Melnikova, real estate specialist at the Novosel Academy of Sciences: “On individual housing construction lands, an apartment building is registered as an individual building, in which shares - apartments - are sold. Selling an apartment here will not be easy. In order to avoid notifying all the residents of the house, they usually sell it through donation.”

A similar situation arises when selling a parking space in an underground parking lot. Parking spaces are usually registered by developers as shares.

Alexander Babichev, director of Prospekt RK: “We are currently working on a parking lot with 98 co-owners. The parking lot is delivered as a single object, which is divided into 98 shares. It is almost impossible to contact everyone there and get their consent. In this case, a gift deed is used. People act based on the optimal way to spend their energy.”

2. If you do not want to pay tax on the sale

Only relatives of the donor are exempt from paying gift tax. According to the Family Code of the Russian Federation, when donating real estate to close relatives (spouses, parents and children, grandparents and grandchildren, full and half brothers and sisters), no tax is charged.

In other cases, in accordance with the Tax Code of the Russian Federation, the donee is obliged to independently calculate personal income tax (13% of the cost of the apartment) on the income received. If the value of the gift is not determined, then the estimated value of the BTI apartment is taken into account, which is usually several times lower than the market value.

Viktor Kats, executive director of the LiKom Academy of Sciences: “The recipient pays tax on the estimated value of the BTI. She is not big.

Or the second option: if the donation agreement specifies the value of the donated property, then in this case tax is paid on it.

But if it turns out to be significantly less than the estimated value of the BTI, then the tax office will request a certificate from the BTI about the estimated value and will take tax on this amount.”

Crime

Donation is a gratuitous transaction. The recipient accepts the gift in the form in which it is presented - with all the debts and rights of other persons. And he has no right to make any claims to the donor.

Vasily Sosnovsky, partner of the Genesis Law Company: “If a gift agreement was concluded and the ownership right passed to the Donee, who subsequently learned about the rights of third parties to the residential premises, then he will not be able to make any claims against the Donor, for the reason that the agreement the donation did not provide for reciprocal performance on the part of the Donee, with the exception of acceptance of the gift.”

Unlike the purchase and sale agreement, where it is stated that the property is transferred free of the rights of third parties, the gift agreement does not provide for this.

Alexander Babichev, director of the Prospekt RK: “The money was transferred, your problems - this is approximately the position the court may have. Most likely, the court will not accept the claim for reimbursement of expenses, because the gift agreement is gratuitous.”

The only way to get the money back is to terminate the deal in court. To do this, the buyer will have to prove that a purchase and sale transaction was carried out under the guise of a gift. In accordance with the Civil Code of the Russian Federation, such an operation is a sham transaction. If there is evidence or testimony, such a transaction can be easily challenged in court.

Vasily Sosnovsky, partner of the Genesis Law Company: “The law recognizes a sham transaction as a transaction that was made with the aim of covering up another transaction.

If a sham transaction was concluded, then such a transaction can be challenged in court by the parties, as well as interested parties (share owners, heirs). Everything received under such a transaction will have to be returned to each of the parties.”

If the transaction is terminated, the court will oblige the seller to return the amount received from the buyer. Considering that the price of the object is not fixed anywhere, the cost will be determined based on the market level. And this value may change from the moment the transaction is completed.

However, much more often the initiators of termination of such a transaction are not the buyer, but third parties. Usually they are relatives of the donor who had their own plans for the “donated” object.

It is proven in the courts that the owner was not aware of his actions when he gave his home to a stranger. This looks especially plausible in cases where the donation significantly worsened the living conditions of the donor.

Termination of a sham transaction is possible even after the resale of the apartment.

Olga Melnikova, real estate specialist at the Novosel Academy of Sciences: “According to the law, during resale, the next buyer is a bona fide purchaser. Although there were cases of challenging such transactions. For example, when it is proven that this was done on purpose.

When the seller knew that the gift transaction would be contested, but sold the object anyway. There was a case when a woman came forward. Her father, at an age when he was already blind, gave a plot of land to the man who looked after him.

After this, six years passed, the daughter filed a lawsuit to challenge this deal, she tried to prove that the elderly man did not understand what he was doing. The process dragged on, the man resold the plot to a friend, who also resold it.

As a result, despite two compensated transactions, the court declared the transactions void. The daughter became the owner of the plot.”

The money is transferred to the seller without any supporting documents. Moreover, this happens even before the registration of ownership of the buyer. In most transactions, money is transferred when a deed of deed is signed.

Moreover, the deed of gift can be revoked at any time.

Vasily Sosnovsky, partner of the Genesis Law Company: “Even if applications for state registration are under consideration by the Rosreestr Office, the donor has the right to submit a written application for the return of documents without state registration of rights. In this case, state registration is suspended for a period of no more than a month, if the donee has not submitted a similar application.”

Punishment

The law does not provide for punishment for making sham transactions.

Vasily Sosnovsky, partner of the Genesis Law Company: “There is no specific punishment in the law for concluding a sham transaction. To determine this issue, it will be necessary to analyze all the events related to this transaction, including the motives for the transaction.”

The buyer will be required to return the apartment, and the seller will be required to return money that he may no longer have.

***

Due to abuse of the right of priority to buy out a share or due to a large number of co-shareholders, sellers sometimes find themselves hostage to the situation. Market participants believe that changes should occur in this matter at the legislative level, since today such a scheme can be used not only for the sale of real estate, but also for fraud.

Selling or donating a share in an apartment, which is better 2017 - Help from a Lawyer

• compliance with written form;
• state registration of the transaction;
• obtaining the consent of the spouse or other co-owner for the alienated share of the apartment;
• the burden of maintenance and payment of mandatory payments is placed on the new owner after the stage of state registration of the right;
• fast registration procedure;
• an agreement cannot be concluded for a mortgaged apartment if there is no consent from the creditor bank to carry out the procedure;
• weak legislative grounds for challenging a transaction and the impossibility of making changes to the contract after actual registration.
• Advantages and disadvantages of legal structures Each specific case of alienation of an apartment is associated with advantages and disadvantages that arise either by the letter of the law or based on subjective reasons.

This indicates rather the intentions of the donor. In reality, ownership comes only after registration at the territorial branch of Rosreestr. This body carries out the re-registration of property rights.

Important

The parties to the transaction must make a visit to this organization in the same composition as when concluding an agreement with a notary. This is necessary to ensure that all parties involved in the transaction are alive and capable.

Deed of gift for an apartment or purchase and sale agreement: which is better and cheaper to draw up?

She is insignificant.

• Both types of transactions are subject to taxation.
• It is possible to be exempt from personal income tax or apply other benefits under the Tax Code of the Russian Federation.
• Question - Answer My father owns 4/5 shares in the apartment, I paid all his debts for utilities and live with him. Now he wants to register his share in my name. What is the best way to formalize such a transaction: purchase and sale or donation? In this case, it is better for you to draw up a deed of gift for a share in the apartment. In this case, there is no pre-emption requirement, and neither you nor your father will be subject to tax because you are closely related. I want to give my mother a car that I have owned for less than a year. Do I need to have it certified by a notary and make an appraisal report? These requirements are not mandatory for donating a car.

What is better between relatives: gift or sale?

Any transaction has both pros and cons, depending on the specific situation. Donation and purchase and sale are no exception. Often, persons interested in the alienation of property that belongs to them try to cover up one transaction with another in order to obtain a certain benefit, forgetting that such transactions are invalid.

Attention

It should be noted that the choice of how to formalize the alienation of property, in the form of a gift or sale, depends directly on who is the parties to the transaction. If these are relatives, then it is necessary to resort to donation; if not, to purchase and sale.

This recommendation applies to any property. Pros and cons of a deed of gift In this regard, donation has certain pros and cons that are characteristic of all objects (movable and immovable things), which need to be discussed in a little more detail.

What is more profitable and better: gift or sale (for tax purposes)

However, it is recommended to document exactly those legal relationships that actually take place between the parties in order to protect yourself from adverse legal consequences. Add a comment Popular articles Is it possible to challenge a deed of gift for an apartment or house (before and after the death of the donor) Who and how can challenge a deed of gift for an apartment or house.

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Do you need a notary when donating a share of an apartment?

Such consent must be certified by a notary, which entails costs.

Tax on the sale of an apartment When selling an apartment, the seller is obliged to contribute funds to the state budget in the amount of 13% of the value of the property specified in the agreement.

There is a basis for tax exemption: when the real estate has been owned for three years or more, the seller does not pay tax.

This taxation applies to properties acquired before 2016. When the property was purchased in 2016 or later, common ownership must be for at least five years to be exempt from mandatory payments.

What is better, gift or purchase and sale of an apartment?

Within the prescribed period, the right is re-registered, and the new owner can receive a certificate from the register of real estate transactions stating that the property belongs to him. If the ownership of real estate is transferred by deed of gift, the donee person specified in the agreement will be the sole owner.

Regardless of whether or not the recipient has a spouse or children, the object is not registered as common family property.

Peculiarities of drawing up a purchase and sale agreement between relatives Unlike a gift agreement, the property acquired during the purchase will be the joint property of the spouses; a certain amount of money will need to be contributed.

What is better: a deed of gift or a contract for the sale and purchase of an apartment?

VIN), year of manufacture, engine number, chassis (frame) No., body, color, information about registration numbers;

• Mandatory conditions that must be reflected in such agreements include information about the PTS (as a title document for ownership), an indication of re-registration with the traffic police;
• for a purchase and sale agreement, it is mandatory to indicate the cost (price) of the car - an essential condition, since the transaction is paid;
• Together with the transfer of the vehicle, the donor (or seller) is obliged to transfer to the other party to the transaction all the necessary documents (PTS, diagnostic card, etc.);
• As an annex to the contracts, a vehicle acceptance certificate may be attached.

As you can see, there is practically no difference in the execution of contracts of donation and purchase and sale of a vehicle. The procedure for donating a share in an apartment to a relative is described in detail in Chapter 32 of the Civil Code of the Russian Federation. It provides all the nuances that need to be taken into account when preparing documents.

How to give an apartment to a relative? Before donating a piece of real estate, it is necessary to carry out some work to collect the necessary documentation.

It is possible that part of it is lost and certain important papers will have to be restored, without which the agreement may be declared invalid.

The agreement is free of charge and is governed by Art. 572 of the Civil Code of the Russian Federation. Dear visitors to the “Inheritance Expert” project! When faced with problems regarding entry, registration of inheritance, donation, will, we recommend that you contact qualified practicing lawyers on donation and will issues:

• For Moscow and Moscow Region: +7 499 703 38 31
• For St. Petersburg and Leningrad Region: +7 812 627 15 60
• All Russia +7 800 350 14 83

Applications and calls are accepted around the clock and seven days a week. Thank you for visiting our Inheritance Expert resource. The purchase and sale agreement is concluded between the buyer and the seller.

As part of the agreement, property owned by the seller by right of ownership is transferred. In turn, the buyer pays for this property in accordance with the existing agreement.

Such a transaction is controlled by Article 454 of the Civil Code of the Russian Federation.