Take it back. Lawyer Shcherbinin revealed how to challenge a housing donation agreement | Right | Society

Donating an apartment, house or cottage is a generous gesture that many can only dream of. But if the matter is not processed properly, then the happy owner of an expensive gift risks being left broke in the future. aif.ru spoke about how to reduce risks lawyer Alexander Shcherbinin.

Antonina Lopaeva, aif.ru: Let’s clarify right away: when a grandmother gives her grandson an apartment “in words” or a man verbally promises his common-law wife to leave the dacha, does this have legal force?

Alexander Shcherbinin: No, verbal promises are void, even if made on camera and in the presence of others. Gifts worth up to 3 thousand rubles. You can give without a written form, and I would still recommend recording this fact. And when it comes to an apartment, dacha or other real estate, you need to formalize state registration of ownership.

— Otherwise, the donor might change his mind?

– Situations are different. In my practice, there was a case when at a wedding the wife’s grandmother announced that she was giving the newlyweds an apartment and even symbolically handed over the keys to it. A few months later the couple separated. The ex-wife said that since the apartment was given to both of them, it should be divided during the divorce. But, of course, even taking into account the available video recordings from the wedding, the court sided with the groom: the deed of gift was not formalized, and the grandmother’s oral promises have no legal force.

— If a deed of gift had been issued, could the ex-wife receive a share in the apartment?

“Then the apartment would be the property of the one who received it as a gift while married. If the grandmother had registered the apartment for both her grandson and his wife, then yes. If only for the grandson, then only he would have the right to the object even after the divorce.

“Can I just change my mind and take the gift back?”

— If the deed of gift has already been formalized, and the ownership right has passed to the donee, then no. But some are trying to challenge this in court. The most common reason is when the donor did not understand the meaning of his actions and/or was misled. This often happens to older people. If the case goes to court and the basis is confirmed through a psychiatric examination, then the gift will have to be returned.

The second option is when the transaction covers up other relationships between the parties (for example, a bribe was given in a veiled manner through a gift agreement), but subsequently, using documents and various evidence, it is possible to prove that the transaction was a sham.

And the third common reason concerns debtors. A person sees that he is in arrears with creditors, he re-registers the property through a deed of gift to his relatives and says that now there is nothing to take from him. I hasten to upset you: such transactions are also disputed by the courts once or twice.

— How to donate an apartment, house, cottage or land correctly, so as not to get into trouble later?

— Act according to the law, even if you are sure that no conflicts or disputes are expected. First, make sure that this is a gift transaction – it is always free of charge. If you are offered an apartment, and in return they ask for money, some service, another product or object, then this is not a gift. Secondly, the agreement must be registered. It is drawn up in writing in three copies (one of them for Rosreestr). The contract specifies the passport details of the donors and the donee, as well as information on the object, including address, cadastral number, technical characteristics. Then the parties contact the MFC, and then the transfer of ownership of the object is registered. It is not necessary to conduct this transaction through a notary, even if a minor is involved.

— What obligations does the donee have?

— For some reason, they often forget about taxes, although the amount is impressive. If you received an apartment as a gift, then be prepared to pay a tax of 13% of its value. But this does not need to be done if the transaction is concluded between close relatives – spouses, brothers and sisters (including half-siblings), parents, grandparents, grandchildren and children (including adopted children).

— What if parents want to give an apartment to a minor child?

— On behalf of the minor, the object is accepted by his legal representative. For example, a mother gives an object to her son and enters into an agreement, acting simultaneously as both the donor and the recipient in the interests of the child. But the child himself cannot donate the property. If subsequently any actions are taken with the donated object and a minor is involved, then a notary is needed.

— Can a person refuse a gift?

– Yes, and it is not necessary to do it in writing. It is enough just not to sign the gift agreement. Accepting a gift, including an expensive one, is your right, not your obligation.