Termination of a deed of gift is what one thinks of after the transaction is completed. What grounds are listed in the law? Are there any features? First, consider the contract itself, its conditions and the procedure for concluding.
Normative regulation
Civil Code - this law lists both general and special reasons for the termination of the gift contract, unique to him. In particular, the provisions listed in Art. 578 Civil Code.
The Code of Civil Procedure describes the procedure for the consideration of disputes from filing a claim to reviewing a case in higher instances.
Judicial practice provides food for thought. General clarifications on the procedure for concluding contracts and their execution were adopted, other nuances are explained. The courts have gained experience in considering specific cases, decisions on which are available for discussion to everyone. A number of conclusions are outlined below.
Gift concept
Donation involves the transfer of property or property rights without a counter transfer of rights or property. Release from duty is permitted. The owner has the right to make a promise for the future. The condition is not prohibited, after which the transfer of property would be mandatory.
Subject of Agreement
One of the essential terms of the gift contract is the subject. In its capacity are things, money, property rights, a property obligation to the donor or other person. Given the extensive list of options, the parties should describe the thing or rights that are transferred, or the duty of the donee to third parties. The easiest way is with real estate, because the rules for conducting transactions and even their descriptions are legally established.
Other nuances
On the material terms of the donation contract, without which the transaction is not considered completed, the Civil Code notes the following. The parties have the right to prescribe in the agreement as essential conditions those that they consider necessary, but the provisions of the Civil Code are not canceled).
Additional terms
First of all, the deadline for fulfilling obligations. Usually, the transfer is made upon signing the contract or it stipulates the appropriate time allotted for the procedure. The absence of a reservation gives the recipient the right to request the transfer of property or the performance of obligations at any time. The donor is required to complete it within a week after receiving the notice.
Other conditions may be entered into the text at the discretion of the parties. Their presence or absence will not affect the legality of the agreement.
At the same time, the parties are obliged to act within the framework of the law, its violation makes the transaction partially or completely invalid. And the consequences of this are much more serious than with the termination of the gift contract.
Giving and heirs
The obligation to make a gift passes to the heirs, unless otherwise specified in the agreement. The right to receive a gift does not pass to the heirs, unless otherwise specified in the contract.
Similar reservations are evaluated in terms of inheritance standards. At the same time, the rule on the prohibition to establish the death of the donor as a condition for the transfer of property has not been canceled.
Rights and obligations of the parties
The content of transactions is determined by their rights and obligations. We must not forget about their division into consensual and real. The consensual gift agreement establishes the fulfillment of the obligation in the future; in the real agreement, the transfer or fulfillment of the obligation is provided for immediately.
These are the responsibilities of the donor:
- transfer of transaction object;
- transfer of documents for property;
- other actions as agreed.
What rights does the law give to the donor?
- Refuse the transaction if the state of health has changed, marital status, whereby the execution of the transaction will lead to a deterioration in its financial situation.
- Refuse the transaction if the acquirer encroached on his life and health or the life and health of those close to him.
- Heirs have the right to cancel the transaction through the court if the person who received the gift killed the donor.
Here is what the law says about the recipient:
- His right is to receive property.
- His duties: not to harm the life and health of the second side and the lives of his loved ones.
- Not to perform actions that would harm the gift would reduce its value.
The parties are entitled to include other rights and obligations in the text of the agreement. The law indicates those that are not subject to cancellation or change at the behest of the parties.
Features of the contract of gift of real estate
Subject of the agreement - land, apartment or house. If a plot with a house is simultaneously transferred, one agreement is concluded. The law does not prohibit the signing of two documents, but it is more convenient from a technical point of view. We must not forget about the principle of unity of the land and the house located on it.
Another feature: in addition to the passport, SNILS data, documents that serve as the basis for the emergence of ownership rights are entered. If a share in the property is transferred under the transaction, the rights of the child are affected, it is executed exclusively through a notary public. A transaction with the child’s property also requires the consent of the guardianship authorities.
registration
The contract of gift of real estate is registered. The transfer of rights under a notarial transaction is registered without checking the terms of the agreement by the registrars.
If the document is drawn up in a simple form (without involving a notary public), it is checked for compliance with the law and then only entries are made in the register of property rights.
Here is the list of documents submitted:
- application completed in the form;
- copies of passports;
- copies of the contract;
- technical passport for a house or apartment;
- technical documentation for the land;
- documents giving the right to property (agreement, order of authorities, etc.);
- receipt of state duty payment.
Technical documentation is not necessary if information about the property has already been entered in the register of rights.
Registration of the transfer of rights is important because after its completion a person is considered a full-fledged owner of the property.
Obligatory and registration of the vehicle in the traffic police.
How much does it cost to issue a gift certificate for an apartment
Significance has several factors:
- apply for the preparation of the contract to a notary or lawyer or draw it up on the form with his own hand;
- registration fee.
The prices of notary services are determined by the notarial chambers of the regions, they depend on the value of the object, but cannot be lower than that established by the chamber. Is it forbidden to exceed the price level? No, notaries have the right to exceed it at their discretion.
The size of the state fee for registration of donation of an apartment is:
- 2000 rub. for citizens;
- 22 000 rub. for organizations.
How much it costs to get a gift apartment depends on who you turned to for the preparation of documents and the region, which makes a significant difference.
Termination of Agreement
Is it possible to terminate a deed of gift? Its termination has its own characteristics:
- the law provides for the cancellation of an already concluded agreement in court;
- the law gives the right to refuse to conclude a transaction;
- By signing a joint agreement to terminate the transaction by mutual agreement;
- terminate the transaction by filing a lawsuit in court to declare it invalid.
Termination of the transaction
This process is provided for by the provisions of the law, two of which are described above. Additional grounds for gift cancellation:
- there was a threat of destruction or significant damage to the gift from the person to whom the gift was presented, if the gift has intangible value for the donor;
- the property was donated by an organization or individual entrepreneur, 6 months before the start of bankruptcy proceedings against them;
- the death of the person who received the gift gives the donor the right to demand his return if there is such a condition in the agreement.
However, this is not all. Article 578 of the Civil Code does not indicate that the reasons for the cancellation set forth in it are exhaustive, and the parties are not entitled to establish other. We must not forget about the remaining provisions of the Code and other laws.
Rejection of a pending agreement
Cancellation of donation of a transaction not yet completed is possible for the reasons described above. This adds to a deterioration in health status or a change in marital status.
Now consider the right of the donee. He has the right to refuse the transaction at any time before the transfer of property. The refusal is made in the same form in which the transfer is made (simple transaction or notarial, respectively). Inevitable and registration of refusal, if the original transaction was registered.
Declaring the transaction illegal
The Civil Code describes general and specific criteria for the legality of transactions.
Thus, there are reasons for the cancellation of the gift, characteristic of all other transactions. For example, a mock transaction, which is canceled due to the fact that it served in reality as a cover for the sale of property.
Violation of the form - the lack of notarization where one cannot do without it is enough to also invalidate the transaction.
The law indicates disputable and invalid transactions. The former may be called into question; the latter are considered invalid automatically. For example, a transaction with a lack of an accurate description of an item is considered void.
If there have been violations and the transaction is formally invalid, the parties are entitled to apply to the court for recognition of the illegality of the transaction.
Trade ban
Without fail, the contract of donation of the apartment is terminated if:
- the transaction was concluded on behalf of a child (a person under the age of 18) or an incompetent person;
- the apartment was donated to an employee of an educational, medical, social services organization, on behalf of a person in care, treatment, his parents, spouses, guardians or trustees;
- state or municipal employee in connection with their activities at the post;
- It is forbidden to give apartments to each other to commercial organizations.
These provisions apply to all things whose value is not more than 3 thousand rubles.
Tax consequences
Previously, the reason for filling out apartments instead of buying and selling was the desire to save on taxes. Then the legislation was tightened. A transaction concluded between persons who are not considered close relatives from the point of view of the law is subject to the same taxes as the sale of real estate. Only tax is paid by the acquirer of the property, not the donor.
Earlier, the tax service required to pay tax based on the cadastral price of the object. Now, thanks to the decision of the Constitutional Court, the calculation of the tax amount is based on the market price. The rate is 13%.
Underestimation of the cost will lead the FTS to appeal to the court and to recover additional funds. Thus, the practice of concluding gift transactions with real estate in order to cover the reality of the sale, put an end to.
The tax service is one of the bodies that have the right to appeal to the court with a claim to terminate the gift agreement. Protecting the rights of children or those incapable, they can go to court and guardianship authorities and the prosecutor’s office with a statement.
Trial
With the exception of mutual consent, documented, the refusal of donation to performance, all methods of termination of the contract are implemented through the court.
The circumstances and facts on which the plaintiff’s position is based are proved by him. The defendant accordingly substantiates its arguments. If the dispute concerns real estate, the case is considered at the location of the object. Given the cost and composition of the entities, almost all claims are dealt with in district courts.
How to write a lawsuit?
- name of court;
- information about the plaintiff (name, place of residence);
- information about the defendant (name, place of residence);
- third parties with or without their own requirements (family members with the right to reside, Rosreestr, guardianship authorities);
- a description of the circumstances of the case;
- claims of the claim (to cancel the transaction, recognize it as invalid, not concluded, etc.), depending on what grounds are the basis of the application;
- recovery of costs for legal aid, payment of state fees, expertise, etc .;
- inventory of attached documents;
- signature and filing date of the claim.
For a successful outcome, it is enough to choose one of the conditions for declaring a transaction invalid or its cancellation.
How many copies to prepare for the process? Depending on the number of participants.
A power of attorney of a representative may be issued at the place of residence, work, inpatient treatment, or serving a sentence.
The evidence base is always based on documents, otherwise the conditions for termination of the gift contract are considered to be unfulfilled.
State duty is not paid when filing a lawsuit against authorities. The plaintiff is obliged to pay the fee, taking into account the market value of the object. Its amount is calculated in accordance with the norms of the Tax Code.
What method of transfer of rights to choose
The answer is determined by the goals set by the parties to the transaction. Those wishing to receive money should make a sale. If it concerns relatives, especially close ones, it is better to make a gift deal. Moreover, when selling, tax is paid on received money, and on gift from received property. The donor pays nothing, because there is no benefit in his position.
Another feature. When buying, there is a rule on negotiating a transaction with other co-owners (with both equity and joint ownership). When giving a present, the co-owner is obliged to coordinate the transaction with only joint property. Share is given without approval.
Which is better - a gift or purchase agreement? This issue is resolved by the circumstances prevailing in the relations between the parties.
Finally
To make a gift, especially an expensive one, means to fulfill a number of duties so that there are no claims from the state. The consequences may be in the form of claims of the tax service and recognition of the transaction as illegal.
An additional guarantee of legality is the registration of the transfer of rights to property.
The law provides for general and special conditions for declaring a transaction illegal. The conditions for cancellation and cancellation of the contract are established. Almost all ways to terminate the contract are through the court. An exception is a mutual waiver of an agreement or a waiver of execution prior to the acceptance of property.