Donation agreement with the right of lifelong residence of the donor

A deed of gift for an apartment with lifetime residence of the donor is a special category of agreement in which the owner gives real estate to a second party under certain conditions.

According to Article 572 of the Civil Code of the Russian Federation, a gift agreement is a gratuitous transfer of property rights from one party to another. The donee does not pay anything to the donor when concluding this type of transaction.

However, this agreement may contain certain clauses indicating the fact that the donor has the full right to live in the donated apartment for life.

Is it possible to draw up a gift agreement with the condition of the donor’s lifelong residence?

Some believe that a gift agreement (hereinafter referred to as DD) with the lifelong residence of the donor cannot be drawn up, citing the fact that this is considered the presentation of counter conditions. However, in Art. 572 of the Civil Code of the Russian Federation states that a counter condition means the transfer of money, property, and other valuables to the donee. The donor's residence is not such a condition.

According to paragraph 3 of Art. 421 of the Civil Code of the Russian Federation, citizens have the right to enter into agreements containing elements of other agreements. Sometimes courts believe that the donor's residential deed includes elements of rent, but in fact this is not the case.

Rent implies the maintenance of the owner. In transactions with a gift, the donee becomes the full owner, but the donor can use the real estate if this is provided for in the deed of gift.

Another argument in favor of the legality of concluding a residential DD is the ability of the donee to refuse the gift (Article 573 of the Civil Code of the Russian Federation). If he is not satisfied with this condition, he can issue a written refusal at any time, even after the conclusion of the DD.

Briefly: you can issue a deed of gift with lifelong residence. Retention of the right of residence does not imply the presentation of counter conditions: according to Art. 423 of the Civil Code of the Russian Federation, a contract is considered to be compensated when an obligation arises to transfer money, property, or provide services.

What can you give?

According to the DD with the right of residence, a house, apartment, or other real estate object intended for human life is given.

It is important to consider: when donating a private house, the land plot where it is located is also alienated. Alienation of these two objects separately is not permitted.

Complete the survey and a lawyer will share a plan of action for a gift agreement in your case for free.

Deed of gift with lifetime residence of the donor, will or annuity agreement: which is better?

Gift agreements, annuities and wills are different types of transactions:

1. A deed of gift involves the transfer of property free of charge, but the donor, subject to the appropriate conditions, retains the right to use the real estate.
2. The will comes into force upon the death of the testator. Until this time, he is the owner. Heirs can register ownership of the apartment six months after the opening of the inheritance case.
3. Rent implies the transfer of real estate under an agreement in exchange for the lifelong maintenance of the recipient.

Note! According to Art. 572 of the Civil Code of the Russian Federation, a deed of gift containing a condition for the transfer of property after the death of the donor is void. A DD where the donee undertakes to provide payment for the “gift” is declared invalid - the rules of annuity apply to it (Article 583 of the Civil Code of the Russian Federation).

Lawyer's advice: if you want to donate an apartment, but remain living in it, draw up a deed of gift with lifetime residence. This will require the consent of the donee. To ensure that real estate passes into ownership after death, it is better to draw up a will. If you want to receive monthly maintenance in exchange for housing, a rental agreement is suitable.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

How to correctly draw up a donation agreement for household appliances and furniture? Legal advice

How to draw up a gift agreement for a stranger?

Positive and negative sides of the deal

People can make such a transaction not only in relation to their relatives; they can donate real estate to anyone, also specifying the condition of lifelong residence and more. Since the gift agreement is a civil transaction, it specifies the rights and obligations of the parties involved. The pros and cons of such a deal can be found by both parties.

What positives does the donor have when drawing up such an agreement:

• if the donor is a disabled citizen, then he can claim lifelong maintenance from able-bodied recipients of the property;
• such a transaction gives the donor the right to live in the living space free of charge, that is, by transferring the rights to another owner, he frees himself from paying utility bills;
• has the right to donate not the entire living space, but only part of it, retaining part of the square meters;
• the donor can also live on the territory of the donated area together with members of his family;
• has the right to enter a clause according to which his accommodation in housing will be free of charge;
• in some cases, the conditions of a lifetime or temporary annuity are prescribed, that is, a clause under which the recipient of the gift undertakes to pay the donor a certain amount, its size and frequency of payments are also indicated;
• if the recipient attempts to create obstacles for the donor’s residence, the donor, in turn, has the right to terminate the agreement.

Arbitrage practice

The courts allow the possibility of registering a DD with residence for an indefinite period, and this is confirmed by several appellate rulings:

• Determination of the Moscow City Court dated January 12, 2021 N 33-1137/17;
• Determination of the Moscow Court in case No. 33-14690/2015;
• Ruling of the Kurgan Regional Court dated April 28, 2016 in case No. 33-1487/2016.

Important! The courts cancel the DD if, instead of the right to reside in the living space, the donor establishes a condition for receiving monthly maintenance - such agreements are recognized as rent and not as a gift.

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Is it possible to issue a deed of gift without the right to sell?

It is impossible to draw up a DD without the right of subsequent sale to the donee. From the moment of registration in Rosreestr, the donee becomes the owner, and the right of residence is not registered.

The new owner can sell the home by notifying the buyer about the details of the transaction. If the buyer does not agree to the lifelong residence of a stranger, he has the right to refuse to enter into a contract.

The consent of the permanent resident donor for the sale of real estate will not be required. The owner can sell, donate or exchange an apartment at any time by notifying the other party about the other person’s right to reside and concluding a purchase and sale, donation or exchange agreement.

Briefly: a deed of gift with the right of residence is relevant if there is a good relationship between the parties and the donor wants to use the property for the rest of his life. At the same time, the recipient can exchange, donate or sell housing to another person at any time, having previously notified him that he will have to live with a stranger.

When they can refuse

The guardianship and trusteeship authorities may refuse to draw up such a gift agreement if the donee is a minor and the transaction is contrary to his interests. The spouse or other owners who are not interested in the loss of property can refuse.

Rosreestr may refuse registration due to incorrect presentation of the package of papers or incompleteness of its completion. If the reason for the refusal is corrected, you can apply for registration again.

It is worth remembering that a deed of gift can be challenged after it has been drawn up and entered into force. This usually happens when the form of the agreement is not followed, there are doubts about the donor’s legal capacity, or circumstances have been identified that influence his decisions.

You can learn how to terminate a gift agreement by agreement of the parties or in court from our article.

Is it possible to determine the procedure for using the apartment?

The definition of the procedure for using real estate is included in the deed of gift, indicating the main points:

• who can use certain rooms and when;
• what room the donor will live in;
• features of the use of common property of an apartment building;
• nuances of using common property in the apartment: kitchen, bathroom, etc.

If desired, the parties can determine the time and schedule for the use of specific property. It is important that the terms of the deal suit both of them.

It is recommended to indicate other important conditions in the DD:

• the period of use of the property is for life;
• the possibility of residence for the donor’s relatives with the consent of the donee (you must indicate the specific number of citizens, the period and rules for using the premises for them);
• leaving the donor registered in the donated apartment;
• right of residence in case of sale of housing to the donee.

Note! If the donee violates the terms of the DD, the donor has the right to go to court to terminate the contract on the basis of Art. 450 Civil Code of the Russian Federation. Violation means creating obstacles to residence, failure to comply with other terms of the transaction.

What happens to the apartment if the donor dies?

After registration of the DD, the ownership right passes to the donee, but the donor continues to live in the donated property and is registered.

In the event of his death, the heirs will not be able to claim the donated property - it is owned by another person (the donee).

Case study:

A man gave a house to a woman under a DD with lifelong residence in 2015, the ownership of the donee was registered 2 weeks later. After that, he remained to live in donated housing, and died in 2017. Because the real estate at the time of the donor’s death belonged to the donee, the legal successors could not claim it and receive it as an inheritance.

Who can give real estate with the right of lifelong residence?

The owner has the right to donate an apartment to any person:

1. To a close relative. If the donee is over 18 years old, he participates in the transaction independently and signs everywhere.
2. To a minor child. Children under 14 years of age sign for themselves, but make transactions with the consent of their parents. The interests of a child under 14 years of age are fully represented by parents or guardians.
3. To a third party. It means a stranger who is not related to the donor: an acquaintance, friend, girlfriend, etc.

Important! If you want to give housing to your child and he is under 14 years old, fill out a DD yourself. You will represent both his and your interests in one person as a legal representative.

Do I need to have the deed of gift certified by a notary?

A deed of gift for real estate requires notarization in several cases:

1. The apartment is in common ownership, a share is given. Before doing this, you need to select it and register the changes.
2. The donor is a child between 14 and 18 years old. In addition to certification by a notary, you need to obtain permission from the guardianship authorities. This is problematic to do, because... when donated, the property is alienated free of charge, and the child’s property situation worsens.

If real estate was acquired during a legal marriage, it is considered joint property. In addition to the notarization of the DD, you will need the written consent of the second spouse, certified by a notary.

Cost of notarization

The duty is established by Art. 333.24 of the Tax Code of the Russian Federation and amounts to 0.5% of the cadastral value of the property, but not more than 20,000 rubles. If notarized consent of the spouse is required, it will cost 500 rubles.

Note! A deed of gift can be drawn up by a notary, but an additional fee will be charged for this. The cost of technical services is set by regional notary chambers.

Calculation example:

A woman transfers a share in the apartment to her daughter as a gift; the agreement contains a condition for permanent residence. The property was purchased in marriage with the donee’s father, but despite this, his consent will be required.

The cost of the share is 2,000,000 rubles.

2,000,000 x 0.5% = 10,000 rubles.

There is an additional cost for proof of the spouse's consent.

The total amount of expenses will be: 10,000 + 500 = 10,500 rubles.

Do I need to pay personal income tax?

Receiving a gift is a material benefit for the recipient. According to tax legislation, he has an obligation to pay personal income tax on such income in the amount of 13% of the cadastral value of the residential property.

Find out more

An exception is the case of donating property in favor of close relatives. In this case, they are exempt from taxation. The circle of close relatives is established by the Family Code in Article 14.

How to draw up a gift deed with lifelong residence: step-by-step instructions

The donation procedure begins with a discussion of the terms of the transaction. The donor tells the donee about his intention to transfer the property subject to permanent residence, the latter gives his verbal consent or refuses the transaction.

If both parties are satisfied with the conditions, you need to decide when and where to formalize the contract. Let's see how everything looks step by step.

Step 1: drawing up a contract

You can draw up a deed of gift yourself, contact a lawyer or a notary.

Even if it requires notarization, the parties have the right to formalize everything without it, and come to him only for signing.

Sample deed of gift

The contract must contain complete information about the transaction:

• Full name, series and numbers of passports, dates of birth, registration addresses of the parties;
• information about the donated property: address, area, floor, cadastral number;
• details of the document confirming the donor's ownership;
• cadastral value of the property;
• conditions of lifelong residence;
• gift of use of property;
• rights and obligations of the parties;
• date of compilation, signature.

The deed of gift is drawn up in three copies. The donor and recipient each receive one, the third is transferred to Rosreestr to register the transfer of ownership.

Sample agreement for the donation of an apartment with the right of lifelong residence of the donor: alt: Agreement for the donation of an apartment with the right of lifelong residence for the donor

Consultation on document preparation

Documentation

To draw up a deed of gift, you will need the passports of the donor and the donee, and other documents:

• a purchase and sale agreement, a certificate of inheritance or other document confirming the origin of the donor’s ownership rights;
• extract from the Unified State Register of Real Estate;
• cadastral passport for a land plot (not needed to donate an apartment);
• notarized consent of the spouse.

If a child is involved in the transaction, you need to take a birth certificate.

Step 2: visit a notary

To certify the DD, contact a notary at the location of the donated property. You will need the documents listed above.

This step is skipped if notarization is not required.

Legal advice: it is better to certify the deed of gift - this will reduce the risks of challenge. The presence of a notary's signature and seal confirms that the parties were legally capable at the time of signing and the transaction was not made under pressure from the donee.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Step 3: visit Rosreestr

When the DD is ready, you need to submit documents to register the transfer of ownership.

To do this, the donor and recipient should come to Rosreestr or the MFC and submit an application - it is filled out on the spot. Registration is carried out at the address where the property is located.

Documentation

To register, you will need the documents listed above. Additionally, the gift deed itself is provided.

A receipt for payment of the state fee is not needed, but it is better to take it to confirm the payment if necessary, if the specialist does not see it through the internal database.

State duty

The duty for individuals is 2,000 rubles, for enterprises – 22,000 rubles.

Step 4: obtaining an extract from the Unified State Register of Real Estate

After submitting the documents, 10 days must pass - this time is given for re-registration of the owner.

After the specified period, you need to come to the MFC or Rosreestr for an extract from the Unified State Register, where the donee will be indicated as the new owner.

Current standards

Legal regulation of the donation process is carried out in accordance with the following legal acts:

Also, the parties should pay attention to the materials of judicial practice if a controversial situation arises between them.

A donation can be challenged, but certain circumstances must be present; practice will allow you to better analyze the situation.

Sale of an apartment in which the donor lives

The donee has the right to sell the property at any time after registration of ownership. The donor's consent is not required for this, and he has no right to create obstacles.

It is enough to notify the potential buyer of the retention of the right of residence after the conclusion of the purchase and sale agreement.

Some buyers subsequently try to challenge the residence, but the courts rarely grant such claims. The fact is that buyers are warned in advance about the presence of such an “encumbrance”, and they have the right to refuse the transaction. If they agree, they accept the seller’s terms.

Statute of limitations

This transaction can be challenged within the limitation period. It will be one year if the transaction is declared voidable or invalid and three years if the transaction is void.

In this case, it is necessary to correctly understand the rules for applying the statute of limitations. Thus, the limitation period applies only if the defendant declares the need to apply it; the court does not have the right to initiate it independently.

If the defendant does not use this right, then the court may declare the transaction invalid or void at the end of the term.