How to allocate a share of an apartment or house to children for maternity capital under a gift agreement

Home » Housing disputes » Agreement on donating a share of an apartment to children based on maternity capital

Many Russian families with two or more children have already appreciated the opportunities that a maternal certificate (MC) gives them, while most families use MC funds to purchase housing or improve their living conditions. But when buying housing using MS, there is a mandatory condition: part of the residential premises purchased or improved with maternity capital must be transferred to the ownership of the children. The most optimal way to transfer a child's share when buying a home using MS is to draw up a gift agreement.

Sample agreement for donating a share in an apartment to minor children: all the design features

Also, if the gift of a share in an apartment to children occurs in a family, then both spouses must agree to this transaction.
For example, a father bought an apartment and decided to give its share to his son from his first marriage. But his current wife is against such an action and does not give her consent. The content of this document is always the same, so you can easily find a sample agreement for donating a share in an apartment to a minor child on the Internet. But it’s also worth remembering that you must edit the contract to suit yourself, some things you need to include and some you don’t.

Where to take it, to whom to give it?

Having decided on the size of the shares, parents begin to choose the method of approving the deed of gift.

There are 3 ways to draw up a gift deed:

Notarial office

The institution provides services for the preparation, certification and registration of agreements. Previously, it was possible to do without a notary. However, starting from 2021, the transfer of shares undergoes mandatory verification by notaries (Federal Law No. 172 “On Amendments...”).

Therefore, in most cases you will still have to visit the clerk. The notary will select a draft agreement, formalize the agreement, check the sanity of the parties, mutual desire and affix the necessary stamps. And from February 1, 2021, notaries will submit documents for registration to Rosreestr free of charge. Previously, you had to pay for this service, but now you don’t.

On one's own

If you plan...

transfer a share in an apartment to one owner;
The spouses want to allocate the children's shares from the apartment in joint ownership...

…it is not necessary to contact a notary. To draw up a gift agreement, you will need skills in working with paperwork. Download the form and sample contract for 2021 from our website.

You can also download a sample agreement for donating a share of an apartment to children, but without using maternal capital.

Lawyer

There is no more reliable way than to seek help from a lawyer. The specialist will tell you what to include in the contract, how to calculate the shares, where is the best place to formalize the deal and how much will it cost? We recommend taking advantage of a free consultation on our website.

Example: The Zhurbins were figuring out how to give shares of an apartment to their two children. The wife had a daughter from her first failed marriage. The Zhurbins' joint child was born after the creation of the family union. The couple received a certificate for the use of maternal capital. According to the rules for receiving MK, funds are allocated for the birth of a second child. Since the Zhurbins received maternity capital after the birth of their common child, they undertook to allocate the share of their wife’s daughter from her first marriage. It was decided to transfer the shares through a gift agreement to the children.

It’s easy to draw up an agreement for donating shares to children

the residential premises were purchased in legal marriage and are jointly acquired property
the residential premises were purchased in the name of the children’s mother, who is not in a legal marital relationship
the residential premises were purchased by the father/mother of the children on a mortgage before marriage and the loan or part of it was paid for using Maternal (family) capital or other government subsidies allocated to improve housing conditions for families with children

Recent changes in the law “On State Registration of Real Estate” and the Family Code of the Russian Federation have greatly “confusing” the situation with the allocation of shares from property rights. Therefore, before you receive information directly on drawing up a gift agreement, you need to figure out in what case you cannot do without a notary.

Rules for purchasing an apartment

Maternity capital means a non-cash amount that the state allocates in the form of a certificate to a young family if it has two or more children. The family is allowed to spend the allocated funds only for the purposes indicated in the Program, which serve to strengthen the family and pursue the interests of not only parents, but also their children.

Expert commentary

Kolesnikova Anna

Lawyer

The main percentage of funds received under the certificate is spent by young parents on the purchase of their own residential property. Control and issuance of capital in the form of a certificate for resolving issues with the purchase of your own home, as well as other needs, is carried out by the Pension Fund of the Russian Federation. To receive a certificate, a young mother must apply to the Pension Fund of the Russian Federation, indicating what needs she intends to spend it on.

Next you need:

find an apartment suitable for a family;
contact the appropriate bank and request a list of necessary documents to allocate the amount necessary to purchase the selected home;
after collecting and presenting the necessary documents, a contract for the purchase of the selected apartment is drawn up together with bank employees;
after registering the transaction specified in the agreement, the bank buys the selected apartment from the seller;
one copy of the drawn up agreement is presented to the Pension Fund. It is the basis for transferring maternity capital funds to the payer bank.
After the amount is received by the bank, the encumbrance on the apartment is removed and the selected property becomes family property.

How to draw up an agreement for donating a share of an apartment to children using maternity capital: sample document

Despite the fact that Borisov’s daughter from her first marriage also lived in the family, the obligation was registered only in the name of Borisov’s own daughters and the regulatory authority did not have any claims, since the applicant and her husband’s daughter were not connected by any ties - neither blood nor legal, such as adoption.

Donation is also one of the ways to give small family members shares in housing purchased with government subsidies. Assigning the status of co-owner to the children is mandatory - this is exactly what the parent signed when submitting a notarial undertaking to the Pension Fund so that it would approve the transaction.

Agreement for donating a share of an apartment to children using maternity capital

Another important point is the provision for payment of expenses. This includes notarization of deeds of gift and state registration of property rights. Typically, the burden of expenses falls on the beneficiary. However, the parties to the transaction can change the established procedure.

The gift agreement is concluded in writing and is subject to notarization. At the same time, the parties to the agreement must take into account the requirements of the Federal Law dated December 29, 2006 No. 256-FZ. To avoid mistakes and waste of time, it is advisable to consult a lawyer. Several specialized specialists work on our website. A request for a call back is submitted through the online form.

We recommend reading: Selling an apartment registered in the name of a child

What is the essence of innovation?

Thus, from July 31, 2021, notarization is not required when concluding a transaction for the alienation or mortgage of shares in residential premises, if the transaction is carried out simultaneously with all owners .

In other words, an agreement for the purchase and sale, gift, inheritance or mortgage of shares can be concluded in simple written form if signed by all share owners of the property without exception.

If you previously registered common joint property for spouses or sole property for one of the parents, and now you have to allocate shares to all family members, now you don’t need to go to a notary!

It is enough to draw up an Agreement on DETERMINING shares in simple written form, which indicates the size of the share of each family member. This agreement, together with an application for registration of shared ownership, must be submitted to Rosreestr.

Sources

https://ZaNasledstvom.ru/darenie/darenie-kvartiry-s-ispolzovaniem-materinskogo-kapitala/
https://pravo.guru/gilishnoe-pr/nedvigimost/kvartira/darenie-kvartiry/dolja-dar/dokumenty-pri-darenii-doli/dogovor-dr-dl/po-materinskomu-kapitalu.html
https://law-divorce.ru/dogovor-dareniya-doli-kvartiry-detyam-po-materinskomu-kapitalu/
https://dogovor-darenija.ru/darstvennaya/sostavlenie/dolej-zhilya-detyam/
https://allo-urist.com/dogovor-dareniya-doli-kvartiry-detyam-po-materinskomu-kapitalu/
https://zakoniurist.ru/dogovor-dareniya-dolej-kvartiry-materinskij-kapital-obrazec.html
https://darstvennaja.ru/darenie-nedvizhimosti/doli-zhilya-detyam/
https://xn--80atfo.xn--p1ai/%D0%B2%D0%BE%D0%BF%D1%80%D0%BE%D1%81%D1%8B/%D0%B2%D1% 8B%D0%B4%D0%B5%D0%BB%D0%B5%D0%BD%D0%B8%D0%B5-%D0%B4%D0%BE%D0%BB%D0%B5%D0%B9 -%D0%B4%D0%B5%D1%82%D1%8F%D0%BC-%D0%B1%D0%B5%D0%B7-%D0%BD%D0%BE%D1%82%D0% B0%D1%80%D0%B8%D1%83%D1%81%D0%B0/

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Agreement for donating a share of an apartment to children using maternity capital

Gifted children under 14 years of age cannot sign the contract themselves, so one of the parents does this for them. Teenagers over 14 years old sign with their own hands, but in the presence of a legal representative. If only the mother is involved in the transaction, an employee of the guardianship authority can act as the child’s representative.

Errors, typos and other inaccuracies in filling out the gift agreement - especially when drawn up independently.
Incorrect object of donation or incorrect calculation of shares.
Lack of documentation.
Lack of documents for the apartment or for the transferred share.
Lack of information about the maternity capital certificate.
Violation of the minimum and sanitary standards of living space per child (the average is 12 square meters, and the minimum is 6 square meters).

Agreement on donating shares to children for maternity capital

The distribution of shares to children occurs after state registration of ownership of these shares. Part 3 Art. 574 of the Civil Code of the Russian Federation establishes a rule on mandatory state registration of a real estate donation agreement. This provision directly applies to the donation of shares of real estate acquired using maternity capital.

The question often arises about how to allocate shares to children of those mothers who do not have a husband (died, disappeared, etc.) or she is a single mother (that is, there is no second legal representative who can accept property on behalf of the child as a gift). In such cases, the Rossreestr often refuses to register contracts, since the mother acts both for herself personally (as the donor) and for her minor (under 14 years old) children (the donee).

Consequences of failure to fulfill contract obligations

So, you have entered into a gift agreement. What happens if obligations are violated?

A person who violates an obligation under a gift agreement may face the following:

The court will force the donor to comply with the terms of the agreement.
A fine or other administrative penalty may be imposed on the violator.
The Pension Fund will require the return of the entire MS amount.
The court may seize the property of the offender, including an apartment, a share in which should be gifted to the minor.
In particularly difficult situations, the offender may face criminal punishment in the form of a suspended sentence.

For example, Nadezhda and Maxim Potapov spent MS funds on the last payment on a mortgage loan to purchase a three-room apartment. After the encumbrance in the form of a pledge was removed, the couple issued deeds of gift for shares of the apartment for their two sons. But, after more than six months, the parents still did not bother to visit Rosreestr and register the donated shares as the property of the children, that is, in fact, the children never became the owners of their square meters.

The guardianship and trusteeship authorities reminded the Potapovs several times that they were obliged to register their sons' ownership of shares in the residential premises, but the spouses did not react in any way. PLO employees contacted the Pension Fund, which, in turn, demanded that the Potapov spouses return the entire amount of the MS.

Only after the PF demand did the spouses realize that the PLO were serious in their demands and turned to Rosreestr to obtain an extract from the Unified State Register of Real Estate.

A donation agreement for a share of an apartment using maternity capital is not just a document about the desire to donate part of one’s property to a child. This is a voluntary decision to transfer ownership of part of the residential premises acquired using MS to a minor citizen, therefore the implementation of this decision will be closely monitored by the guardianship and trusteeship authorities and the Pension Fund.

If you are experiencing even the slightest difficulty with paperwork, or do not understand where to start, it is better for you to seek help from professionals. On our website you will find this help if you contact specialists online or call the numbers provided.

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Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Maternity capital and mortgage: how to properly apply for children

Despite the fact that the legal representatives of children are their parents, in this situation they cannot decide for minors. This is due to the desire to prevent fraud among adults.
Young heirs cannot decide for themselves, since they are legally incompetent.
Unlike adults, it is impossible to discharge children from the apartment for several months; the maximum period is 1-2 weeks. And, although in case of moving to another city, the period may be increased, it is still too short.

Parents’ passports and children’s birth certificates, as well as SNILS and marriage certificate if the parents are married;
Documents confirming the owners' rights to the apartment: for example, a purchase and sale agreement;
Extracts from the Unified State Register and house register;
Cadastral passport, technical documentation;
Certificate of maternity capital;
A certificate from the housing and communal services department stating that the family has no payment arrears;
An extract from the bank stating that the apartment was under mortgage;
Consent of the second spouse or the guardianship department for the gift.

Form and content

The agreement for donating shares of real estate to children is written in the first person. In the plural or singular - depends on whether there is one owner or two. For example, there is a living space where there are two co-owners - husband and wife and two recipients.

Then, first, information is written about each co-owner, who will later be called “donors” , then about each of the children, who, accordingly, are called “donees .

The content of the agreement must indicate :

city of registration and year;
passport details of the donors, where they are registered, series, number and date of issue of the identity card;
the phrase that parents, being of sound mind and good memory, of their own free will donate part of their property;
By what right do the parents own these square meters, what document confirms this, when was the certificate of ownership received?
what part goes to the recipients;
characteristics of the living space - at what address, on what floor of which house it is located, how many rooms it has;
cadastral number of the living space;
information about the absence of encumbrances. The living space, part of which is donated, should not be seized, nor donated, nor be under collateral; in general, there should be no claims to it by other persons;
who is registered in this territory?
references to legislation - namely: that donors are familiar with the articles of the Civil Code of the Russian Federation (131, 209, 223, 572-580, 162);
data on the transfer of the specified pieces of territory into ownership after registration of the agreement in Rosreestr;
in how many copies is the document drawn up (in this situation, five are required: one for each co-owner and one will have to be transferred to the territorial division of the Office of the Federal State Registration Service, where it is planned to register the agreement);
signatures of participants. Their representatives sign on behalf of minors.

After this, the transaction should be registered with the Registration or Cadastral Chamber at the place of residence. You can also use the services of Multifunctional).

Read our article about the execution and registration of a donation transaction in Rosreestr [anchor href=»pravovoy-standart.ru/gilishnoe-pr/nedvigimost/kvartira/darenie-kvartiry/dokumenty-dar/dogovor-dr-kv/rosreestr.html»] .

How to draw up an agreement to donate a share to children using maternity capital

Through a notary office, where you will need to conclude and approve the final point of transfer. It is worth preparing a certificate about the amount of housing in advance.
Draw up a contract yourself. By dividing all property in equal parts among all children. Submit the document to Rosreestor.

All details of the apartment owners. Usually there are two of them - the mother and father of the children.
In the future they are indicated as donors.
Birth certificate of all children, indicating their recipients.
The city where the act of donation takes place.
Day month Year.
Full passport details.
It is necessary to write that the act of donation occurs independently and in sound mind.
Indicate how and with what funds the property was purchased.
Document the specified data.
Fully describe the condition of the property.
Apartment or house number.
Confirm that the property has no liens or has not previously been donated by previous owners.
Registration records of all persons participating in the process
Data indicating all shares that are registered by Rosreestr.
Specify the number of copies of the agreement
Signatures of all participants.

We recommend reading: What documents are required to check out of an apartment?

It’s easy to draw up an agreement for donating shares to children

An agreement on donating shares to children can be used to fulfill the obligation to provide children with shares in the right of shared ownership of residential premises - apartments, houses, rooms. It is only important to allocate shares to children in exactly the residential premises specified in the obligation - that is, purchased using funds from Maternity (family) capital or funds from other government subsidies to support families with children.

What is the price?

So, we found out that in most cases, the agreement for donating a share to children must be certified by a notary. It remains to determine how much his services will cost?

The deed of gift for the transfer of a share to children is subject to assessment, since it allows one to calculate the value of the alienated part of the property (Article 22 of the “Fundamentals of the Legislation of the Russian Federation on Notaries”).

Parents will have to pay a state fee: 0.5% of the price of the shares, but not less than 300 rubles, and not more than 20,000 rubles.

Notary services are assessed according to other criteria: technical and legal work with documents . This includes a request to government agencies, printing, going to archives, checking the legal purity of the transaction, and more - the total amount reaches 3-7 thousand rubles.

Even if you do not contact a notary, costs cannot be avoided. The main one is the state duty for registering a transaction in Rosreestr. The cost is 2,000 rubles per recipient, but in the case of children, the fee is paid by the parents.

Execution of a donation agreement for an apartment or its share in the name of minor children

The deed of gift in the name of the child (children) is drawn up in writing. You can do this yourself, or contact a trusted specialist, which will be more correct, since an incorrectly drawn up agreement can subsequently be declared void, as a result of which the child will be left without an apartment.

The donor's passport and the child's documents (certificate or passport);
Cadastral passport for the transferred apartment;
Results of the apartment assessment carried out by the BTI;
Papers confirming that the apartment is the property of the donor;
Extracts from personal accounts and house books;
Consent of the donor's spouse;
Consent of the child's parents/guardians/trustees;
Certificate of persons registered in the apartment, as well as information about the donor’s family;
State duty receipt;
Application from the donor requesting the transfer of ownership;
Application from the donee requesting registration of his rights to the received property.

Agreement for the donation of housing shares to children when purchasing with maternity capital

The legislation of the Russian Federation does not indicate a certain size of the child’s share , which must be reflected in the obligation and then allocated. But at the same time, the Housing Code of the Russian Federation talks about the norm of total living space per person . This norm may vary depending on the region of the Russian Federation.

To do this, you need to formalize an obligation to allocate shares in real estate at a notary’s office. The allocation of shares itself is possible by drawing up an agreement or gift deed, which are subject to state registration. However, the legal consequences of drawing up these documents differ .

About the possibility of registration

Maternity capital, according to the law, is nothing more than the common property of parents and children .

Square meters purchased with its help are registered as shared ownership (Federal Law No. 256-FZ of December 29, 2006).

Simultaneously with this law, such a term as the obligation of parents to allocate a share in real estate to the child was adopted.

This can be done in two different ways :

a notarial obligation is drawn up and then an agreement is drawn up on the allocation of shares in the purchased real estate, the owner of which is the father or mother, or a donation of a part of their property by the father or mother is formalized;
a new living space is purchased, one of the co-owners of which will be a son or daughter.

The obligation is fulfilled in relation to all registered family members - that is, either natural or adopted children.

Strictly speaking, a purchase in shared ownership is also a donation, only it is formalized differently than a traditional deed of gift.

A mortgage will not be issued against this capital. It can only be used later as a means of repayment!

Donating shares to children when purchasing housing using maternity capital

In order to transfer to their minor children a share in housing purchased with funds from maternity capital, parents must enter into a gift agreement . As a rule, when purchasing real estate, it is registered as the joint property of the spouses. Subsequently, parents are obliged to transfer part of such property to their children.

However, in addition to rights, parents also acquire a number of responsibilities, and one of them is to allocate a share when buying a home using mat funds. capital. The parents themselves decide in what way this obligation must be fulfilled - they have the right to draw up an appropriate notarial agreement or enter into a gift agreement .

How can you fulfill your obligation to allocate a child’s share?

The choice of method and deadline for fulfilling the obligation given by the parents to allocate the children’s share depends on several factors:

residential real estate is purchased ready-made or under construction (reconstruction);
exactly how housing is purchased (purchase and sale, mortgage loan, etc.), that is, in accordance with what agreement the Pension Fund transfers funds to the MS;
which spouse at the time of purchase is declared the title owner, that is, for whom the documents are drawn up during the procedure for purchasing or reconstructing a residential premises.

According to the existing rule, the main (title) owner of the apartment must transfer the residential premises into common ownership no later than six months after:

The Pension Fund of the Russian Federation transferred the MS funds to the seller - in the case of a purchase and sale transaction and registration of ownership;
the last installment has been paid - in case of installment payment according to the purchase and sale agreement;
The mortgage loan has been fully repaid and the encumbrance in the form of collateral has been removed – when purchasing a residential property with a mortgage;
a cadastral passport for a residential premises was obtained - during the construction of a new individual housing construction project or an apartment building;
The last contribution to the housing cooperative has been paid - if the family participates in a housing construction cooperative.

For example, the Novikov family entered into an agreement to participate in a housing construction cooperative; they regularly paid all fees for three years. Then their second child was born, the child’s mother received MS, which the family decided to invest in housing construction. They paid the last installment to the housing cooperative ahead of schedule and were able to register ownership of the residential premises. Since the agreement on participation in the housing cooperative was concluded only by the parents, they drew up an obligation to allocate mandatory shares to the children. The Novikovs visited a notary's office and issued deeds of gift for each of the children.

It is not always the parents themselves who can choose the option of distributing shares and transferring the children’s share into ownership. Registration of donation of a child's share is possible in the following cases:

the property is owned by the parents as joint property;
the mother is the owner of the premises, while the parents are divorced;
the apartment is owned only by the mother or father according to the marriage contract.