Preliminary agreement for the donation of a share of an apartment

What is a preliminary gift agreement?

A preliminary gift agreement (hereinafter referred to as DD) is a document according to which one party (the donor) undertakes to conclude a main agreement with the second party (the donee).

Unlike a standard deed of gift, a preliminary deed of gift has several features:

1. In a regular DD, the subject of the transaction is the property being transferred. In the preliminary stage, it is the obligation of the parties to draw up the main agreement.
2. The preliminary DD is drawn up in the same form as the regular one.
3. It is mandatory to indicate the period during which the parties must conclude the main DD. If there is no such period in the document, it is considered that the transaction must be concluded within 1 year from the date of registration of the preliminary DD.
4. The obligations provided for in the preliminary agreement are canceled if the main DD is not concluded within the established time frame.

Briefly: the preliminary gift agreement is drawn up in a similar basic form and contains complete data on the transferred values ​​or real estate. This is a completely free transaction. The presentation by the donor of counterclaims to the donee entails the recognition of the DD as invalid (Article 572 of the Civil Code of the Russian Federation).

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

Why enter into a preliminary gift agreement?

Most often, such acts are concluded in cases where the parties do not have the opportunity to carry out this important transaction, on which a business can sometimes depend (for example, when donating a share in an LLC) or even a person’s life (for example, gift money is needed to pay for an urgent treatment). Such situations, unfortunately, are not uncommon. This type of preparation for a transaction is regulated by the provisions described in Article 429.

Essence : So, in order to ensure that the transaction under discussion will definitely take place in the future, experts recommend that the parties enter into a preliminary gift agreement, according to the listed conditions of which the deed of gift will be signed even if one of the participants refuses.

In the practice of lawyers, there was a case when the donor and donee were forced to sign such a deed, since it took much more time to prepare the papers necessary for the transaction than the participants had. At the same time, the property had to be put into use by the recipient much earlier than the deadline for preparing construction documentation.

But this does not mean that a preliminary agreement may not be needed in ordinary situations. To do this, it is worth considering in more detail the concept of donation itself.

Preliminary agreement form

The provisions of Art. 429 of the Civil Code of the Russian Federation, according to which it is drawn up in the same form as the main one:

• written form is required when donating real estate or transferring a gift worth more than 3,000 rubles. from a legal entity;
• It is planned to conclude a contract of promise of gift.

If you want to donate property other than real estate, an oral form is sufficient. Such an agreement is considered valid from the moment of execution:

for example, when handing over the keys to a car, etc. For such transactions, written form is not required, but if you wish, you can formalize the transaction on paper - this is not prohibited by law.

Legal advice: it is better to formalize any agreements in writing. An oral promise to donate a valuable thing or to enter into a deed of gift in the future has no legal force.

Elena Plokhuta

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

How to correctly draw up a contract for the promise of a gift in the future and what is needed for this?

How to correctly draw up a deed of gift for a land plot?

How to correctly draw up a preliminary agreement for the donation of a share of an apartment

You can draw up a preliminary gift agreement:

• independently - you will have to study the current legislation, the requirements for drawing up draft agreements, and, finally, familiarize yourself with the sample of such a document provided on our website;
• from a professional lawyer - you will describe your situation to him and provide the available documents, and he, for a fee, will draw up the necessary document;
• from a notary - he has the right not only to certify ready-made contracts, but also to draw them up “from scratch” - you will have to pay for the provision of the service (it is called a service of a technical-legal nature).

When drawing up a document, it is important to remember that a preliminary gift agreement is not a deed of gift in the usual sense. The features of such an agreement are as follows:

1. the subject of a regular gift agreement is the property being donated; preliminary agreement – ​​the obligation of the parties to conclude a gift agreement in the future;
2. it must indicate the period during which the main agreement will be concluded; if there is no such indication, the agreement must be concluded within a year from the date of execution of the preliminary agreement (clause 4 of article 429 of the Civil Code of the Russian Federation);
3. If the deadline for concluding the main agreement is not met, the obligations assumed by the parties are canceled (Clause 6, Article 429 of the Civil Code of the Russian Federation).

Preliminary agreement for donating a share of an apartment to a minor (sample)

Preliminary agreement and agreement of promise of gift: differences

Many people confuse these contracts, although there is a significant difference between them in terms of the subject of the transaction.

In a pre-contract, it is the intention of the parties to conclude the main DD within a specified period of time, and in a promise contract - to transfer specific property to the donee on a certain date.

The only thing they have in common is that transactions are free of charge and the consent of the donee is mandatory. Based on Art. 573 of the Civil Code of the Russian Federation, he has the right to refuse the gift. This rule also applies to the pre-contract. If it is in writing and the refusal is in writing. In other cases, an oral form is sufficient.

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Preliminary agreement for the donation of a share of an apartment

“This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement, and supersedes and invalidates all other obligations or representations that may have been accepted or made by the parties, whether oral or written, prior to the conclusion of this agreement.”

Citizen of the Russian Federation _______________________ _________ born passport series _____ No. _________, issued by the Novomoskovsk District Department of Internal Affairs of the Tula Region __________, department code _______, registered at the address: ________________________, hereinafter referred to as “Donor”

Is it necessary to register a preliminary agreement?

Registration of the pre-contract is not required. This is only necessary when transferring ownership of real estate free of charge. This is also stated in paragraph 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59: even if it is planned in the future to draw up the main DD subject to registration, the pre-contract should not be registered - the registration authority will simply refuse this.

Important! The conclusion of a pre-contract does not necessarily mean the transfer of ownership of the property to the donee. The parties, by mutual agreement, can refuse to execute it, so registration is not relevant.

Preliminary agreement for donating a share of an apartment to a minor

In no case should you make spelling mistakes, as if there are any, the registration authority staff will not accept the documents in vain. If you are printing an agreement for donating a share in an apartment to a minor child on a computer, then you should be aware that it must be printed in a standard font, and the letters should not exceed size 14.

and a citizen of the Russian Federation ______________________ __________, Birth Certificate ____ No. ________ dated __________, represented by the legal representative of a citizen of the Russian Federation _______________________, hereinafter referred to as the “Done”, and collectively referred to as the “Parties”, have entered into this agreement as follows:

What can you give?

A pre-contract is concluded with the intention to subsequently draw up the main deed of gift, under which movable and immovable property can be donated. Let's look at everything in more detail.

Automobile

To donate a vehicle, a written form is not required if the donor is an individual. But it is better to draw up everything on paper: this will make it easier to prove the intention to draw up a deed of gift within a specific time frame.

Land plot

If the donor owns a plot of land purchased during marriage, the notarial consent of the spouse is drawn up along with the pre-contract. In this case, the main DD must also be certified by a notary.

Important! All buildings on it are alienated along with the site. They must also be indicated in the pre-contract.

Residential building and land

You have the right to donate a private house, but along with it, the plot on which it is located will also become property.

Alienation of only one type of property in this case is unacceptable. This must be taken into account when drawing up a pre-contract.

Apartment

The apartment is classified as real estate, and all contracts involving its alienation are concluded in writing. You can donate either the entire living space or part of it.

First, the donor needs to allocate a share in the common property right and register the changes in Rosreestr.

Money

Any currency can be given orally, but if desired, the parties can create a written deed of gift.

In this case, the pre-contract is also drawn up on paper. It is not necessary to have it certified by a notary.

Preliminary agreement for the donation of a share of an apartment

“This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement, and supersedes and invalidates all other obligations or representations that may have been accepted or made by the parties, whether oral or written, prior to the conclusion of this agreement.”

Citizen of the Russian Federation _______________________ _________ born passport series _____ No. _________, issued by the Novomoskovsk District Department of Internal Affairs of the Tula Region __________, department code _______, registered at the address: ________________________, hereinafter referred to as “Donor”

Who can I give it to?

Any person has the right to act as a donee. If he is between 14 and 18 years old, he signs the contract independently, but with the consent of his parents. Transactions involving children under 14 years of age are carried out only by parents.

Close relatives

Close relatives should be understood as parents, brothers, sisters, children, grandparents, and spouses. You can give them any things and real estate.

For a minor child

If the recipient is a child under 18 years of age, you will have to obtain the consent of his parents or guardians. When donating real estate, you need to register the transfer of ownership, but on the basis of a standard deed of gift, and not a pre-contract.

There is no need to obtain permission from the guardianship authorities, because here the property status of the minor does not worsen, but, on the contrary, increases.

The exception is if the child is under guardianship: in this case, all transactions with him are carried out under the control of this body.

To other persons

A pre-agreement on the intention to draw up the main DD can also be drawn up with a stranger who is not a relative: a friend, girlfriend, acquaintance, etc.

Family ties in such transactions are important only when receiving property under a standard deed of gift - in this case, a non-relative will have to pay tax.

Agreement for donating a share of an apartment to a minor child

The main difference between a deed of gift if the recipient is a minor is the impossibility of disposing of it before the age of eighteen. That is, in fact, the minor acquires the right of ownership immediately after registering this right with the relevant authorities, but this does not automatically entail the emergence of the right to dispose of this property.

Note! The information in this article may not be complete due to frequent changes in legislation. In addition, your specific situation may require a more detailed study. Therefore, we advise you to consult with our specialists by phone: in Moscow, in St. Petersburg, throughout Russia 8 (800) 511-81-26 - it’s free, anonymous and professional!

We recommend reading: Sale of a non-privatized share in an apartment

How to draw up a preliminary gift agreement: step-by-step instructions

The procedure for drawing up a pre-contract consists of several stages, which will be discussed below.

Step 1: agree on the deal

First you need to agree on a deal with the recipient - do not forget that he has the right to refuse the gift.

It is recommended to stipulate in advance when the main deed of gift will be drawn up and what will become his property.

Step 2: drawing up a pre-contract

You can draw up a pre-contract yourself or seek help from a lawyer.

In the latter case, the document will be drawn up as competently as possible. Incorrect execution significantly increases the likelihood of challenging the transaction.

Documentation

When signing the pre-contract, you must have with you all the documents for the alienated “gift”.

The list of main documents includes:

• passports of the parties;
• power of attorney, if an attorney acts on behalf of the donor or recipient.

The additional package depends on the subject of the transaction:

Sample preliminary donation agreement

The pre-contract must include information about:

• Full name, registration addresses, passport details of the parties to the transaction;
• date of drawing up the main contract (the most important point);
• gift: address, value, etc.;
• conditions for drawing up and content of the main deed of gift.

At the end, the parties sign. Indication of the date of registration is mandatory - the period during which the deed of gift must be drawn up is counted from it.

Sample preliminary donation agreement:

Consultation on document preparation

Step 3: Notarization

If the main DD is subject to certification by a notary, then the pre-contract is also certified. In other cases, the parties can contact a notary office if they wish.

Legal advice: it is better to have the deed of gift certified by a notary. This will simplify legal proceedings if one of the parties refuses to perform. The notary's signature will confirm that the donor and donee were legally capable at the time of the transaction, and no psychological or physical pressure was exerted.

Elena Plokhuta

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

Briefly: the parties have the right to independently draw up a pre-contract, and, if necessary, contact a notary. There is no need to register the transaction.

Features of a contract for donating a share in an apartment to a minor

When transferring real estate through a gift, the donor must take into account:

In order to donate a share in an apartment, it is necessary to conclude a written donation agreement that is gratuitous in nature. The preparation of this document in relation to children is carried out according to general rules.

The law establishes two ways of registering a deed of gift, which do not in any way affect the legal force of the document, namely:

When donating a share of an apartment to children, one should take into account the fact that if the recipient is under 14 years of age at the time of concluding the agreement, then he does not have the right to put his signature on it; all powers will be exercised by a legal representative or a guardianship and trusteeship body.

If the child is a minor over 14 years of age, then he will be able to represent his interests himself, but with the obligatory written consent of the parents or persons replacing them.

Termination of the preliminary agreement

The pre-contract is automatically terminated if obligations are not fulfilled within 1 year or another period specified in it. When drafting, it is recommended to immediately indicate under what conditions the parties can terminate the transaction voluntarily.

Other grounds for termination:

• presence of encumbrances: seizure of property, being in collateral;
• discovery of shortcomings in the “gift”, about which the donor did not warn in advance;
• commission by the donee of a deliberate crime against the life and health of the donor.

If the possibility of voluntary termination is not specified in the pre-contract, it can be canceled in court. According to Art. 445 of the Civil Code of the Russian Federation, one party has the right to seek registration of a deed of gift through the court if the second refuses this. A claim for forced conclusion of a transaction can be filed within 6 months from the date on which the obligations were to be fulfilled.

In short: you can’t just change your mind about fulfilling the terms of the pre-contract - the other party will be able to achieve forced conclusion through the court.

Preliminary agreement for donating a share of an apartment to a minor

This section specifies the method of transferring a gift (Article 574), the period, and the need to conclude a deed of transfer. The need for this comes from the fact that a gift agreement can be both real and consensual. The algorithm for state registration of the transaction is also recorded here.

• Procedure, form and grounds for changing/terminating a deed of gift.
• Dispute resolution. With this clause, the parties determine the obligation, terms and form of pre-trial settlement of disagreements that have arisen, as well as cases of going to court.
• Other conditions. They contain information about the number of identical copies of this agreement and documents that are annexed to the deed of gift.
• Details and signatures of participants.

1. The recipient has the right to refuse it at any time before the gift is transferred to him. In this case, the gift agreement is considered terminated.
2. If the gift agreement is concluded in writing, the refusal of the gift must also be made in writing. If the gift agreement is registered (clause 3 of Article 574), refusal to accept the gift is also subject to state registration.
3. If the gift agreement was concluded in writing, the donor has the right to demand from the donee compensation for real damage caused by refusal to accept the gift.

We recommend reading: How to register a building on a site

and a citizen of the Russian Federation ______________________ __________, Birth Certificate ____ No. ________ dated __________, represented by the legal representative of a citizen of the Russian Federation _______________________, hereinafter referred to as the “Done”, and collectively referred to as the “Parties”, have entered into this agreement as follows:

Recognition of the preliminary agreement as void

A pre-contract is considered void if its content does not correspond to the legal consequences.

There are other reasons:

• execution of a document by an incapacitated person;
• non-compliance with the established form;
• lack of reference to the item - the intention to draw up a deed of gift within a certain period.

The court may declare the pre-contract void upon the application of one of the parties - the donor or donee, or a third (interested) person.

Arbitrage practice

The practice of declaring pre-contracts void or terminating is small, but it is worth considering one example when the request to annul a transaction was satisfied by the court:

The woman drew up a pre-contract with the donee to draw up a deed of gift for the land plot. According to the terms of the deal, the main DD must be completed within six months. Until this moment, the recipient arrived at the site and realized that it was impossible to carry out construction on it: high-voltage wires were installed in a place suitable for building a house, and there was no possibility of conducting engineering communications.

Before drawing up the pre-contract, the donor assured that it was possible to build on the land without any problems. The recipient contacted the gas and electricity service, where she was given a certificate prohibiting construction on the donated site.

The recipient approached the donor with a written proposal to terminate the pre-contract, indicating the reasons. There was no response within 30 days, and then the woman went to court, presenting evidence. The claims were satisfied.

Preliminary agreement for donating a share of an apartment to a minor

Reasons for concluding a pre-contract can be considered the lack of all documents for the share of the apartment or the desire to insure yourself with a future transaction. For example, if the child’s representative doubts that the donor will give the share to his ward and not to another relative.

When intending to formalize the donation of a share of an apartment to children, adults often wonder whether it is necessary to conclude a preliminary agreement on the transaction? Life shows that this type of agreement on the transfer of part of property is extremely rare. However, practice knows enough cases when the preliminary agreement acted as a “lifeline” for the child and his representatives.