Is it possible to return a donated apartment to the donor?

Having issued a deed of gift for a piece of real estate, the donor must know that the ownership of it will be transferred to another person free of charge. It will be quite difficult to change your mind and regain an apartment transferred under a gift agreement.

You also need to know - How to draw up a deed of gift between close relatives for:

  • apartment;
  • house and land.

The procedure for completing a transaction is regulated by civil law, as well as the procedure for recognizing its cancellation. Is it possible to revoke or cancel a deed of gift for an apartment in Russia during your lifetime? Yes, if there are compelling reasons provided for by law and the ability to prove their existence in court.

Is it possible to challenge a deed of gift during your lifetime?

After transferring the apartment to the donee, the gift agreement can be canceled on the following grounds in accordance with the provisions of the Civil Code of Article 578:

  • paragraph 1 - the donee has made an attempt on the life of the donor, members of his family or close relatives, as well as in the case of intentional harm to the health of the donor. If the donor died as a result of the actions of the donee, his heirs have the right to demand cancellation of the transaction;
  • paragraph 2 - the actions of the recipient in relation to the received property entail the loss of its property value or may lead to its loss - the issue of cancellation is resolved in court;
  • clause 4 - in the case where the donor lived longer than the donee and if there is a corresponding clause in the deed of gift, it is subject to cancellation;
  • clause 5 - when transferring an apartment for public purposes as a donation, but using it for other purposes, the donor has the right to demand cancellation of the transaction.

Before the transfer of property into ownership, the donee has the opportunity to refuse the transaction for the following reasons:

  • the parties made a mutual decision to terminate the gift agreement (clause 1 of Article 450 of the Civil Code);
  • the recipient voluntarily refused the gift. In this case, it should be taken into account that when drawing up a gift agreement in writing, the refusal must also be written and if the deed of gift has undergone state registration, then the refusal to accept must also be registered (Article 573 of the Civil Code).

It is important to note that the refusal of the donee will be valid only until the transfer of ownership of the apartment, which acts as a gift, is registered.

On what grounds can donated housing be returned?

  1. If the life and health of the donor was in danger due to the fault of the recipient of the apartment.
  2. The living space has undergone changes for the worse after the transfer of rights to own real estate to a new owner.
  3. Death of the recipient, but in this case the donor himself indicates that the contract is no longer valid due to death.
  4. It also happens when the donor believes that the new owner of the apartment is keeping it in poor condition, but the recipient claims that he behaved appropriately and did not spoil anything. Then both sides are checked.
  5. If the donor is declared insane, you can go to court indicating the alcohol or drug intoxication of the previous owner of the apartment at the time of drawing up the gift agreement. However, an examination is required to verify this.
  6. The agreement was drawn up under pressure from the recipient, but this is not so easy to prove.
  7. If an apartment is accepted as a gift by a civil servant or an employee of educational, social and medical institutions, then such a transaction is considered illegal, because this category of people does not have the right to receive such gifts.
  8. Fact of fraud: forgery of documents, clarification of incomplete information in order to hide “inconvenient” information for violators.

Cancellation of a gift agreement

The decision on whether the agreement on the transfer of property as a gift is contested or not is made by the court if there is evidence of the illegality of the transaction and grounds for cancellation. The reasons for this are as follows:

1. Additional conditions specified in the contract. The law prohibits establishing conditions when, in exchange for the property being given, the recipient is obliged to give something away. The donation transaction is free of charge, which distinguishes it from others. If the plaintiff can provide evidence of the substitution of another document, the transaction will be canceled:

  • substitution of a will is determined if the agreement states that the property will be transferred only after the death of the donor (based on Article 572 of the Civil Code, such a transaction will be declared void);
  • substitution of a rent agreement - if there is a clause stating that the donor has the right to live in the donated apartment for life or the obligation of the donee to provide for the donor for life;
  • substitution of a purchase and sale transaction - if the deed of gift states that in exchange for the donated apartment, the donee is obliged to transfer money or other real estate to the donor.

2. The condition of the legality of the gift to the person to whom it is transferred is not met. The transaction is void if the provisions of Art. 575 Civil Code. The law prohibits donating property:

  • medical, pedagogical, social workers (the owner of the apartment, as well as their spouses and relatives, do not have the right to donate it in exchange for services received);
  • employees of government bodies, municipal structures, as well as bank employees in connection with the performance of their official duties;
  • parents or guardians on behalf of young children (under 18 years of age) or incapacitated citizens;
  • donation between two commercial organizations.

3. The procedure for concluding and the form of the transaction have been violated. When making a gift transaction, you must comply with the requirements of Art. 574 Civil Code. If the gift agreement does not need to be registered (drawn up after March 1, 2013), then the transfer of ownership is subject to mandatory state registration. Both parties must contact Rosreestr with an application for the transfer of rights, presenting a deed of gift. Otherwise, the transaction will be considered void.

4. The donor disposed of the property without having the right to do so. A transaction is illegal if:

  • the donor's controversial right to the donated apartment. The ownership of property that is transferred to another person under a gift agreement must be registered with the donor or such right at the time of the transaction is not disputed by a court decision;
  • the donated property was jointly owned, but there was no consent of the spouse;
  • there is no consent of one of the owners.

5. The conditions of the gift are recognized as unfavorable for the donor. For example, the apartment was the donor’s only home. When registering a deed of gift in the presence of a notary, both parties are explained all the consequences of the transaction. But even a notarial document can be challenged in court.

6. The transaction was made by deceiving the donor. The donee may deliberately deceive by verbally promising something in return for property. Then, having received the deed of gift, he refuses the promise. The transaction will be declared illegal.

7. The transaction was made by misleading the donor. Proving this fact is quite difficult, since you will have to provide the court with facts of intentional or unintentional actions of the donee.

8. Imaginary or feigned transaction. All transactions that fall within the scope of Art. 170 GK. An imaginary transaction is one that was concluded without the intention of fulfilling its terms. For example, when transferring an apartment as a gift according to documents, but remaining to live and use it. A sham transaction is made to cover up another transaction. For example, close relatives, in order to evade taxes, exchange apartments under a gift agreement.

9. Insanity or incapacity of the donor. In this case, the transaction will be canceled if appropriate documentary evidence is presented. For example, young children are legally incompetent and do not have the right to donate real estate, the owners of which they are, without the consent of their legal representative. Insanity is more difficult to prove, but if there is strong evidence, it is possible.

10. The deal was concluded under the threat of life. The donation transaction is exclusively voluntary, but if it is proven that the agreement was signed under the influence of a threat to the life and health of the donor and his family, it is challenged in court (clause 1 of Article 578 of the Civil Code).

11. If the attitude towards the gift leads to the irretrievable loss of its condition (clause 3 of Article 578 of the Civil Code).

12. If the donor has outlived the recipient, the deed of gift can be canceled only if this condition is specified in the gift agreement (clause 4 of Article 578 of the Civil Code).

Judicial practice on gift agreements shows that claims are not always satisfied - you can find out here.

Grounds and reasons

The grounds for cancellation of the contract are contained in Article 578 of the Civil Code of the Russian Federation.

  • If a party has made an attempt on the life of the donor or his close relatives, this also includes intentional infliction of bodily harm and other harm to health.
  • In order to preserve the object, it is possible to revoke the deed of gift for a share in the apartment if the other party treats the apartment in an inappropriate manner and, by its actions, creates a threat of irretrievable loss of the transferred object.
  • More often in the contract, the donor himself indicates its invalidity; the condition is the life span of the donor and the recipient, namely their ratio: if the recipient lives less than the donor.
  • If the subject of donation of a share in an apartment was not an individual, but a legal entity or individual entrepreneur, and the object was funds related to their business activities.

The above circumstances are an unambiguous prerequisite for the donor’s further actions: it is necessary to collect the relevant documents and then apply to the court to demand the cancellation of the donation procedure. This is an easy way to return a share in an apartment.

However, if the donor considers the recipient unworthy of the donated apartment, and the recipient behaves in accordance with the law and has not violated the conditions, there are still other reasons and conditions for revoking the deed of gift for a share in the apartment and invalidating the deed of gift.

  1. Insanity of the donor.
    You can apply to the court with a statement that the documents were signed by a person in a state of intoxication, for example. However, this fact must be confirmed exclusively immediately after signing the deed of gift and only with the help of an examination.

    In this case, if a notary took part in concluding the agreement, then the court should have questions about him as well.

  2. If the agreement was signed under the influence or pressure from the recipient. However, there are difficulties in the process of proof.
  3. If the party to the deed of gift is a person who, in accordance with the legislation of the Russian Federation, cannot accept apartments. These are, for example, government employees.
  4. Making a fake deal. Sometimes, under the guise of a gift agreement, they carry out the purchase and sale of an apartment; in this case, you can insist on the cancellation of the agreement.
  5. Participation in the conclusion of a contract by minors and incapacitated persons.
  6. Forgery of documents. In the age of modern technology, craftsmen can create a fairly realistic fake and resort to forgery. Do not forget that in addition to the cancellation of the contract, this entails criminal liability.

Limitation period for a deed of gift for an apartment in case of cancellation

There is a validity period for the deed of gift for the apartment. Cancellation is only permissible within three years from the date of the transaction. After this period, it is almost impossible to cancel it even with the involvement of the court.

The following situations are exceptions:

  • the plaintiff is a third party - the period for challenging is one year from the date when he became aware of it;
  • the plaintiff is a relative of the donor who became aware of the transaction later - three years from this date;
  • the donee prevents the donor from revoking the deed of gift - five years from the date of conclusion of the agreement.

To cancel a gift agreement, follow our recommendations:

  1. The donor must necessarily visit the court, because the termination of the contract and the subsequent re-donation of the apartment to the previous owner is carried out only there.
  2. Be sure to check the statute of limitations so as not to be late.
  3. Evidence of cause will be required for the court to take into account.
  4. Write a statement of claim, which should contain the following information: personal data of both parties, the name of the court and its address, a well-described reason for termination of the contract, a list of necessary documents - passports, title documents for the apartment, an old deed of gift, a paid receipt of state duty and other papers , contact details of all participants, statement.
  5. You should wait about a week, after this period a civil case is initiated if all the previous points are completed correctly.

Good luck!

If you want to read whether you can give an apartment to your brother, follow the link.

What documents will be required?

When applying to court to cancel a gift transaction, you will need to submit the following documents:

  • statement of claim;
  • identification document of the plaintiff;
  • deed of gift – deed of gift;
  • documentary evidence of the grounds for cancellation of the contract;
  • death certificate of the donor, if he died;
  • payment document confirming payment of the state duty (its amount is 300 rubles - clause 3, part 1, article 333.19).

- 2021 sample.

If your situation differs from the sample, then contact a lawyer-consultant on competently drafting a claim in court.

Procedure for canceling a transaction

Cancellation of a transaction by court decision occurs in the following form:

  • the plaintiff (donor, his heirs, relatives or government agencies) draws up an application to the court, attaching the necessary documents;
  • the entire package of documents is transferred to the magistrate at the address of the location of the subject of the gift agreement;
  • The court reviews the submitted papers and makes a decision to satisfy, cancel the contract or refuse.

If the plaintiff's demands are satisfied, a situation may arise where the donee cannot return the property in kind. Then he is obliged to pay the donor an amount of material compensation in the amount of its value (Article 1105 of the Civil Code).

Voluntary termination of the transaction is possible only before registration of the transfer of ownership to the person who received the apartment as a gift, in the following order:

  • the donor and the donee contact the notary, presenting the gift agreement, documents for the apartment and personal passports;
  • the notary examines the submitted documents and draws up an agreement to cancel the transaction;
  • after reading the agreement of both parties, the notary carries out the certification procedure;
  • the completed and certified agreement is transferred to the registration authority, where the transaction is canceled and an entry about this is made in the register.

Can the counterparty to the agreement relinquish the housing in favor of the donor?

The person who received ownership of the property can return it. This can be done in two ways - donate it to the former owner (that is, draw up a new deed of gift) or draw up a written agreement to cancel the contract.

If the deed of gift was certified by a notary, then the cancellation agreement will also need to be certified. The same goes for government. registration of the contract, so its cancellation should also be registered.

How to return the apartment back after transfer of ownership?

How to return a donated apartment back to the donor? The first thing the recipient must do is to inform the former owner of the property about his decision. By law, a person can refuse to accept a gift only before all documents have been completed. After this, such issues are never resolved unilaterally.

Step-by-step algorithm of actions:

  1. contact the notary who certified the deed of gift;
  2. provide the necessary documents;
  3. draw up an agreement to cancel the deed of gift (or draw up a new deed of gift);
  4. register the document in Rosreestr.

Both the agreement and the deed of gift are drawn up only in the presence of both parties. Therefore, the donor and the recipient must come to the notary. Sometimes it is necessary to provide the consent of the persons living in the apartment.

The full list of documents required for the return of real estate includes:

  • application for registration of property rights;
  • consent of the recipient's spouse to the transaction;
  • personal documents of participants;
  • extract from the Unified State Register;
  • document confirming payment of the duty;
  • documents for the apartment;
  • agreement or deed of gift.

If the recipient wants to transfer the housing to the previous owner, then a standard gift agreement should be drawn up.

The agreement to terminate the deed of gift does not have a form established by law, so it can be drawn up in free form.

The document must contain the following information:

  • place and date of compilation;
  • Full names of the parties;
  • subject of decoration;
  • details of the gift agreement that the parties are going to cancel;
  • information about the apartment;
  • procedure for compensation of expenses associated with the transaction;
  • signatures of the parties.

The agreement may contain additional information. As for the application for registration of ownership, you usually do not need to draw it up yourself.

It is enough to obtain a document form from the registration authority and fill it out.

Rosreestr employees accept the papers and issue the applicant with a receipt confirming their receipt. They review the application and other documents within a week. The transfer of ownership will be registered only after all data has been verified. The new owner only needs to pick up the documents within the specified period.

HOW TO RETURN A GIFT? - grounds for termination of the gift agreement / How to turn the gift?
HOW TO RETURN A GIFT? – grounds for termination of the gift agreement / How to turn the gift?

Consequences of cancellation of donation

Civil Code, paragraph 5, art. 578 establishes the consequences of cancellation of the donation. The object of the donation, which is indicated in the contract, as a result of the transaction is transferred to the donee without material costs on the part of the latter. If it is cancelled, everything returns to the moment before the agreement was concluded, i.e. the apartment is returned to the donor. Accordingly, if the donee has registered there, as well as other persons with him, then they are obliged to check out and move out. If they refuse to do this voluntarily, they will be evicted by court order.

Briefly and to the point, the lawyer in the video answers the question - Can a donor cancel a donation agreement for an apartment?

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