Case N22-KG15-2. On the invalidation of a power of attorney and gift agreement, the inclusion of an apartment in the inheritance estate, the establishment of the fact of family relations, and the recognition of ownership rights.

Let us recall that a gift agreement means the gratuitous transfer by one party of property, securities, jewelry or ownership of real estate to the other party.

Any item can be donated at any cost. Restrictions are imposed on the transfer of a hunting rifle into the possession of another person, which, by law, can only be given to a person who has the appropriate permit (license).

It is recommended to draw up a gift agreement when the value of things exceeds 3,000 rubles.

A deed of gift for any piece of real estate or plot of land must be registered with the federal government and the title of ownership must be transferred from the donor to himself.

In order for the gift agreement to be registered by law and come into force, the following documents must be prepared:

• application for registration of the agreement (submitted by both parties);
• documents confirming the identity of the donor and the recipient;
• receipt of payment of state duty;
• a gift agreement concluded with a notary in the original;
• notarized written consent to conclude a gift agreement from the wife or husband of the donor, if he is legally married.

Otherwise, the agreement may be declared invalid. The gift agreement implies mutual consent of the two parties.

The recipient must know about the item he is receiving as a gift, its real value or historical significance, and agree to accept it. Otherwise, the fact of donation will not take place.

Reasons for termination of a gift agreement by the donor

But there are situations when the donor himself insists on the return of his former property.

To do this, he must present compelling arguments, which include the following factors:

• bodily harm to the donor by the recipient or an attempt on the life of his family members;
• early death of the donor after the conclusion of the contract, arousing suspicion among law enforcement agencies;
• the recipient is negligent in storing a rare item of cultural and historical significance;
• an unexpected decline in the donor's standard of living, which he can restore with the return of the donated item.

A big disadvantage of concluding a gift agreement in the event of its termination is the return of the gifted item without compensation for the recipient, and it is not taken into account that he, for example, made European-quality renovations in an apartment, furnished a country house, or invested a decent amount of money in tuning a car.

Cases and grounds for recognizing a donation as a void transaction

As we already mentioned above, the legislator has today established 2 groups of grounds in relation to donations, the presence of which directly indicates the nullity of the agreement. Thus, the reason for this in 2021 may still be some of the general grounds for invalidating civil contracts, as well as some special circumstances entailing the nullity of a gift, which can be found in Chapter 32 of the Civil Code of the Russian Federation.

Based on the presumption of nullity of an invalid deed of gift, which we have already mentioned, which is defined in Article 168 of the Civil Code of the Russian Federation, a void contract is considered to be one that violates any of the requirements established regarding its conclusion by the legislator .

For example, in addition to encroachment on private or public interests (information from Article 168 of the Civil Code of the Russian Federation), as well as a general violation of the law, a gift agreement must be considered in the following cases:

1. The gratuitous donation was made for purposes that are contrary to morality and the fundamentals of law and order (Article 169 of the Civil Code). Such an agreement can be understood as an agreement that contains elements of a criminal offense (for example, aimed at evading mandatory payment of taxes, distributing illegal drugs, etc.). Since such a basis is not considered obvious by the legislator, its existence must be proven in court by the interested party.
2. The deed of gift is of a feigned or imaginary nature (Article 170 of the Civil Code of the Russian Federation). Thus, if a gift agreement was concluded without the desire of the parties to shape its consequences, but was concluded “as a distraction”, to cover up another transaction of a compensated nature, the donation will be considered void and the transaction annulled.
3. The donation was made by a minor or an incapacitated/partially capable person (Articles 171 and 172 of the Civil Code of the Russian Federation, as well as paragraph 1 of Article 575 of the Civil Code). We remind you that these persons are limited by the legislator in the right to make a deed of gift. Since this reason is considered obvious, there is no need to prove it! For the same reason, the consequences of invalidity will immediately be applied to the transaction in court.
4. The gift agreement was concluded in favor of persons who are prohibited by law from accepting such gifts (according to Article 575 of the Civil Code of the Russian Federation). Ignoring this prohibition is considered a deliberate non-compliance with legislative norms, which is why, according to Article 168, such agreements will be regarded as inherently void. We remind you that in 2021, the category of such persons includes: municipal and government employees, employees of social, educational and medical institutions, etc.
5. The content of the contract contains a general promise to give a gift without its description, name and characteristics (according to paragraph 2 of Article 572). This norm directly indicates the nullity of the transaction, because the object of the donation acts as an essential condition regarding which the donee and the donor must come to a common agreement (Article 432 of the Civil Code of the Russian Federation). That is, the object of the gift must be distinguished from others that are not the object of the gift, using a description in the content of its unique properties and parameters.
6. The donation was concluded orally, while for this type of transaction (for example, when donating real estate), a mandatory written form of the donation agreement was established (2 paragraph 574 of Article of the Civil Code of the Russian Federation). At the same time, this legislative norm directly indicates the nullity of the transaction and does not require obtaining a corresponding court decision.
7. The gift agreement was concluded instead of the donor by his authorized representative; the notarized power of attorney did not indicate the donee and the object of the gift (according to paragraph 5 of Article 576 of the Civil Code of the Russian Federation). This basis may correspond with Article 168 of the Civil Code of the Russian Federation, since the norm described above only confirms the fact that such a transaction is null and void. We remind you that making a gratuitous gift under a void power of attorney also leads to the nullity of the transaction (in accordance with Article 168 of the Civil Code of the Russian Federation).

An example from the practice of Legal Ambulance specialists

A deed of gift was concluded between the pensioner O. and her tenant M., according to which O. promised to donate all his property to M. free of charge after he signs with her daughter K., who lives with them. However, of all the property, M. was only interested in real estate - the apartment in which all three lived.

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Wanting how to get the long-awaited living space, M. insisted on an early wedding and the immediate execution of a gift agreement. After the wedding procedure, M. demanded that O. submit a corresponding application to Rosreestr to re-register ownership of the apartment. Although O. did not understand the reasons for the rush, being a compulsory citizen, she kept her promise.

About a week after submitting an application to the registration authority to the address of the apartment in which the three participants in this story lived, a notification was received in which Rosreestr employees refused to register the property rights of the new owner, arguing for their actions that the apartment donation agreement provided to them did not comply standards established by the legislator in Art. 20. Federal Law No. 122.

The letter contained a reference to the nullity of the drafted deed of gift, and the basis for this was the result of a legal examination of the package of documents (Article 13 of Federal Law No. 122), more precisely, the inconsistency of the contents of the agreement (2 paragraph 572 of Article 572 of the Civil Code of the Russian Federation). Simply put, the employees were forced to reject the request to register a deed of gift due to the lack of specification of the subject of the gift in the agreement.

M. tried to appeal the decision, but the court, having considered all the materials, declared the deed of gift void.

A gift agreement may be declared invalid due to non-compliance with the letter of the law.

We remind you once again that the gift agreement must be concluded legally, otherwise it may be declared invalid due to non-compliance with legal norms.

For example, according to Article 173-179 of the Civil Code of the Russian Federation, a gift agreement is invalid and a person does not have the right to accept any items as a gift if:

• the donor is a minor from 14 to 18 years of age without the consent of parents or guardians (the exception is the fact that a minor at 16 years of age is recognized as emancipated, that is, fully capable on the basis of his employment and parental permission);
• the donor is a person declared incompetent, and his guardian did not give consent to this agreement;
• if the contract does not indicate the items of donation and their approximate value;
• the donor is the organization that provided the items as a gift orally;
• the recipient is an employee of a social service or medical organization directly related to the donor;
• if a legal entity or individual entrepreneur is declared bankrupt within 6 months after the conclusion of the gift agreement;
• when the donor puts forward certain conditions under which the recipient can receive the object of the donation;
• the gift agreement is considered invalid if the donor insists on the transfer of items as a gift after his death by his closest relatives;
• the gift agreement was concluded under duress and threats of physical violence;
• the donor was misled about the conclusion of the contract, did not understand the essence of what was happening and could not imagine the consequences as a result of which his immediate relatives would have their rights infringed;
• the legal spouse of the donor did not provide his consent to the agreement;
• the donor was in extremely difficult life circumstances and therefore agreed to conditions that were obviously unfavorable for himself, which the other party took advantage of for their own selfish purposes;

In the event of the death of the former donor, the property is returned to the latter, and the relatives of the recipient do not have rights of inheritance.

This must be taken care of in advance by the one who receives the items as a gift and the fact of inheritance by their closest relatives must be registered in the event of his untimely death.

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What is a void gift agreement from the point of view of the legislator?

Based on the information provided in Article 168 of the Civil Code of the Russian Federation, every gift agreement that does not comply with special as well as generally accepted norms and requirements of the legislator is invalid. Moreover, according to Article 166 of the Civil Code of the Russian Federation, such transactions, depending on the procedure for their recognition, can be divided into two groups:

1. Insignificant;
2. voidable.

Thus, the first ones are agreements that have violations that directly lead to the initial nullity of the transaction, which act as grounds for the inability to “whitewash” the agreement by proving its legality.

The same Article 168 of the Civil Code defines the so-called presumption of contestability of this type of transaction. For example, it will be considered void if the content of the contract established clauses and conditions that contradict the letter of the law or if the transaction infringes on private/public rights and interests.

Thus, a void gift agreement is initially invalid by its nature and in most cases it can be challenged without an appropriate court decision (Article 166 of the Civil Code of the Russian Federation). Simply put, when challenging such a transaction, the interested party does not necessarily have to ask for the agreement to be declared invalid, due to the fact that he is invalid from the moment of its conclusion.

It is immediately worth noting that the approach described above can only take place in cases where an irreparable defect in the deed of gift is “on the surface” (violation of the mandatory form of donation established by the legislator, making a donation in favor of a person who is prohibited by law from making such gifts, etc.) .

Note

At the same time, most of the grounds for the invalidity of deeds of gift, which are listed in Chapter 9 of the Civil Code of Russia, cannot be called unambiguous, because each of them requires proof of their existence by a person interested in challenging the contract.

Also, we note that, based on the description in Article 167 of the Civil Code of the Russian Federation, confirmation of a void transaction when making a gratuitous gift from the donor in favor of the donee does not entail practically any legal consequences. And the literal interpretation of this chapter allows us to assume that the nullity of the deed of gift does not give rise to any obligations of the giving party regarding the transfer of the gift, which gives him the right to refuse such a donation and execution of the contract without any grounds. In addition, such a transaction cannot form the donee’s ownership rights to the gift transferred to him.

At the same time, by the provisions set out in paragraph 2 of Article 167 of the Civil Code of the Russian Federation, the legislator fixed the general consequence related to the nullity of the transaction - the return of all received property by the donee to the donor. There are also special consequences in the legislative framework, which we will talk about a little later.

Recognition of a gift agreement as invalid if it is a cover for a purchase and sale transaction

A gift agreement can be challenged in court and declared invalid if it is an actual cover for a purchase and sale transaction.

Such situations often arise when dealing with rooms in a communal apartment or selling your share of real estate. This is due to the fact that such sales transactions involve a lot of hassle.

The owner of a share or room in a communal apartment must offer his neighbors or co-owners to buy out his property on a priority basis or ask for permission to sell if they refuse the deal.

It happens that the neighbors are already accustomed to, as they say, living alone (since you are selling the room, it means you have another place to live) and do not want other people to appear in the apartment, but they themselves are not able to buy out your share.

Then they deliberately delay the answer, thereby disrupting all the plans of the co-owner.

To avoid all these difficulties, many people try to cover up the purchase and sale transaction with a gift agreement.

It is not recommended to agree to purchase a room in a communal apartment or a share in any other real estate if you were offered to do this through a gift agreement.

People who have the primary right to purchase this property can challenge your agreement through, and the statute of limitations is 10 years from the date of conclusion of the agreement.

As a result, you may be left without real estate and without money, since it will be very problematic to prove their receipt by the donor.

Think about whether it's worth the risk!

A gift agreement covering a purchase and sale transaction is recognized as a void transaction on the basis of Article 170, paragraph 2 of the Civil Code of the Russian Federation.

The agreement to transfer items as a gift must be absolutely free of charge, which is regulated by Article 572 of the Civil Code of the Russian Federation.

Imaginary gift agreement

There is such a thing as an imaginary gift agreement. Thus, according to Article 170 of the Civil Code of the Russian Federation, which regulates this issue, a transaction will be recognized as such if its conclusion was only formal; in fact, the donor does not transfer the property for free use to the donee.

In most cases, such transactions are concluded between the parties in order to hide their property and deliberately show less income than they actually have. Therefore, it is possible that during court proceedings a criminal component will be discovered in the actions of one of the parties.

Challenging the gift agreement in court by the donor's heirs after his death

If the donor gave certain valuable things as a gift during his lifetime, and his wife or husband agreed to this, then other even close relatives have to come to terms with this situation.

But after the death of the donor, the question of challenging the deed of gift in court often arises.

The heirs of the first stage believe that their rights have been infringed and are trying to challenge the gift agreement made by their close relative in court.

According to Article 196 of the Civil Code of the Russian Federation, the heirs of the donor are given this right, but it is quite problematic to prove that the deed of gift was drawn up illegally.

After all, the donor is no longer alive. Therefore, it is impossible to conduct a medical examination of his legal capacity, and it is also impossible to present evidence of coercion on the part of the recipient.

In addition, the heirs must apply to the court within 3 years from the date of death of the donor, otherwise the statute of limitations will expire.

There is a chance to challenge the deed of gift if the agreement was concluded with any violations that were listed earlier.

The concept of a void gift transaction in 2021

So, based on the provisions of Article 166 of the Civil Code of the Russian Federation, an initially invalid agreement acts as a void gift agreement due to its violation of legal norms and requirements imposed by the legislator for the execution and conclusion of such transactions.

The nullity of the deed of gift begins from the moment the transaction is concluded between the parties to the donation and is explained by the fact that in the future the agreement cannot be changed or supplemented by the donor and the donee, who have assumed the responsibilities of its implementation.

Expert opinion

Oleg Ustinov

Practicing lawyer, author of the website “Legal Ambulance”, one of the co-founders of the “Our Future” foundation.

The role of interested parties who have the right to demand that the contract be declared void can be any persons interested in this (for example, heirs or creditors), unless this is prohibited to them by a specific ground for nullity. Moreover, according to paragraph 4 of Article 166 of the Civil Code, the court has the right, on its own initiative, to apply these consequences if this helps to protect public or private rights and interests.

Although, based on the information described in paragraph 1 of Article 166 of the Civil Code, a transaction is considered void only on the grounds listed in the Civil Code of the Russian Federation - this is clearly contradicted by paragraph 1 of Article 168 of the Civil Code of the Russian Federation, which interprets a void transaction as any agreement that does not comply with the norms and requirements law. However, lawyers argue that specifying such a general wording is completely justified, and Article 168 applies only to those insignificant transactions that clearly violate the law.

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Thus, a void transaction in 2021, relating, in essence, to offenses and unlawful actions, entails only the consequences provided for by the legislator, that is, the consequence of its invalidity.

Let us only note that the illegality of the actions of the donor and the donee in a void transaction is, as a rule, obvious. This justifies the rules according to which, in order to recognize such a gift as void, it is not necessary to obtain a corresponding court decision. At the same time, in case of challenging void transactions, all that the court can do is apply the consequences related to such agreements.

Grounds for invalidating a deed of gift

There are several situations in which a deed of gift can be revoked:

• The agreement was signed at a time when the donor did not realize and could not control his actions, but is considered legally competent. For example, with mental illness. Incapacity is established by the court, and in this case disability is simply assigned, and the notary may not recognize the hidden signs of a mental disorder;
• Fictitious donation of property. For example, if an apartment was purchased by spouses during marriage, but they subsequently decided to divorce, during the divorce process one of them draws up a deed of gift to a third party. In fact, the real estate leaves the joint property, but the transaction can be canceled through the court on the basis of the lack of written consent of the other party to transfer the apartment as a gift;
• Registration of a deed of gift by an incapacitated or minor person. Incapacity is established by a court decision in the presence of relevant certificates. Donations on behalf of minors are also prohibited. The transaction is canceled in court;
• An imaginary transaction made to cover up another transaction. Most often this happens when citizens decide to replace a deed of sale or rent with a deed of gift;
• Concluding a transaction under psychological or physical influence (violence, beating the donor, etc.). Here the contract is canceled, and the donee is brought to criminal liability if all the circumstances are proven;
• Misleading the donor.

Expert commentary

Shadrin Alexey

Lawyer

The last situation is the most common, and the largest number of applications for cancellation of donations are presented in the courts precisely for this reason.

Let's look at the most common example:

To Afanasyeva O.E. a man came who introduced himself as an employee of an organization that provides assistance to pensioners. He said that if she signed a life annuity contract, she would be provided with regular care, help with housework and food supplies. Afanasyeva O.E. agreed to such conditions, transferring her apartment in exchange to the organization, allegedly under a rent agreement. After signing it, she was kicked out of her home: it turned out that instead of an agreement on lifelong maintenance, she had signed a deed of gift, according to which the property becomes the property of the organization immediately after signing.

The woman contacted the police. An investigation was carried out, as a result of which all the perpetrators were identified and brought to justice. The deed of gift was canceled through the court.

Time limit for challenging a gift agreement declared void in 2021

In legal practice, the period for challenging a void transaction is usually called the statute of limitations, because challenging an agreement can only be carried out at this time within the framework of legal proceedings. Based on the information specified in Article 181 of the Civil Code of the Russian Federation, the period for challenging a void deed of gift, as well as applying established consequences to it, is 3 years. At the same time, it is worth noting that the order of this period is always strictly individual and differs in each specific case.

According to the generally accepted rules described in the above article, the limitation period begins from the moment the void transaction is executed! At the same time, for other persons interested in challenging the deed of gift, the period may begin from the moment they learned about the execution of the donation.

3 years after a person learns that his rights were violated as a result of this transaction, he loses the opportunity to challenge the contract . But, if the court establishes that the reasons for missing the deadline are valid, it can be restored, in accordance with Article 205 of the Civil Code.

Thus, the limitation period can only be restored by a decision of the court, which is considering the case to declare the transaction void. Note that in cases where the reason is really serious (for example, a long-term illness or a business trip to another country), the period is always restored.

However, even if the interested party had valid reasons, the period of claim, according to paragraph 1 of Article 181, cannot be more than 10 years! This period was determined based on the relevance of challenging the transaction, since after a decade such challenging will have no meaning.

The concept of a void contract

According to Art. 166 of the Civil Code of the Russian Federation, a contract that is initially invalid due to a direct indication of this in the law should be considered void, regardless of whether this is recognized by the judicial authorities, as well as the opinion of the parties to the contract. The nullity of the contract occurs from the moment of its conclusion, due to which it cannot lead to the emergence, change or termination of any civil rights or obligations to which it was actually directed by its parties (clause 1 of Article 167 of the Civil Code).

Important

The right to demand the application of the consequences of the invalidity of a void contract is vested in any interested persons, unless the contrary is indicated in the specific grounds for nullity. In addition, according to paragraph 4 of Art. 166 of the Civil Code, if required by the protection of public interests, the court may apply these consequences on its own initiative.

According to paragraph 1 of Art. 166 of the Civil Code, the transaction should be considered void on the grounds expressly provided for in the Civil Code. However, this norm contradicts paragraph 1 of Art. 168 of the Civil Code, which defines as void any transaction that does not comply with the requirements of the law and in respect of which its contestability or any other consequences have not been directly established.

The indication of such a generalizing norm is objectively justified. Thus, the application of Art. 168 of the Civil Code is necessary only in cases where there is no special composition of a void transaction, but a violation of the requirements of the law still occurs.

A void transaction, being inherently an unlawful act or an offense, can entail only those consequences that are provided by the legislator as a reaction to its commission - the consequences of invalidity.

The illegality of the actions of the parties to a void transaction, in most cases, is quite obvious, which is what the rules regarding the invalidity of such contracts are based on, which does not require its recognition. In cases of challenging such transactions, the functions of the court are reduced only to the application of consequences . In cases where the illegality of the parties’ actions is not obvious, recognition of the invalidity of a void transaction by the court is inevitable.

How to declare a transaction void in court

So, we have found out that a void gift agreement is initially void. That is, from the very beginning of his imprisonment. Thus, according to the information described in Article 166 of the Civil Code of the Russian Federation, the invalidity of this transaction cannot depend on a court decision and, in most cases, such a decision is not required to challenge it.

At the same time, all of the above can only be applied to cases of insignificant donation that have obvious evidence of violation of the law (for example, the absence of a mandatory written form). In other cases, when the offenses are not obvious, in order to recognize the transaction as void, the interested party must prove his own position in court.

We remind you that, based on the norms described in paragraph 3 of Article 166 of the Civil Code, the requirement to prove the invalidity of the deed of gift can be made by any person interested in this cancellation.

The procedure for declaring a transaction void in 2021

Extensive practical experience in such cases and a thorough study of the current legislative framework allowed the lawyers of the Legal Ambulance website to highlight the most important stages that anyone who wants to challenge a gift agreement will need to go through:

1. Preparation of the necessary package of documents, as well as the evidence base . Since the person who decides to challenge the gift agreement has the burden of proving the nullity of the agreement, it is this citizen who must provide the court with undeniable evidence of his allegations. At the same time, such evidence today may include testimony of witnesses, medical certificates, receipts, results of an independent examination, etc. Remember that all documentary evidence must be attached to the claim and the main package of documents.
2. Payment of the state duty established by the legislator . According to Article 132 of the Code of Civil Procedure, along with the statement of claim and additional documentation, the applicant must submit a receipt confirming successful payment of the state duty. Otherwise, based on paragraph 1 of Article 136 of the Code of Civil Procedure, the claim will be rejected until payment is made and the relevant document is provided. Today, according to Article 333.19 of the Tax Code of the Russian Federation, the amount of this duty is 6,000 Russian rubles for legal entities and organizations, as well as 300 Russian rubles for individuals.
3. Correct preparation of a claim and its subsequent submission to the judicial authorities . When drawing up a statement of claim, in addition to the standard details of the plaintiff, it is recommended to describe the situation in as much detail as possible, referring to specific legal norms that act as grounds for declaring the gift void. Also, you need to list your requirements, among which the experienced lawyers of the Legal Ambulance website recommend that you include a requirement to recognize the transaction as invalid, as well as a request to apply specific consequences established by the legislator to a void transaction. Filing a statement of claim, in accordance with Article 28 of the Code of Civil Procedure, is carried out at the place of residence of the defendant, if he is an individual, and at the location of the defendant, if he is a legal entity.
4. Trial . Surely, most of our visitors know that the consideration of a case in court takes place in several main stages: the opening of the process, the actual consideration of the case in essence, judicial debate and, finally, the issuance of a court decision. We note that in order to achieve a positive decision in your favor, it is recommended to take a responsible approach to visiting the court and not miss a single meeting, in which you need to try to defend your position and protect your rights, providing additional evidence and referring to various current laws.
5. Execution of a court decision . If the applicant's demands are satisfied, the stage of execution of the decision begins, within which the defendant is obliged to obey the court decision. Otherwise, the defendant will be forced to execute the decision, and the bailiffs will take control of this process.

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What documents are needed to challenge a void transaction?

Those who decide to challenge an insignificant gift transaction in court should definitely read Article 132 of the Code of Civil Procedure, which contains a list of documents without which the court will not allow the case to proceed. Here are the main papers you need to have on hand:

• copy and original of the statement of claim;
• original and copies of the applicant’s identity document (for example, passport);
• copies of documents serving as evidence of the plaintiff’s allegations;
• copies of the disputed deed of gift;
• a receipt confirming successful payment of the state duty;
• copies of the notarized power of attorney (if a proxy acted instead of the donor or donee in the transaction).

Also, it is worth noting that the number of copies in this case depends entirely on the number of participants in the trial.