Gift agreements are concluded quite often in our country. In some cases, along with the gift, not only the ownership of the gift passes to the recipient, but also the obligation to pay debts associated with the gift.
Important
Giving debts is a violation of the rights of the donee , because any debts regarding the maintenance of the property presented as a gift that arose before the moment of donation, the donor is obliged to repay at his own expense.
At the same time, under a deed of gift, one person can repay the donee’s debt to a third party or forgive the donee’s debt within the framework of the donor’s statutory right to release the donee from one or another property obligation to himself or to another person. This is a completely different form of donation of debts, which should be recognized as completely legitimate.
Do debts transfer when donating property?
According to Art. 223 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), in the case of the acquisition of any property under an agreement (including under a gift agreement), the acquirer’s right of ownership arises from the moment when the thing is transferred to him. At the same time, if in order to alienate certain property it is necessary to go through the state registration procedure (for example, when donating an apartment or a car), then the new owner will have ownership rights only from the moment the necessary registration is completed .
As follows from Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property that belongs to him (although exceptions may be provided for by law or contract). Based on the analysis of these articles, we can conclude that from the moment the ownership of the gift arises, the donee has an obligation to maintain the thing given to him by the donor.
Only after the moment of ownership arises, the new owner is obliged to pay all debts incurred during his stay in the property. At the same time, all debts that arose before this (that is, the debts of the donor) must be repaid by the donor himself as the person who was entrusted with the burden of maintaining the thing before transferring it as a gift.
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The court can make a decision to seize housing only if we are talking about the second or third apartment or house of the borrower. It will be difficult to repossess a second home if its owner, in addition to the borrower, is other people. Moreover, if children live in shared ownership, the financial institution must receive permission to withdraw the apartment from the board of trustees. The borrower has the right to sue the bank and focus on the illegal seizure of housing.
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Debts when donating an apartment
The basic rules for determining the person who is obliged to repay debts when donating an item have already been described above. In relation to the donation of real estate (apartments, among others), it should be noted that the donee takes ownership only after undergoing state registration of the transfer of this right under a gift agreement.
And from now on, he is responsible for paying utilities and other payments related to the maintenance of the real estate donated to him. If, before the donation, the previous owner maintained the apartment in bad faith (for example, he accumulated arrears in paying for housing and communal services), then the corresponding debts formed before the donation must be repaid by the donor , but not the recipient of the gift.
It is important to note that the parties to the gift agreement have the right to independently decide and stipulate in the agreement the conditions for repayment of those debts that were formed before the transfer of real estate as a gift. This possibility directly follows from the principle of freedom of contract enshrined in Art. 421 Civil Code of the Russian Federation.
Example
Petrov bought an apartment on credit to move his relative Sidorov, who found himself in a difficult life situation, into it. Sidorov was registered and lived in the apartment from the day Petrov received the certificate of ownership of it. During his stay, Sidorov did not pay for the services of the management company, thereby accumulating a large debt, which the management company collected from Petrov as the owner. Later Petrov gave the apartment to Sidorov. In the gift agreement, the parties stipulated that the apartment would be donated along with utility bills.
Loan from a deceased relative
Any obligations are subject to timely fulfillment. For evasion of debt payment, the defaulter is involved in legal proceedings, which will result in the delivery of a writ of execution to the creditor. The procedure for forced collection through the bailiff service involves the direction of the defendant’s finances and property to pay off the debt. In this regard, it is extremely important to know whether bailiffs can take away an individual’s only home for debt on loans.
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Repayment of the donee's debt to a third party as a form of donation
According to Art. 572 of the Civil Code of the Russian Federation, one person has the right to repay the debt of another person to a third party (creditor). Such an expression of will can be formalized in the design of the gift agreement. In this case, the donor may also promise to repay the donee’s debt in the future, provided that:
- the promise is made in proper form (according to paragraph 2 of Article 574 of the Civil Code of the Russian Federation, the written form of such an agreement is mandatory);
- a promise clearly expresses the intention of the giver .
Attention
According to Art. 581 of the Civil Code of the Russian Federation, in the event of the death of the donor who promised to repay the donee’s debt, this obligation must be fulfilled by the donor’s heirs (except for those cases when the contract expressly provides otherwise). In turn, the heirs of the recipient of such a gift do not have the right to demand fulfillment of the promise in the event of the death of the donee.
As follows from paragraph 4 of Art. 576 of the Civil Code of the Russian Federation, as well as from paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, the creditor of the donee is obliged to accept performance that is offered for the donee-debtor by a third party (donor), if the debtor assigned the obligation of performance to such a third party, agreeing to accept such a gift. As you know, the recipient of a gift must agree to accept it, otherwise the gift is not legal.
However, the creditor may not accept performance for the debtor of an obligation that, by law, by the terms of the contract or by the essence of the obligation, must be fulfilled personally by the debtor. In addition, if the donor repays the donee’s non-monetary debt (for example, performs certain work or provides a service), then he is liable to the creditor for any shortcomings in such performance.
Is it possible to challenge a deed of gift and how?
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Is it possible to challenge a deed of gift and how?
This can be proven if the donor’s relatives have the necessary documents from medical institutions, which prove his incapacity. The concept of incapacity can be either a person’s alcohol intoxication or a serious illness, all of which, one way or another, can have a negative impact on the donor’s perception of the situation.
The transfer of debts under an apartment (share) donation agreement for utilities and loans is not provided for by the current legislation. But in practice, various problems arise associated with non-payment of debts.
Forgiveness of the donee's debt
The subject of a gift may be the release of the gift recipient from debt to the donor (who is a creditor). This is how the debt of the donee is forgiven. It can be called legitimate if the following conditions are met:
- if the donor, releasing the donee from one or another obligation, does not violate the rights of other persons in relation to his property;
- if the donee does not object to forgiveness of his debt .
Additionally
Relations related to debt forgiveness are regulated by the provisions of Art. 415 of the Civil Code of the Russian Federation. However, it is necessary that the elements of the gift agreement be clearly expressed , namely, gratuitousness and the intention to relieve another person from the obligation assigned to him. It is necessary that when the debt is forgiven, the creditor does not have a property benefit , that is, does not receive any counter-representation.
Debt forgiveness can also take place in relations between legal entities . It is important to remember that, according to paragraph 1 of Art. 575 of the Civil Code of the Russian Federation, donations between commercial business entities are prohibited - such an agreement can only be concluded between legal entities that do not pursue the goal of extracting material benefits in the course of their activities.
Can a court cancel a gift agreement due to the debts of the donor?
- Real estate
- Housing law
- Good evening. Please tell me, can I cancel the contract of donation of my property if I have a large debt to the bank and besides this property I have nothing? This will be considered in court as a basis - The donor has the right to demand in court the cancellation of the donation if the recipient’s handling of the donated item, which is of great property value to the donor, creates a threat of its gratuitous loss? cancellation of a gift agreement, debt gift agreement Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been considered, try looking here:
Can a court cancel a gift agreement due to the debts of the donor?
Debts can be transferred to relatives if they are heirs within the value of the transferred property. If it is determined that the debt is joint, that is, spent on the needs of the family, then it is possible to foreclose on the common property of the spouses, and if it is insufficient, on the property of the spouse. However, collecting the debt from the wife in court is not possible.
The same law determines that the owner of the home, until the mortgage is paid in full, is the bank. The borrower does not have the opportunity to register the right to own housing, so he will not be able to act as a donor without the consent of the organization that issued the mortgage. Even if such an agreement takes place, in essence, the donor is the bank, but not entirely.
As soon as the borrower receives the consent of representatives of the creditor bank to draw up a deed of gift for the apartment with a mortgage, he must begin preparing a package of documents necessary for the transaction, which include:
What legislation governs this transaction?
A striking example of this is the registration of a deed of gift for an apartment in a mortgage. Since this type of gift deed is a transaction involving real estate with an encumbrance, the assistance of a qualified lawyer and compliance with certain conditions will be required to draw up a legally correct document.
Theoretically, the possibility of challenging the gift agreement by other relatives, residents who own shares in the apartment, or other interested parties (for example, creditors or tax authorities) cannot be ruled out. If the transaction is recognized as imaginary or feigned, the court will cancel it by its decision. There are some other grounds for cancellation (failure to comply with the form of the agreement, lack of consent of the remaining shareholders, when the share is not allocated in kind).
Despite the fact that the presence of debts for utilities is not an obstacle to registering a deed of gift for housing, various problems may arise for both parties to the transaction. So, if the utility companies managed to file a lawsuit, and the bailiffs initiated enforcement proceedings, the apartment may be seized until the debt is fully repaid.
Is it possible to include a clause on the transfer of debt in the text of the deed of gift?
According to current legislation, real estate transferred by the donor to the donee comes at the full disposal of the new owner. There is no need to notarize the gift deed, except for the following cases:
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Transfer of the donee's debt to a third party as a form of donation
In Art. 576 of the Civil Code of the Russian Federation states that one person who wants to give a gift to another person can transfer the donee’s debt to the creditor . In this case, the rules enshrined in Art. 391 Civil Code of the Russian Federation and Art. 392 of the Civil Code of the Russian Federation for debt transfer. Consider these rules:
- To transfer a debt, the consent of the recipient of the gift (debtor) and the creditor (if there is no consent of this party to the obligation, then the deed of gift is considered void).
- If the debt exists within the framework of obligations to conduct business, then an agreement on its transfer to a new person can be concluded between the creditor and the new executor (in this case, the donor assumes the obligation of the original debtor). In such obligations, the donor and the donee are jointly and severally liable to the creditor , unless the deed of gift containing the condition for transferring the debt provides for the subsidiary liability of the original debtor or the original debtor is not released from execution. At the same time, the recipient of the gift may refuse to be exempt from performing his duty.
- If the creditor gave only preliminary consent to the change of executor, then it is considered that the donor has transferred the debt to himself from the moment the creditor receives the relevant notification .
According to Art. 392 of the Civil Code of the Russian Federation, the donor has the right to raise objections to the creditor’s claims , if such claims are based on the relationship between the donee, as the original debtor, and the creditor, but cannot exercise against the creditor the right to set off a counterclaim belonging to the donee.
