Donation of a room (sample agreement): in an apartment, in a communal apartment, in a dormitory

Is it possible to sell a room through donation?

A sale is a transaction under which the seller transfers property to the buyer for money. The specifics of the transaction are regulated by Ch. 30 Civil Code of the Russian Federation. Donation involves the gratuitous transfer of property, where the donor is involved instead of the seller, and the donee is involved instead of the buyer.

By nature and characteristics, these are completely different transactions, and real estate cannot be sold through a gift. Some prefer to draw up a gift agreement (hereinafter referred to as DD) instead of a purchase and sale agreement in order to avoid paying tax (sellers pay 13% personal income tax) but actually receive money. Such transactions are considered feigned, and the consequences of invalidity are applied to them (Article 170 of the Civil Code of the Russian Federation).

Legal advice: it is better to immediately draw up a real contract when selling, otherwise there is a risk of running into an unscrupulous buyer. Having drawn up a deed of gift, you may not receive money for the property in return, because such an agreement implies gratuitousness. You will have to defend your interests in court.

Elena Plokhuta

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

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Registration authority

The registration authority in the Russian Federation is the Federal Registration Service, or otherwise Rosreestr.

Very often, representatives of this service are located in municipal multifunctional centers.

Therefore, it is enough to collect a package of documents, come to the MFC, get a ticket for the queue and submit documents for registration.

After registration, the new owner will be given a certificate of ownership of the apartment.

Additionally, it should be noted that registration of the transaction and registration of ownership rights can be carried out in any Rosreestr service located in the same subject of the Russian Federation with the real estate being donated.

To register a transaction and obtain a certificate of ownership, the parties to the agreement will need to submit the following documents to the registration authority:

agreement on donation of a share in an apartment;
certificate of ownership of a share in the apartment;
passports;
house book;
receipt for payment of state duty.

This list of documents is complete for the general rule for registering the transfer of ownership.

In some cases, a notarized consent of the spouse may be required for the alienation of a share in the apartment, including its transfer as a gift.

Notarized consent of the donor's spouse is required if the property transferred as a gift is joint property of the spouses.

If one of the spouses received the living space donated as an inheritance or privatized it before marriage, the notarized consent of this spouse is not required.

Also, under certain circumstances, Rosreestr may require you to provide a technical passport for the apartment.

In this regard, you will need to take it with you to the registration authority on the day of the transaction.

It is important to note that it is necessary to submit a complete package of documents at once, otherwise the registration authority may not register the transfer of ownership, which will slow down the entire transaction process.

Room donation agreement form

A room in a dormitory, communal or ordinary apartment is considered real estate, and a written form for a deed of gift is required (Article 574 of the Civil Code of the Russian Federation).

The owner has the right to conclude any type of agreement:

Real, according to which the donee will be able to re-register ownership immediately after signing;
Consensual, containing a promise of gift in the future. The donee receives rights to real estate from a certain date or event: wedding, receiving a diploma from a university, etc.

If desired, the donor and the donee can agree on the transfer of real estate as a gift while preserving the former’s right of residence. This condition must be indicated in the deed of gift: after registering the new owner with Rosreestr, the old one will not be able to use the property.

Other Features

The donation of real estate has several features that are important to consider when finalizing the transaction:

If the room was purchased by the donor during marriage using money shared with the spouse, the latter’s notarial consent will be required;
To donate property to a child from 14 to 18 years old, permission from the guardianship authorities is required, which with a high degree of probability will not be issued, because when donating, we are talking about the gratuitous seizure of property;
It is prohibited to give valuables to children under 14 years of age;
Legal entities have the right to donate rooms to their employees and other individuals. If this is provided for in the company's charter, the consent of the remaining owners will be required;
The room is donated after allocating a share of ownership in kind. If it is in common ownership without defining a specific territory belonging to the donor, the transaction is impossible;
If the room is privatized, the transaction will require the consent of the remaining owners. Citizens who voluntarily refused privatization do not express their consent.

Important! A share in kind is allocated provided that it is technically possible to provide a citizen with access to the remaining premises, as well as to equip a separate entrance.

Is it possible to donate a share of a room and how to draw up an agreement?

How to correctly draw up a deed of donation of non-residential premises?

Documentary recording of the room donation agreement

To complete it you will need the following documents:

passport details;
title document for the room;
gift agreement in three copies (one for the parties to the transaction, the third for Rosreestr);
a certificate of the composition of those living in the room at the time of conclusion of the contract;
real estate extract (USRE);
a certificate of state assessment of the room, if the recipient is a stranger;
in the case of donating a room acquired during cohabitation, it is necessary to obtain a notarized consent of the second spouse to complete the transaction (here you can find a sample consent);
if the donee is a child, you need to obtain permission from the parents (guardians) for the transaction (see sample link);
Documents of parents or guardians must also be presented;
if the recipient is a son or daughter, documents confirming the relationship are needed (if there are none, the fact of relationship will need to be proven in court. Read about the rules for filing a claim here);
if the child is adopted, you need a document confirming this fact;
if the agreement is concluded by representatives (trusted persons), then it is necessary to submit a duly notarized power of attorney to conduct the business. It details such points as the subject of the transaction (what exactly will be donated), a detailed description of the room, its size, address, location, names of the donor and recipient.

Please note: a sample sample agreement for donating a room in a communal apartment can be downloaded from the Rosreestr website or here.

In addition to the address and location of the room, all additional premises to which the recipient will have the right to use after the conclusion of the transaction should be listed in detail.

It is necessary to include a note that both parties are mentally healthy and mutually agree to conclude a deal. You can attach the donor's written consent to the transaction.

The notary will attest to the mutual desire to offer/accept the gift, the absence of violence, sanity, and sobriety of the parties to the transaction. This will subsequently be an insurmountable obstacle to challenging the contract in court. The share in the right must be indicated.

You can donate a room not only in a communal apartment, but also in a hostel. To do this, municipal authorities must assign it the status of an apartment building, and donors must have ownership rights to a room in the section. The contract specifies information not only about the room, but also about common areas, indicating the footage.

The gift agreement is drawn up by the parties in simple written form and does not require notarization. As of 2021, the document compiled is not subject to state registration in Rosreestr. Only the transfer of ownership from the donor to the recipient is registered.

As you can see, the execution of a deed of gift for real estate in the form of a room has almost no differences from a deed of gift for any other real estate (for example, donation of a garage).

Features of donating a room

You can donate a room if it is the donor’s private property, and other persons do not have the right to claim it. Before registering a deed of gift, you need to allocate a share in kind by concluding an agreement with other owners or achieving a resolution of the issue through the court.

The specifics of the deal depend on the type of building in which the room is located. Let's look at the subtleties in detail.

In an ordinary apartment

In a regular apartment, you cannot donate just a room, because... You will first have to allocate a share in kind in compliance with technical standards. With a high degree of probability, the deal will not take place: the premises will have to be equipped with a separate entrance, which is very difficult.

An alternative option is to allocate a share in the room in kind if the owners of adjacent apartments want to conclude such a deal. But from a legal and technical point of view this is problematic and unlikely. Instead, it is worth registering a deed of gift, transferring a share in the ownership without actual allocation.

In a communal apartment

A room in a communal apartment is the private property of the citizen, and the remaining premises are in common shared ownership. Such real estate is donated: along with it, the recipient will receive a share in the right of common ownership of the apartment - it is proportional to the size of the room.

Note! There is no need to obtain the consent of the other owners of rooms in the communal apartment. They are given a pre-emptive right only in the event of a sale by one of the owners. Donation is carried out free of charge, and the donor himself chooses who to give the property to.

In dorm

If the donor received ownership of a dorm room through privatization, he can give it to another person. To do this, it is enough that the building is on the balance sheet of municipal authorities and is used for the residence of citizens.

If a dorm room is owned by a municipality or an enterprise (not privatized), it cannot be donated.

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General features of donation

Donation is a transaction in which the donor presents his gift absolutely free of charge to the recipient, that is, transfers ownership rights to him (Civil Code of the Russian Federation, Part 2, Article 32).

Donation has some disadvantages:

payment of a tax in the amount of 13% of the market value of the gift (apartment, room, share in the ownership of housing), if the parties are not closely related (you can read who close relatives are here);
Such a transaction quite often becomes the subject of litigation. Moreover, the reason for this is precisely its gratuitousness - the court may side with the plaintiff if the donor is elderly, in poor health, or belongs to a socially vulnerable part of society;
a gift is always unconditional - it is impossible to register a gift transaction if it contains any conditions.

Positive aspects of giving:

simplicity of the transaction itself. This does not require a huge amount of paperwork;
the donor is not obliged to seek the advice and approval of neighbors to make a gift;
the donee's ownership right arises at the moment of transfer of property and signing of the deed of gift (unless otherwise stated in it).

In addition to the contract, a number of documents are required:

title documents;
privatization agreement;
certificate of inheritance;
purchase and sale agreement, court decision;
certificate of state registration of rights;
if necessary, an additional list of documents.
cadastral passport, technical passport;
originals and copies of passports of the parties.

Who can I give a room to?

You can give a room to any person: a close relative, spouse, friend, acquaintance, even a stranger. The law does not limit the circle of donees.

The exception is situations where donation is prohibited by Art. 575 Civil Code of the Russian Federation:

In favor of an employee of an educational, medical or social institution, if the donor is a patient or client;
An employee of a state or municipal body, a bank employee, if the donation is related to his official duties;
From one commercial organization to another.

The ban does not apply to gifts worth up to 3,000 rubles. Any room is more expensive, so donating it in the above cases will not work.

Do I need to have a deed of gift for a room certified by a notary?

Notarization of the deed of gift confirms that the parties acted voluntarily and had legal capacity when signing.

A notary's signature is only required in a few situations:

The donor is a minor;
A representative acts under a power of attorney on behalf of the donor or recipient;
A share in the property right is given.

The allocation of a share in kind does not cancel the location of the premises in shared ownership, and the DD will have to be certified by a notary.

Cost of notary services

A state fee is paid in favor of the notary in accordance with Art. 333.24 Tax Code of the Russian Federation. The amount is 0.5% of the contract amount, but not less than 300 and not more than 20,000 rubles.

How to give a room to a close relative or stranger: step-by-step instructions

To donate a room in a communal apartment or dormitory in favor of a relative or other person you will need:

Coordination of the transaction. It is recommended to agree in advance with the donee when and in which notary office the DD will be signed.
Collection of documents for property.
Drawing up a deed of gift. This can be done independently or with the help of a lawyer.
Visit to a notary. The parties sign the DD in his presence. Previously, he explains the rights and obligations, responsibilities, and consequences of the transaction.
Submission of documents to Rosreestr or MFC. Registration of DD was canceled several years ago, but the transfer of ownership will have to be registered. Documents are submitted by both parties - the donee and the donor. If citizens are unable to attend, attorneys submit notarized powers of attorney on their behalf.
Obtaining an extract from the Unified State Register of Real Estate. After completing the registration actions, the donee is issued a new extract, where he is indicated as the new owner.

After receiving the documents, an employee of the MFC or Rosreestr will issue a paper receipt, which will indicate the date of receipt of new documents for the room. It takes no more than 10 calendar days to re-register ownership.

Contents of the gift agreement

There are no special requirements for the content of the DD, but it must contain complete information about the transaction, otherwise the registrar will refuse to accept the documents.

What information will you need:

Full name, passport details of the parties;
Address of the room, area that is alienated along with the room, inventory assessment;
Rights and obligations of the parties;
Methods for changing or terminating a DD;
State registration procedure;
The donor’s intention to donate the room to the donee free of charge;
Other conditions;
Signatures of the parties.

Sample contract for donating a room in a communal apartment:

Consultation on document preparation

Documentation

When visiting Rosreestr or the MFC, you will need the passports of the parties, the agreement itself, as well as other documents:

Technical passport if the room is privatized;
Certificate of ownership of the donor, or an extract from the Unified State Register of Real Estate.

Important! Everything is provided in its original form. If necessary, copies will be made of the documents, and the originals will be returned to the owner.

State duty

The fee for registration actions is paid by the donee - 2,000 rubles. For organizations it is higher – 22,000 rubles.

Special cases of donating a room

A room, as a residential property, has quite specific features . Thus, its donation is possible only if it is in the private property of the donor, i.e. is an independent object of law . The procedure for its transformation into such an object of law depends on its belonging to a specific residential premises, of which it is necessarily a part (apartments, communal apartments or dormitories).

Thus, to donate a room in an apartment, the donor must initially separate it from common property into private property (Clause 2 of Article 252 of the Civil Code). According to paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 8 dated August 24, 1993, the allocation of a share of property in kind is possible only if it is technically possible to transfer to the owner not only an isolated premises, but also other premises, as well as equipment for a separate entrance.

Donating a room in a communal apartment

The mode of ownership of a room in a communal apartment presupposes the right of private ownership of the room itself, as well as the right of common shared ownership of the premises in this apartment - kitchen, bathroom, corridor (Article 41 of the Housing Code).

Important

When receiving premises in a communal apartment as a gift, the recipient also receives a share in the common ownership of the apartment itself, the size of which is proportional to the area of the room (Article 42 of the Housing Code).

Paid alienation presupposes the right of owners of other rooms to pre-emptive purchase (Article 250 of the Civil Code). A gift, being a gratuitous transaction, avoids the emergence of such a right, but excludes the possibility of the donor receiving property benefits.

Donating a room share

To donate a share of a room, it must also be allocated. Based on this, donating part of a room located in an ordinary apartment, if there is no technical possibility of allocation, seems impossible . donation of shares in property rights can be carried out

Donating a dorm room

To donate a dorm room, you first need to acquire ownership of it. This is possible through privatization (Federal Law No. 189 dated July 4, 1991), taking into account the norms of the Housing Code of the Russian Federation, which is free until March 1, 2016 .

To carry it out, a combination of a number of factors - the hostel must be on the balance sheet of the municipality, previously it was the property of a state or municipal enterprise, and now it is used for its intended purpose - for citizens to live in it.

After privatization, the rightful owner is free to dispose of the room in the hostel at his own discretion, including donating it to anyone , in accordance with Art. 572 Civil Code.

The procedure for donating a privately owned dorm room is subject to all general rules for donating residential real estate.

Grounds for canceling a room donation agreement

DD of a room in a communal apartment or hostel is canceled on the grounds specified in Art. 578 Civil Code of the Russian Federation:

The death of the donor through the fault of the donee. The heirs will be able to challenge the DD;
Causing harm to the life and health of the donor intentionally through the fault of the donee;
Careless handling of a gift that is of non-property value to the former owner, if there is a risk of irretrievable loss.

Creditors of the donor who was engaged in entrepreneurial activity can cancel the deed of gift if the room was purchased with funds from it, and the agreement was drawn up within six months after the citizen was declared bankrupt.

There are additional grounds: drawing up a DD under the influence of delusion or threats, blackmail, physical or moral violence, in an incapacitated state. Relatives or donors can also demand cancellation if the agreement was drawn up without understanding the specifics of the transaction.

To cancel, you must contact the court at the location of the property.

Arbitrage practice

Cancellation of a deed of gift is problematic, and courts often refuse to satisfy claims. To achieve recognition of a transaction as invalid, you need to provide maximum evidence and be able to justify every phrase in the statement.

There are also examples of positive decisions when people managed to cancel the DD and regain ownership of real estate:

Decision No. 2-359/2016 2-359/2016(2-4769/2015;)~M-4669/2015 2-4769/2015 M-4669/2015 dated December 2, 2015 in case No. 2-359/2016 ;
Decision No. 2-189/2019 2-189/2019~M-159/2019 M-159/2019 dated July 5, 2019 in case No. 2-189/2019;
Decision No. 2-6167/2016 2-913/2017 2-913/2017(2-6167/2016;)~M-5027/2016 M-5027/2016 dated June 5, 2021 in case No. 2-6167/2016 .

So what can the owner give?

In accordance with the law, the owner has the right to dispose of his property.

You can donate both certain rooms in the apartment that the donor uses, owns and disposes of, as well as some parts of the apartment allocated in common ownership - one second part, for example, or two thirds, if we take specific examples.

If the donor owns half of the apartment, then he can only give this half.

If the donor owns an entire apartment and expresses a desire to donate only part of it, having previously allocated the share of the apartment that he wishes to transfer, then this should be done only if it is technically possible to divide the apartment in kind (for example, two kitchens, separate entrances).

If this is not possible, then the following option for resolving this issue remains: common areas remain in the collective shared ownership, and only isolated rooms become the property.

Such division occurs in court and subsequently requires documentation at the registration authority.

But the subsequent registration of a deed of gift for such an apartment follows the general procedure.

If you already have a certificate of ownership of a share in the apartment that you want to donate, then you should begin collecting documents to submit them to the registration authority.

Lawyer's answers to frequently asked questions

I would like to donate a room in a dorm. Do neighbors need consent?

No, consent is not required, because it is an independent property.

Do I need to pay taxes if I received a room as a gift?

Yes, personal income tax of 13% is paid on the cadastral value of housing. But if the donee is a close relative of the donor (brother, sister, parent, spouse), you will not have to pay tax.

Do you need the consent of the guardianship authorities to donate the room in which the children are registered?

No, guardianship permission is not required. It must be obtained only when selling or donating real estate if the owner is a minor.

We accidentally made a mistake in the contract, indicating that 2 rooms were being given instead of three. How to fix?

Create a new deed of gift. If the DD is certified by a notary, make corrections and have it certified by him again.

Is it necessary to draw up an acceptance certificate when donating a dorm room?

Not required, but recommended. The act is attached to the agreement.