What the law says
In accordance with the Civil Code of the Russian Federation, a citizen has the right to independently dispose of his property: sell, exchange, donate. In the latter case, when exercising his rights, the owner is obliged to take into account the provisions of Art. 572 of the Civil Code of the Russian Federation.
Donation implies that some movable or immovable property is transferred free of charge and with the good will of the previous owner to the new owner. If a donation of an apartment, house, townhouse is intended, then an agreement is concluded confirming the transfer of ownership. On its basis, changes in the title of real estate are registered in the Unified State Register of Real Estate.
Everything described earlier is possible in one case - the property belongs to the donor, no encumbrances are imposed on it in favor of third parties, for example, a bank.
If the apartment or cottage was purchased with credit money, the contract has not yet been closed, it is necessary to carefully study the Federal Law “On Mortgage” - Federal Law dated July 16, 1998 N 102-FZ (as amended on December 31, 2017) “On Mortgage (Pledge of Real Estate)” (with amendments and additions, effective from 01/01/2019). In accordance with paragraph 1 of Art. 37 of this regulatory act, any alienation of collateral property is possible only with the consent of the creditor.
Step-by-step instruction
- First of all, you need to decide who exactly you want to give the apartment to.
- Next, review your mortgage agreement. If he has permission to carry out such a transaction, then you can come to the bank.
- At the bank's office, employees will check your credit history, as well as find out your solvency and other documents that characterize you as a client (call the bank in advance, find out where and when you can approach them with your question).
- If the data received about you meets the necessary requirements, you proceed to the next step.
- The bank must give you written permission stating that it is not against you making such a transaction.
- After this, you can draw up a gift agreement with a notary, or without certification by one.
- Then you register ownership of the person in respect of whom you made the transaction.
It would seem that everything is very simple, but this transaction has a number of nuances. Let's get to know them in more detail
Where to contact?
In order to receive clarification about the possibility or impossibility of making a donation, you need to go to the office of the credit institution that issued your mortgage.
It is very important that the office of this company is located in the same region as you, and also preferably in the city where you received mortgage lending and where you purchased housing. It is there that you will be given all the instructions, whether the transaction will be refused or approved.
What documents will be needed?
In order for your proposals to be considered, you must draw up an application for permission to carry out a gift agreement, attach a photocopy of your passport, a copy of the mortgage loan agreement, documentation for the apartment, as well as a draft gift agreement that you want to draw up.
In addition, you may need additional documents that indicate the status of your mortgage account, and so on.
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Design features
A special feature of this agreement is the direct participation of the bank. The agreement cannot be executed until there is permission from the credit institution.
The gift agreement must necessarily contain the fact that the property is pledged to the bank, however, at the time of the donation, the right to it passes from the bank to the new owner. At the same time, the donor is not relieved of the burden of making payments to the credit institution.
This condition must be indicated in the contract, and without it it is impossible to register property rights in Rosreestr.
How much will you have to spend?
The gift transaction is absolutely free, but only if it occurs between close relatives.
However, if the transaction is carried out between citizens who are strangers or distant relatives to each other, then the parties are required to pay 13% of the amount of the property.
The agreement specifies which party is obliged to pay this amount in the form of taxes to the state.
In addition, registration of new property rights for a new person implies a state duty to Rosreestr in the amount of two and a half thousand rubles.
If you use the services of a notary, they are also paid. But obtaining bank permission is a free procedure.
What is the time frame for the transaction?
The donation transaction is carried out immediately upon receipt of permission from the bank.
As a rule, registration with Rosreestr will take one working week.
The bank's consideration of your application for permission to make a gift may also take from three working days to one week, depending on the workload of the credit institution.
On average, this transaction can be completed in less than one month.
Who will be allowed to donate an apartment?
Is it possible to donate a house with a mortgage? What about an apartment? For a bank, changing a borrower is a troublesome process. Donating living space for which the debt has not yet been repaid implies that not only square meters, but also loan obligations are transferred to the new owner. He will have to make monthly payments in the future, pay for insurance, etc.
The likelihood of approval of the transaction increases if the original borrower has paid more than 50% of the total amount under the agreement.
Accordingly, the recipient's candidacy is subject to careful consideration and study. The new borrower must be solvent and within the age limits established by the specific lender. And the “old” debtor will definitely be required to prove the reasonableness and necessity of such a transfer of obligations.
If we are talking about the presence of a serious illness, an extract from the medical record and a certificate from a specialized doctor will be useful. If the financial situation worsens - a dismissal order, a copy of the work record book or a 2-NDFL certificate.
Important! If the lender's security service decides that the risks of non-repayment of funds increase with a change of owner, the transaction will be prohibited.
Below we consider the attitude of credit structures to different categories of persons - apartment recipients.
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How to re-issue a mortgage to another person: procedure and conditions is detailed in another article.
The apartment is transferred to a minor or relative
Is it possible to give an apartment with a mortgage to your daughter or son? The option is unlikely if he is not yet 18 years old. He is considered incompetent and does not yet have his own income sufficient to pay off the debt. In 99% of cases, the bank will not agree to a change of owner.
Assuring parents that they will take over the loan payments themselves or going to court to recognize the recipient as legally competent will not help. Banks insure against such risks and in most cases stipulate in the agreement a ban on transferring property to a minor.
If, for various reasons, the borrower wants the apartment or house to go to a specific son/daughter/nephew, he can draw up a will and have it certified by a notary. This procedure is not prohibited by law.
Is it possible to gift an apartment with a mortgage to a relative? Yes, provided that he meets the bank's requirements, is solvent, has not reached the upper age limit set by the lender, and does not have his own credit obligations.
Lenders do not approve the procedure of gifting real estate to elderly people, regardless of the degree of relationship. It is believed that the only stable income is a pension, but it will not be enough to pay off the debt. An exception is the provision of additional collateral, guarantors or co-borrowers.
Gift recipient - spouse
In accordance with current legislation, spouses automatically become co-borrowers under the Credit (Mortgage) Agreement and co-owners of the purchased property.
Important! Banks strongly “recommend” registering living space not as shared ownership, but as common joint ownership.
There are only two cases when a spouse is not included in the list of co-borrowers:
- he/she is not a citizen of Russia. Some banks refuse such restrictions and issue loans to residents of the Russian Federation. But most of the creditors are conservative, not wanting to cooperate with those who can leave the country at any time and never return here;
- The spouses entered into a prenuptial agreement providing for separate ownership of real estate. In this case, the husband/wife does not become co-borrowers and cannot claim a share in the purchased apartment.
The process of donating a mortgaged apartment to a spouse is considered inappropriate and is not practiced. Initially, the contract implies a community of ownership, and therefore responsibility. There may be exceptions, but in a very limited number of cases, for example:
- the loan agreement was signed by the husband/wife before marriage;
- The apartment was purchased during marriage, but the union broke up. One of the spouses wants to get rid of unnecessary property and transfer it to the other.
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Regardless of the reason for the transfer of square meters, the bank will assess the recipient’s solvency, taking into account all the requirements and rules in force in the credit institution.
Donating an apartment to a co-borrower
Co-borrowers are special people in the relationship between mortgagees and title borrowers. They are fully liable for debts to the creditor, but do not always claim square meters. Is it possible to gift an apartment with a mortgage to a co-borrower (not husband or wife)? The issue requires separate consideration.
The relationship between the main debtor and each co-borrower is governed by additional agreements. For example, he is allocated a share in an apartment in the amount of 25-30-40-50%, provided that he deposits the required amount into the lender’s account. If the main debtor, for various reasons, stops paying under the agreement, the bank automatically switches its attention to the co-borrower. He won't even have to go to court for this.
Transferring the debt to a co-borrower is possible (the situation when a husband/wife becomes a co-borrower was discussed earlier). For example, the main debtor wants to transfer both obligations and property to a second person specified in the contract due to health reasons, due to the inability to make payments in the future.
Important! Regardless of who the borrower wants to give his property to, the lender will calculate his risks. If, based on the results of the analysis, it is decided that the likelihood of non-return of money increases, the transaction will be prohibited.
In order for the lender to treat the procedure favorably, the recipient must have an income higher than that of the current payer. He should not have debts in banking structures or negative entries in his credit history.
Is it possible for a co-borrower to take out a mortgage and how to increase the chance of approval - is described in detail in another article on our website.
What legislation governs this transaction?
If you do not agree with the above rules, which imply the fact that the ability to dispose of a mortgage, in particular real estate, depends only on the credit institution, then we suggest that you familiarize yourself with a number of regulations.
Any disposition, including donation of real estate taken on a mortgage, is possible only with the permission of the lender, due to the powers of the mortgagee. This is stated in Article 37 of Federal Law No. 102. This law, which covers mortgage issues, regulates the procedure for transferring housing as collateral to a bank.
If we are talking about rights, as well as encumbrances that are imposed on both sides, they are spelled out in Law 122, which talks about the state registration of rights to acquired property.
If you need to become familiar with the issues of bail, it is advisable to refer to the Civil Code, Article 329.
Failure of the debtor to fulfill his obligations entails sanctions in the form of return of real estate, which is regulated by the Civil Code, Article 334. Having an idea of the legislative framework, and therefore the legal support of this issue, you can clearly understand what you are entitled to and what you are not entitled to permitted by law.
What documents will be needed to register a donation?
To donate an apartment with a mortgage, if the lender has given his permission, the following documents will be required:
- civil passports of the donor and recipient;
- documents confirming ownership of real estate (extract from the Unified State Register of Real Estate, purchase and sale agreement);
- technical passport for the facility;
- consent of the spouse if the property was purchased during marriage;
- an extract from the house register or a certificate from the passport office with information about those registered;
- certificate from guardianship if the rights of minors are affected;
- documented permission of the lender.
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The donation agreement specifies:
- information about the donor, recipient and mortgagee;
- reference to title documents - basis of ownership;
- object parameters (number of floors, area, number of rooms, etc.) based on technical and cadastral passports;
- the rights and obligations of each party under the agreement and a reference to the fact that the property is transferred free of charge.
A separate clause in the contract states that the recipient knows that an encumbrance has been placed on the apartment or house. The recipient agrees that he accepts not only the property, but also all obligations associated with it, including debts on interest, penalties and fines. The agreement is signed by the donor, recipient and representative of the creditor bank.
Is it possible to donate a share of an apartment in a mortgage? Will the application procedure be different? If the borrower wants to transfer not all of the living space, but part of it, to a relative or a complete stranger, the bank’s permission and the drawing up of a tripartite agreement will also be required.
How to draw up a deed of gift for an apartment with a mortgage? Features of compilation
If the borrower has received written consent from the bank to donate a mortgage, then it is worth thinking about drawing up a deed of gift.
The document is drawn up in writing; the text of the contract must reflect the following information:
- information about the parties to the transaction: the donor, the recipient and the creditor (bank);
- information about the documents on the basis of which the apartment is the property of the donor;
- documents regarding the subject of the transaction (technical passport, etc.);
- information that the apartment is being donated free of charge;
- rights and obligations of the parties to the transaction (indicate that the recipient receives the obligation to pay the balance of the mortgage debt);
- procedure for transferring an apartment;
- information that the transferred housing is pledged to the bank;
- signatures of the parties (donor, recipient, responsible bank employee).
The deed of gift does not need to be notarized . The main thing is that the agreement is correctly drawn up and registered with Rosreestr.
You must complete the deed of gift registration procedure within 12 months. If you do not meet this deadline, then the contract will lose its legal force.
Registration of a donation agreement for a mortgaged apartment
According to Part 3 of Art. 574 of the Civil Code of the Russian Federation, the deed of gift must be drawn up in writing and it must undergo state registration. Therefore, after signing the agreement, it is necessary to submit all necessary documents to Rosreestr.
It is mandatory to provide a mortgage agreement, which will indicate the possibility of transferring the subject of the agreement to another person as a gift. Also, a Rosreestr employee will not accept documents from the applicant if he does not provide written consent from the bank to carry out the transaction.
Only if you have this document, as well as the mortgage agreement itself, can you register a deed of gift and subsequently transfer the apartment to the donee.
Donation procedure
To donate an apartment with a mortgage, you will have to go through the following steps:
- obtaining the lender's consent;
- collection of documents;
- drawing up a deed of gift indicating all the important points;
- submitting documents to Rosreestr to make changes to registration records.
Important! The list above is not complete or exhaustive. The pledgee has the right to request additional information, for example, to verify the identity and solvency of the recipient.
Is it possible to donate part of an apartment with a mortgage or the entire living space, bypassing the bank? What happens if you draw up an agreement yourself and submit documents for registration?
The best case scenario for the borrower is nothing. The registrar will check the status of the property and reject the application due to encumbrances. At worst, the information will be passed on to the mortgagee. The latter has the right:
- protest the transaction in court;
- terminate the contract unilaterally and demand early payment of the entire amount;
- sell the apartment - the proceeds are used to pay off the debt.
Bank consent
It is important before drawing up a deed of gift to carefully review your mortgage agreement in search of:
- the ability to donate housing without notifying the bank;
- find a solvent new borrower whose candidacy you will definitely like;
- convince the bank to consider such a solution as profitable.
And it is advisable to choose a relative, otherwise the donee will have to pay 13% tax. The financial behavior of the donor also matters - he makes payments on time and does not allow delays.
