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It will be possible to gift an apartment or a summer house to relatives only through a notary
Want to give your child an apartment? To do this, you may need to go to a notary in the near future, pay a fee and explain that you are indeed of sound mind and understand the consequences of your actions. And in general, registration for futures trading, even for close relatives, is more burdensome and expensive than buying and selling.
The reason is the upcoming changes in legislation. The goal is to better protect homeowners from the evil intentions of strangers and even close relatives. However, many experts fear that the case may end up according to the well-known scenario of "hoping for the best, but it always worked out."
On September 18, the State Duma adopted in the first reading a bill on amendments to the Civil Code. Gift transactions between people who are not close relatives must be notarized.
The motivation for the actions here is clear, as is the explanation of the document, which details that donations between relatives are a natural form of civil and family interaction. However, a person's desire to suddenly give their apartment to a stranger is an "indicator of social risk," and in practice such contracts "are often concluded as a result of the donor's misunderstanding of the nature of the transaction, which leads to abuse of the right of ownership." The rights of the beneficiary. "entails and contains signs of fictitious and falsified transactions, especially when the donor is a member of socially vulnerable groups."
There is logic in this. Everyone has heard the story of how another pensioner rented out her apartment to a telephone scammer, thinking that she would save someone or something and that the apartment would be returned to her. The task of criminals in such situations is made easier by the fact that gift agreements can now be concluded in simple written form. In other words, you just need to come to the MFC with your document. Closing this “loophole” is a very good and smart idea.
However, during the discussion of the bill, the idea of "protecting grandmothers" was somewhat transformed. They decided to protect everyone at the same time, including spouses and close relatives. As stated in the government's response to the bill, "the presence of marriage and/or a close relationship between the donor and the donee does not exclude the possibility of infringement of the donor's property interests, including as a result of an offense. The beneficiary established by the presence of judicial practice in civil cases on claims under a recognized gift agreement is null and void." it is.
"Statistics of the last five years show that more than 20% of cases of fraud in the sphere of real estate transactions are committed among close people," said Irina, First Deputy Head of the State Duma Committee on State Construction and Legislation. The Bashkortostan branch of the Russian Bar Association submitted a bill to the State Duma. Pankin (the bill was submitted by a deputy of the Khuraltai Parliament of the Republic of Bashkortostan).
In fact, she did not specify what part of this 20% came from futures contracts. According to experts, no one has ever seen such statistics. It also does not specify under what circumstances these transactions are contested. However, the law provides for the possibility of cancellation not only due to "misunderstanding" of the previous owner, but also for objective reasons (Article 578 of the Civil Code). If the donor incorrectly transferred valuables to the donor or if the donation is a violation of the bankruptcy law. Even if the donor is alive, he has the right to revoke the gift.
Nevertheless, the deputy minister considered it appropriate to “extend the obligation of notarization of real estate gift agreements to all participants in civil law transactions without exception.”
It is expected that the bill will be revised in the second reading taking into account these proposals.
Currently, mandatory notarization of real estate transactions is required only in limited cases. This is necessary if the transaction has many complex conditions and hidden nuances, or if one of the owners is a minor or incapacitated person who is unable to make decisions independently. At the same time, the law does not prohibit voluntary certification of transactions if the participants are not sure of each other and intend to carry out everything with the participation of a notary.
This option has its advantages. The notary checks the documents and draws up competent contracts, his duties also include explaining the consequences of transactions and ensuring the "good faith" of the parties and actions of their own free will.
But there are also disadvantages. Notary services are not free. (For transactions requiring notarization, the fee is lower by law than if the citizen hires a notary of his own choice. But still - as a rule, 0.5% of the contract amount. In addition, you will have to pay legal costs and technical services). In addition, additional procedures take time. And in some cases, this is difficult in principle. This is the case, for example, with military personnel of the Northern Military District zone.
What to do if people do not really understand what they are doing and what it means to "give away an apartment" without a notary (and all the associated costs)? Therefore, no one prevents an adult and capable person from consulting a lawyer on any issue, and some socially vulnerable categories can get such a consultation at the MFC for free. Or order our services to check the purity of your transaction. This is what many people do who know what they are doing.
It is important to understand that regardless of whether the gift agreement is notarized or not, according to the law, such transactions can still be cancelled due to objective circumstances (recall that this is stated in Article 578 of the Law). ). Civil Code of the Russian Federation), the notary cannot protect it.
Those who need it will pass by.
Initially, lawyers – if we are talking about “non-relatives” – supported the bill. There is no doubt about it. There is a problem of morale, and lonely elderly people need to be protected somehow. However, the desire to immediately include in the “risk group” everyone who wants to give someone property is called into question. It seems that we are constantly talking about traditional family values. In particular, this is trust between family members. and the natural desire to take care of each other financially. The State Duma is now calling for the termination of the marriage contract on the grounds that it does not correspond to “traditional values”. And what does this have to do with the mandatory notarization of real estate gifts between family members, in terms of recognizing gifts as “risky”?
I also have a more specific question.
"Developers demonstrate a very inconsistent approach to notarial registration of transactions," says Susana Kirakosyan, PhD in Law, Associate Professor, Advisor to AB "BVMP", Chairman of the Subcommittee of the Chamber. Industry of the Russian Federation for the Development of Business in the Sphere of Management of Residential Real Estate. - On the one hand, we are talking about mandatory notarial certification of futures contracts. Meanwhile, a proposal was made to abolish the notarial form of transfer of shares of joint property rights concluded between participants in joint lease. Many illegal actions are also committed when selling or giving away shares. This inconsistent legislative activity is apparently the result of a misunderstanding of the real estate market. The opinions of individual representatives are not supported by analysis, statistics and scientific research, but are based on rough calculations made "on the knee". However, amending the law on this basis is unacceptable!
— The issues raised in the draft law are relevant and undoubtedly require solutions (including at the legislative level). At the same time, the methods for solving the problems proposed in the draft law cannot but raise doubts." The situation is explained by Anastasia Dunicheva, partner at Nartex Legal Group, lawyer at the Leningrad Regional Bar Association. — The description of the draft law does not include statistics showing what share of disputed transactions are notarized transactions and transactions concluded in simple written form. I believe that an analysis of these statistics is necessary for considering draft laws that will impose an additional financial and bureaucratic burden on Russian citizens. Only by receiving and analyzing these statistics will we be able to determine whether notarization of transactions really reduces the risk of subsequent problems.
As the lawyer also noted, a simple notarization of the contract will not protect you from fraudsters. The notary is obliged to explain the purpose and consequences of the transaction, but does not have the right to refuse to complete the transaction if the citizen insists on it.
— Fraudsters often try to "insure themselves" and conclude a deal with the victim in a notarized form, and then use this fact for protection. I changed my mind and want to terminate the concluded agreement"), — says Anastasia Dunicheva. — I believe that ensuring social protection of citizens should be achieved by comprehensive measures. This means promptly limiting the legal capacity of citizens who cannot fully understand the significance of their actions, and prohibiting them from giving away the only housing they own.
One of the problems that arises from the complexity of house donations is that as donations become less popular, the number of fictitious sales and purchase transactions that can be concluded in simple written form will increase. That is, if you really donate an apartment, then the transaction will actually be free, no money will be transferred, and everything will be formalized as if a purchase and sale had taken place. In simple intra-family transactions, when there is a desire to "give up the apartment" to other family members, there is usually also a desire to do it more simply and cheaply. And it does not matter what it is called.
But there are differences in the housing market. An increase in fraudulent transactions will certainly not promote transparency. And that in itself could lead to more fraud and legal disputes.