Igor Shavrov, a well-known lawyer who manages the Shavrov and Partners law firm, explains how to correctly draw up a donation agreement and what pitfalls there are in this process.
First, in order for the agreement to take place, only the will of the giver is not enough, but the desire of the recipient of the gift to receive it is also necessary. When it is drawn up, both parties must appear before the notary.
But the notarial form for such a contract is not always mandatory. If you give your friend a bicycle, simply handing it over with the words that it is a gift, this already means that there is an oral donation agreement between you. Contracts for the donation of valuable movable property and cash, the sum of which exceeds UAH 850, must be drawn up in writing.
Preparation stages:
To give something, you need to have something. It is impossible to give them away without documents certifying ownership of real estate or a vehicle. If such documents were lost, then it is possible to make a duplicate or obtain a court decision on recognition of ownership.
It is necessary to contact a notary for consultation. He will check your real estate for the presence or absence of arrests or other prohibitions on alienation. There are very frequent situations when only during the transaction it turns out that the donor has not paid a traffic fine or a loan, so the executive service has seized his property. In this case, it will not be possible to give an apartment, land or a car before the arrest is lifted. Removing the arrest is already a story for the second video, but you need to know about its availability in advance. Information about the existence of real estate arrests can be obtained from any lawyer or lawyer, and if you have an electronic digital signature, you can get it yourself.
Next, it is necessary to make an assessment of the property. There must be an assessment report, because all duties and taxes are calculated from the amount indicated in it. Such an assessment can be done independently by contacting a specialist who has permission to carry out the assessment.
Then there is an important aspect. Action optional for donating an apartment, but mandatory for donating a private house. It is now impossible to give a house without having a properly designed land under it. A notary simply will not certify such a contract. Properly designed land appears when it has a cadastral number. Therefore, an extract from the State Cadastre will need to be provided to confirm the existence of such a number.
It is also necessary to check that you have a valid passport (if it is a book-passport, then a photograph of reaching the age must be pasted) and a certificate with a tax number. Usually they forget about such trifles, but when making a notarial transaction, the notary can send you to get a new passport (ID card). If the party is a foreigner, then before the transaction he must obtain an individual tax number from the tax authorities.
In addition, if the donor is married and this property was acquired during marriage, then a notary must obtain the notarial consent of the second spouse for such a transaction. If the property is the personal property of the spouse, then the second's consent is not required.
What about taxes?
When donating real estate, it is necessary to pay attention to the degree of kinship.
If the property is donated by a relative of the first or second degree of kinship (father, mother, husband, wife, children, brother, sister), then the tax is zero.
If the gift is not a close relative or just a stranger, then the income is taxed at the rate of 5% of personal income tax and 1,5% of the military levy.
And if the gift is received from a non-resident of the country or given to a non-resident, a tax rate of 18% of personal income tax and another 1,5% of the military levy is applied.
But let's not forget that regardless of whether the property is given to relatives or not, the donor is still obliged to pay 1% of the state tax (of the assessed value of the property) and notary services of UAH 4. (the cost is established by a notary).
Nuances of termination of the donation contract
The donor has the right to refuse the contract for the future (if the property has not yet been transferred) if his financial situation has deteriorated.
A gift contract may establish an obligation for the person who received the gift to perform some action in relation to a third party or the donor (payment of maintenance, the right to use the gift for life). Very often, donors forget about such an opportunity to establish an obligation, and often those to whom they gave, for example, an apartment, go to court and evict the donors themselves from their apartments. Therefore, if the donor does not want to lose the right to use the gift, then it is necessary to think about it in advance and provide such a provision in the contract. If the obligation is not fulfilled, the contract may be terminated.
Note that the donation contract can be terminated only in the presence of circumstances provided for by law at the request of the donor:
intentional commission of a criminal offense against the life, health, property of the donor, his parents, wife (husband) or children by those who received the gift. In the case of the donor's death, which was caused by intentional criminal actions of the donee — taking the life of the donor, the donor's heirs receive the right to demand the termination of the donation contract.
creates a threat of irretrievable loss of the gift, which has a greater non-property value for the donor (for example, the donor has memories of certain events associated with the subject of the donation contract). That is, if such a gift is threatened with irretrievable loss due to the giftee's fault, the donor has the right to terminate the donation contract. Such termination of the transaction is aimed at preventing the loss of the gift. However, upon termination of the donation agreement on this basis, it is necessary to prove that the recipient was aware of the greater non-property value of the gift for the donor. The latter, in turn, obliges the recipient to treat the gift carefully and conscientiously and to ensure its safety. Therefore, the value of the gift for the donor can be directly indicated in the contract, if such a contract is in writing.
carelessly treats a thing constituting a cultural value, as a result of which this thing may be destroyed or significantly damaged.
A separate ground for termination of the donation contract at the initiative of the donor is the negligent attitude of the donor to the property, which represents historical, scientific or cultural value. But the donor's opinion that the giftee uses the thing not as the donor wants it to be will not be grounds for termination.
Separately, the law defines the possibility of terminating a donation contract, the subject of which is only immovable or other personally valuable property. Therefore, if the gift is movable property of insignificant value, the donor has no right to terminate such an agreement and return the gift against the will of the recipient.
Also, the right to cancel under such conditions is possible only if the gift is kept and not transferred to a third party.
The statute of limitations of one hour, not three years, applies to requests for termination of the donation agreement
The right to terminate the contract arises at certain points:
from the moment of entry into legal force of the indictment of the court;
from the moment of the act of the donee, which creates a threat of irretrievable loss of the gift;
from the moment of committing actions or allowing inaction by the giftee, which testify to a negligent attitude towards a gift representing historical, scientific or cultural value.
However, the right is urgent, because it exists as long as the thing that is the subject of the contract exists. If the gift is destroyed, the right to compensation arises
The consequence of such a termination is the application of restitution, that is, the return of the parties to their original state. In connection with this, the donee is obliged to return to the donor the thing that is the subject of the contract, taking into account possible natural wear and tear during the period of stay with the donee.
This means that the recipient cannot offer the giver monetary compensation instead of the gift or reimburse the cost of the gift if he kept it. Thus, the donated item is subject to return, regardless of its condition. At the same time, the donor is not entitled to refuse to accept such an item on the grounds that it has lost its purpose or its significant deterioration.
