- What is a donation
- How to challenge a gift
- How to challenge a dedication
- An example from judicial practice
Making a donation is a very serious and responsible step, especially if housing is donated. The one who makes such a gift (the giver) must understand what such a transaction is and what are its consequences.
What is a donation
The donation agreement provides for the free transfer of the right to an apartment to another person (donee) without any conditions and reservations.
Important. The donation only after its state registration will enter into full force, and not after the donation agreement is signed, as many believe.
Will not be a donation agreement:
- an agreement that provides for the transfer of an apartment after the donor has died (this will be a will);
- agreement providing for life-long residence in the donor’s apartment.
From the above, it can be seen that before taking such a crucial step as donating an apartment, you need to weigh all the possible consequences of such an agreement. However, there are situations when the donor did not take into account all the nuances or change his mind and then the question may arise: is it possible to cancel the contract and return the donated apartment back?
How to challenge a gift
The moments in life in which it may become necessary to challenge the dedication are different, consider the most common:
- If the donee mistreats the apartment (for example, has carried out an illegal redevelopment that threatens the integrity of the building structure).
- If the donee tried or harmed the donor with a threat to life, as well as his family, or made an attempt on his life.
- If the donor, when concluding the transaction, was not legally capable and did not understand the meaning of the actions that he performs (mental disorder, state of intoxication).
- The donation was made in order to hide another contract (sham deal). As a rule, this is done in order to circumvent the prohibition on the right of first purchase in shared ownership..
- The design of the gift does not meet the requirements of the law (there is no state registration of rights, the form of the contract has been violated, etc.).
Advice.To avoid subsequently challenging the transaction on these grounds, it is better to conclude a deed of gift with a notary who will ensure compliance with the requirements of the law when concluding the transaction.
- The gift deed was signed under threats, duress and does not correspond to the will of the donor.
- The donor, when signing the donation, did not understand the essence of such a transaction (most often such situations occur with older people when they are promised life support and material support for using the gift or the possibility of permanent residence in the donated apartment).
- There is no consent of the second spouse if joint property is donated. You can issue such consent with a notary.
- Signing a contract in difficult life circumstances.
- Death of the donee. The donor can insist on the cancellation of the donation if he outlived the donee. But in this case, such a right of the donor must necessarily be fixed in the donation agreement.
Advice.In the dedication, a condition can be stipulated according to which, if the donee dies before the donor, the donor will have the right to cancel the donation and the apartment will go back to him, and not inherit the family of the deceased.
These are not all cases that serve as grounds for canceling the donation agreement. The legislation also provides for particular situations in which the deed of gift can be challenged. For example, if it is committed by an individual entrepreneur who is in a state of bankruptcy or on the eve of it.
There are grounds on which the registration of a gift is impossible. Failure to comply with them will also be the basis to challenge the transaction. Such grounds include:
- donations made on behalf of minor children;
- donation on behalf of the incapacitated;
- donation on behalf of patients;
- donation to civil servants as gratitude for the performance of their direct duties;
- prohibits legislation and donations between commercial organizations.
In case of non-observance of these conditions, the transaction may be declared invalid with the subsequent return of the apartment to the donor.
How to challenge a dedication
Only a court can terminate a deed of gift.
Most often, donors who have become victims of circumstances or persons who have accepted an apartment from them as a gift insist on the cancellation of the donation. However, they are not the only ones to challenge the deal. The following can insist on canceling the deed of gift:
- the donor, if he has substantial grounds for this;
- third parties, after the donor dies or is declared incapacitated (during the donor’s lifetime, third party claims will not be justified, since he can dispose of the property at his own discretion), in this case, any person can initiate the cancellation of the donation contract or challenge it who is interested in this;
- the donee may himself refuse to accept the gift, such a refusal must occur before accepting the gift, in which case the gift will be terminated.
We will analyze step by step what is needed to challenge the dedication.
Step 1. Consult with a legal expert
Challenging donation agreements is a rather complex type of civil cases, therefore it is advisable to involve a professional attorney or a lawyer in this case, if this is not possible, then at least get competent advice and assistance in developing a legal position.
Step 2. Collect the evidence base
Unlike other types of contract, it is quite difficult to challenge the deed of gift in court; this will require good reasons.
Evidence can be:
- letters, photographs;
- medical documents (in case of harm to health);
- medical documents confirming the mental state of the donor;
- receipts confirming that the money was received, in case of concealment under the guise of a donation of an actual payment agreement (purchase and sale);
- certificates from law enforcement agencies, copies of materials in the criminal case, testimony of witnesses, interrogation protocols;
- documents confirming death (if the gifted person died);
- other documents proving the claim.
Step 3. Comply with the terms for applying to the court (limitation period)
The time period is very important when challenging a deed of gift. The sooner the claim is filed, the more chances to restore justice. However, the legislation provides for this category of cases and time limits, after which the filing of a claim will no longer be possible. According to general rules, this is three years from the date of the conclusion of the deed of.
Step 4. File a claim
To file a claim you need:
1. Pay the state fee.
2. Draw up a claim. The claim must indicate:
- your data (as a plaintiff);
- the data of your opponent to whom the claim is brought (the defendant);
- state your legal position (indicate the reason and grounds for challenging the gift);
- provide links to the law confirming your legal position;
- correctly formulate the claim;
- list the documents that you attach to the claim.
3. The following documents must be attached to the claim:
- copies of the deed;
- copies of documents confirming your identity;
- documents that are evidence in the case
- documents confirming payment of the fee.
4. Submit a claim to the court. In this case, the claim must be filed at the place where the apartment is located.
When turning to the courts, you need to understand that it is possible to seek justice in court when there are good reasons for canceling the deed of gift and the opportunity to prove them. The injustice that does not always seem to the donor and the violation of his rights in practice has legal grounds for canceling the donation.
An example from judicial practice
The plaintiff filed a demand to declare the deed of gift invalid. He insisted that the defendant, with whom he was married, persuaded him to re-register the house with her, promising him in return to leave until his death. Immediately after this, their relationship deteriorated sharply, the defendant refused to help him in his everyday life and take care of him, and re-registered the house to her son. The plaintiff insisted that he was mistaken in determining the legal nature of the transaction. The court did not satisfy his claim. The decision states that the house was handed over 8 years ago, the transaction was executed correctly and certified by a notary. The plaintiff did not provide any documents proving the agreements on life support.
Summing up, I would like to note that a donation is not the only way to transfer an apartment to your loved ones, but if you nevertheless decide to make such a gift, let your generosity be rewarded with the gratitude and responsibility of those you gave, so that you do not have to think about questions of challenging the donation.