Donation agreement: judicial practice. Cancellation of a gift agreement judicial practice Judicial practice cancellation of a gift agreement

A fairly popular type of transaction in civil circulation, which is most often concluded between relatives or close people, is a gift agreement. It represents a transaction in which one party transfers the subject of the agreement to another (an apartment, a share of property, a car, etc.) without the presence of counter obligations, transfer of a thing or a right. As a rule, gift agreements are concluded between close people or relatives.

Recognition of a gift agreement as an imaginary transaction

Often, the parties actually make a transaction that has obligations without understanding the legal nature of the gift agreement or having some hidden intent, thereby committing a civil offense. The consequence of such an action may be the recognition of the gift agreement as an imaginary transaction, with the application of all legal consequences that arise from actual property relations. As shown judicial practice, such transactions are quite often the subject of disputes in lawsuits regarding the recognition of gift agreements as imaginary transactions.

Most often, under the guise of a gift agreement, contracts for the purchase and sale of property or exchange are carried out. The most common way is to transfer ownership of a part (share of an apartment, house or other property). The purpose of making a sham transaction is the desire to ignore the rights of a co-owner of the property to the priority acquisition of housing (a share of an apartment, house or other property). This right of a co-owner is determined by the provisions of Art. 250 Civil Code of Russia. Only in the case when a share of jointly owned property is donated, the owner does not have the preemptive right of priority in acquiring the property. Such a transaction is defined by civil law as void, as directly indicated by Article 170 of the Civil Code of Russia.

If a co-owner of the property identifies the fact of carrying out such an imaginary (feigned) transaction, it can be challenged in court with the application of all legal consequences. In this case, the plaintiff’s claims should be demands for the transfer of the rights and obligations of the buyer under the agreement to him due to the fact that the agreement for the donation of a share of an apartment, house or other property was an imaginary transaction, and the parties actually entered into a purchase and sale agreement between themselves. In this case, the rules of purchase and sale of shares, and not the gift agreement, must be applied to the relations of the parties. This legal position is set out in paragraph 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10/22.

An example of such a decision is the Appeal ruling of the Ulyanovsk Regional Court in case No. 33-1567/2013 dated May 21, 2013. It follows that the plaintiff’s demands to recognize the transaction under the gift agreement as sham and to transfer the rights and obligations of the buyer to him as having a preemptive right purchases were satisfied. One of the grounds for making such a decision was the fact that the original receipt was presented to the court, which indicates the existence of an obligatory relationship between the parties under the gift agreement.

Recognition of a gift agreement as not concluded

A rather ambiguous, but frequent case in judicial practice is the situation associated with the death of the donor before the moment when the donee has made state registration of the right to a donated apartment or house, or part of any property subject to mandatory state registration. registration.

One of the typical examples of such a case in judicial practice is the situation described in the decision of the Moskovsky District Court of Nizhny Novgorod dated June 14, 2012 in case No. 2-854/2012-M-422/2012, which arose between relatives. The plaintiff (donee) filed a claim for recognition of the validity of the gift agreement, after his refusal in the state. registration by an authorized body in connection with the death of the donor. At the same time, the defendant in the case, in addition to the state body. registration was a relative who had an inheritance right to the disputed apartment, since it was not registered, which means, despite the conclusion of a donation agreement between the deceased and the plaintiff, the transfer of the right to the donee did not occur, and the apartment became an inherited property. The court refused to satisfy the plaintiff’s demands due to the fact that the actions indicating the acceptance of the gift, that is, the state. registration of the apartment was not carried out until the death of the donor (Article 574 of the Civil Code of Russia), therefore he did not have ownership rights, and the transfer of ownership did not occur.

A similar situation is set out in the court decision of the Moscow District Court of the city of Cheboksary dated May 26, 2009. The plaintiff in the case was a relative (heir of the deceased), who filed a claim for recognition of the gift agreement between the donee and the testator as not concluded. Due to the fact that the ownership rights to the land plot and the house located on it were registered after the death of the donor, the court considered that the donee took measures indicating his acceptance of the gift and implemented the will of the deceased as expressed in the contract. The recipient submitted an application for state registration. registration of property before the death of the donor. Therefore, the donor’s claim to recognize the gift agreement as not concluded was denied. The basis for the decision was the provisions of Art. 574 of the Civil Code of Russia, providing for the written form of the transaction and its state. registration, as well as Art. 9,13,16 Federal Law of July 21, 1997 No. 122-FZ On state registration of rights, as well as Part 2 of Art. 17 Civil Code of the Russian Federation and Art. 1112 Civil Code of Russia.

In this case it can be said that it is an exception to general rule making court decisions, since, analyzing judicial practice, we can say that the courts consider the absence of registration on the day of death of the donor to be the basis for the possibility of changing the legal regime of the property that was transferred under the gift agreement. As a rule, courts make decisions on the basis of which a transaction under a gift agreement without the corresponding state. registration is considered not concluded, and the property in this case becomes inherited.

Termination of the gift agreement

As for the right to demand in court the termination of a gift agreement, it can only be exercised by a party to the agreement or its representative, in contrast to the invalidation of a gift agreement, which can be declared by any interested party. One of the grounds for terminating a gift agreement, based on an analysis of judicial practice, may be the recipient’s refusal to accept the gift.

One such interesting example of judicial practice is the ruling of the Court of Appeal of the Bryansk Regional Court in case No. 33-2021/2015. In the course of judicial proceedings, it was established that the plaintiff applied to the court with a demand from the defendants to accept the refusal of the gift and terminate the gift agreement. The court rejected the plaintiff's request to terminate the gift agreement. The basis for the refusal was that the plaintiff actually accepted the gift (a house with a plot of land), and the actions of the parties were aimed at creating legal relations defined by the agreement and gave rise to all the legal consequences of the agreement. After accepting the house as a gift, the plaintiff attempted to draw up documents for the delivery of real estate to the state for appropriate compensation under the Chernobyl program, and only after the refusal of the right to receive such compensation did the recipient file a lawsuit. Since the defendants in the lawsuit did not object to the termination of the contract and the acceptance of the refusal of the gift, the court did not see in these legal relations the existence of a dispute that must be resolved in court. For these reasons, the court issued a corresponding ruling.

Invalidation of a gift agreement

To invalidate a gift agreement, apply general provisions The Civil Code of Russia, which regulate the procedure and grounds for invalidating transactions. Such reasons may be:

• non-compliance with the requirements of civil law regarding the form of the transaction;
• concluding a gift agreement for a purpose that will in advance contradict the foundations of law and order and morality;
• conclusion of a contract by an incapacitated person under the influence or misconception about the nature of the transaction;
• under the influence of violence, deception and threats;

An example of a court decision related to challenging a donation agreement for part of an apartment and demanding that the transaction be declared invalid is the decision in case No. 2-1600/2015 – M-1167/2015. The plaintiff (donor) filed a claim against the recipients to invalidate the donation agreement for a share of the apartment, since the provisions of the agreement do not provide for the right of residence in the donor’s residential premises. The court found that the plaintiff did not provide any facts of non-compliance of the transaction with the requirements of the law, which presuppose legal grounds to recognize the transaction as invalid. The agreement for the donation of a share of the apartment corresponded to the will of the parties, which was aimed at transferring ownership of the apartment from the donor (plaintiff) to the defendants (donees). The absence of conditions in the gift agreement, which require the donor to retain the right to use part of the apartment, is not a basis for challenging the gift agreement and declaring it invalid. Based on the facts and circumstances established by the court, the plaintiff’s claims were denied.

Cases of challenging donation purchase and sale agreements, challenging inheritance under a will, etc. are a rather complex category of court cases, in which, in order to achieve a positive result, the participation of legal specialists (lawyers, jurists) is necessary. When carrying out the transaction itself, in order to understand the essence of the legal relationship that has arisen and the possible legal consequences of the transaction, it is also necessary to obtain professional advice.

Invalid transactions In case of violation of the interests or rights of one of the parties to the deed of real estate, it should be declared invalid. With rare exceptions, this procedure occurs through a court decision. Invalid transactions are made in the interests of one of the parties and without taking into account the interests of other participants, who may not even be aware of the infringement of their rights at the time of the procedure. The grounds for invalidating an agreement may vary, but are always related to non-compliance with the provisions of the law. Invalid transactions are:

• insignificant. They are recognized as such regardless of the presence or absence of a court decision. These include an imaginary (feigned) transaction or one made in violation of the law (Article 168, Article 170 of the Civil Code of the Russian Federation);

• voidable. They are recognized as such only by the presence of a court decision.

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Currently, the defendant does not give her the opportunity to live peacefully in the said apartment. She asked that the agreement be considered void under Art. 178 of the Civil Code of the Russian Federation, as a prisoner under the influence of delusion. Later she changed the grounds of claim to Art. 177 of the Civil Code of the Russian Federation, indicating that when signing the documents, she did not understand the significance of her own actions due to chronic diseases and being under the impression of the death of a loved one.

Attention

During the court hearing, the defendant did not recognize the claims. He indicated that the deed of gift was made at the will of the plaintiff, the notary explained the essence of the transaction, the plaintiff was aware of the nature and consequences of the actions. The district court's decision did not satisfy the claims.

Plaintiff in appeal asks to change the court decision on the basis of its inconsistency with the circumstances of the case and violation of procedural law.

Cancellation of donation of real estate

These include a change in the property status of the donor, who by transferring the gift will significantly reduce his standard of living. The issue of termination of an apartment donation agreement is resolved exclusively in court. An analysis of judicial practice in cases of cancellation of donations shows that most often their initiator is the donor himself.
To do this, he files a claim and then presents the court with evidence of his point of view. Recognizing the donee as unworthy Most often in the practice of considering court cases on the termination of a gift agreement, there are cases when a relative who is about to receive an apartment as a gift, either to speed up this event or to eliminate competitors, decides to take illegal actions. Moreover, he commits them deliberately, that is, fully aware of the severity of the consequences.

Judicial practice on gift agreements

But if such a condition was absent, then after the death of the donee the thing goes to his heirs. As for the terms of the agreement on the transfer of a thing after the death of the donor, it is always void. Grounds for cancellation of a deed of gift The agreement, like any transaction, can be declared invalid in accordance with paragraph 2 of Chapter 9 of the Civil Code of the Russian Federation.

Important

If the item has been preserved after the donation was cancelled, it must be returned to the previous owner in kind. Ordinary gifts up to three thousand rubles are not returned. Cancellation of the transaction is permitted if the recipient of the gift made an attempt on the life of the previous owner (or his loved one) or caused him bodily harm.

Also, the previous owner can request the item back if it is of non-property value to him, and the recipient of the gift treats it so carelessly that there is a risk of its destruction.

Cancellation of a gift agreement: judicial practice

• the death of the recipient occurred earlier than the death of the donor, before the registration of ownership by the new owner of the apartment;
• the recipient refused the apartment;
• the contract states that the gift passes to the new owner after the death of the previous owner (this is, in fact, a will);
• There are legal “flaws” in the text or form of the transaction, etc.

Cancellation can be carried out by a lawyer or in court, depending on the reasons for termination. If the text of the agreement itself indicates the reasons why it is cancelled, then the donor contacts a law office to cancel the deed of gift.

Judicial practice of challenging a deed of gift for an apartment

For example, committed under the influence of difficult life circumstances (“enslaving” transaction). For recognition, grounds (evidence) are required. Limitation periods for annulment of an agreement The current legislation does not allocate limitation periods depending on the type or object of the agreement. The general statute of limitations is 3 years from the day the interested party became aware of a violation of his or her rights.

For some types of requirements, other deadlines may be applied, shorter or extended compared to the general condition:

• the invalidity of a void transaction may be considered if a claim is filed within a 10-year period from the beginning of execution;
• the invalidity of a voidable transaction can be considered if a claim is filed within 12 months after the termination of the circumstances that led to the agreement (Art.

An error occurred.

According to this condition, if the donor survives the donee, he has the right to demand that the heirs return the gift. Of course, if the donee has not transferred his right to someone else during his lifetime, for example, through concluding an agreement for the sale and purchase of an apartment. Another case when cancellation of a donation is possible is a declaration of insolvency (bankruptcy) legal entity or individual entrepreneur. In the case where the gift was made not from personal funds, but from property used for commercial purposes. If this happened within six months before declaring bankruptcy, then interested parties can initiate termination of the apartment donation agreement. Refusal to fulfill a contract is somewhat different from cancellation of a gift.
If it provided for the transfer of an apartment in the future (but during the life of the donor), then under certain conditions it may not be fulfilled.

Cancellation of a gift agreement

To cancel the agreement, the nature and severity of the physical harm caused to the donor and/or its members does not matter. The fact that took place is important. To cancel, all that is required is proof of intentionality of the harm caused. To family members, relatives (close) in accordance with Art. 14 of the RF IC include:

• spouses and children;
• grandchildren, parents, grandparents;
• siblings and half-siblings (related only by mother or father).

When canceling a gift, it is significant that any unlawful behavior of the donee in relation to the donor has the nature of a criminal offense under the Criminal Code of the Russian Federation, that is, a crime is implied. Cancellation of the contract is possible only if there is a court verdict and accusation that has entered into force.

Cancellation of deed of gift

In addition, video recordings of the camera that the plaintiff secretly installed in her apartment after numerous threats from her son were presented. Based on what was presented, the court, based on Article 1 578 of the Civil Code of the Russian Federation, canceled the deed of gift and ordered the defendant to return the apartment to his mother. Refusal of donation and cancellation of donation In addition to cancellation of the donation, the donor has the right to refuse to fulfill the contract.

The difference is that refusal to transfer a gift is appropriate when the contract provides for the transfer to occur in the future. For a donation that has already been completed and concluded, cancellation is appropriate. The grounds for refusal to make a donation are:

• a situation where, after drawing up a gift agreement, the financial condition of the donor or his family unexpectedly and significantly worsened.

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In this and similar cases, non-property value should be understood as a personal relationship to an object associated with some memories, family relationships. This is usually an item that is traditionally passed down from generation to generation in a family. Conclusion A donation as an invalid transaction may be voidable and void. The consequences of a void transaction apply if:

• the donation was made by an incapacitated person;
• the prohibition established by one of Article 32 of Chapter 3 of the Civil Code of the Russian Federation was violated;
• the transaction is imaginary or feigned;
• the transaction is contrary to the principles of law or morality.

The donation is invalidated by challenge if:

1. committed under pressure or coercion;
2. under deception;
3. under the influence of a significant misconception.

There may be several reasons for invalidity and insignificance at the same time.

Cancellation of a gift agreement judicial practice

Sometimes, in the case of housing disputes, relatives of elderly people try to get the deed of gift for an apartment or house canceled, proving that the donor acted without fully understanding what he was doing. The court's decision in this case depends on evidence, primarily a psychiatric examination. When alienating a share of a house or land for a fee, the owner must ask the consent of other owners or invite them to buy the share themselves.

Under a gift agreement, you can transfer a share in the property without the consent of the other owners. If the donation was feigned, and in fact the donor received money or real estate for exchange for his share, other owners who were not allowed to exercise the pre-emptive right of redemption may file statement of claim on the transfer of the buyer’s rights and obligations to himself (you can view and download here: [sample statement of claim]).

Termination of a gift agreement judicial practice of the Republic of Belarus

The panel of judges found no grounds for overturning the court's decision, since the plaintiff did not provide evidence that during the alienation of the apartment, his expression of will was distorted by the influence of delusion or inability to understand his own actions. Donors of real estate often find themselves in a difficult situation due to misunderstanding and not fully understanding the consequences of their actions. Offended and deceived (as it seems to them) by relatives, donors go to court with the desire, after some time, to return everything back and cancel the deed of gift. But in fact, not based on the emotions or words of the donor, it is extremely difficult to confirm that you are right.
To do this, the donor must prove that he was not aware of the consequences of the agreement or transferred the property under the influence of threats or deception.

One of the problematic issues arising in practical economic activity legal entities, is the issue of selling a share in the authorized capital of a business company (Limited Liability Company). An agreement for the donation of a share in the authorized capital of an LLC may be declared void as an imaginary transaction if it has not been executed and the company participant who ceded the share under such an agreement continues to exercise the rights of the participant.

In practice, situations arise when a company participant enters into a donation agreement for a share in the authorized capital of an LLC, without having the goal of transferring this share at the time of its conclusion, and in fact continues to exercise the rights of the participant. In such cases, the question arises about the possibility of qualifying such a gift agreement as an imaginary transaction and, as a result, recognizing it as void on the basis of clause 1 of Art. 170 Civil Code of the Russian Federation.

The following example from judicial practice can serve as an illustration of this statement. Resolution of the Federal Antimonopoly Service of the North-Western District dated January 22, 2013 in case No. A44-619/2012 // SPS Consultant Plus.

“...The agreement dated November 15, 2007 formalized the donation of P.L. shares of 39.66% authorized capital Companies with a nominal value of 4,000,000 rubles.

Challenging the gift agreement concluded between P. and L. as an invalid transaction, V. referred to the violation of the procedure for assigning a share established by the charter of the Company, as well as the fact that P. did not donate the share on November 15, 2007, since he remained a member of the Company until December 29, 2007, when the Company accepted and registered P.’s application to leave the Society.

From the case materials it follows that after the conclusion of the disputed agreement on November 15, 2007, P. actually continued to remain a participant in the Company, and on December 29, 2007, he resigned from the membership. Under the agreement dated 02/09/2008, concluded between P. and the Company, P., in connection with his exit from the Company, was transferred property in the amount of 17,563,431 rubles, corresponding to his share in the authorized capital of the Company in the amount of 39.66%.

Having concluded the gift agreement, P. and L. did not fulfill it and did not intend to perform it, and the transfer of the share to L. was not actually provided for by the parties when concluding the agreement.

Under such circumstances the conclusion court of appeal recognized as legal, the disputed agreement meets all the characteristics of a transaction made only for show, without the intention of creating legal consequences corresponding to it, that is, imaginary, which, by virtue of paragraph 1 of Article 170 of the Civil Code of the Russian Federation, is void.

Analysis of Art. 578 of the Civil Code of the Russian Federation allows us to talk about another important problem of law enforcement practice: clause 1 of this article establishes the donor’s right to cancel the gift if the donee has made an attempt on his life, the life of one of his family members or close relatives, or has intentionally caused bodily harm to the donor. In case of intentional deprivation of life of the donor by the donee, the right to demand cancellation of the gift belongs to the heirs of the donor.

Clause 1 of Art. 578 of the Civil Code of the Russian Federation contains an exhaustive list of options for unworthy behavior of a gifted person, which make it possible to raise the question of canceling the gift. These include: taking the life of the donor, causing him any bodily harm (regardless of their severity) and an attempt on the life of the donor or his relatives.

Thus, the verdict of the magistrate, which has entered into legal force, by which the donee is found guilty of committing a crime (infliction of bodily harm) against a close relative of the donor (wife), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for the cancellation of the donation agreement for residential premises. Definition of St. -Petersburg City Court dated August 17, 2010 N 33-11269. The verdict of the magistrate, which has entered into legal force, by which the recipient is found guilty of committing a crime (causing bodily harm) against a close relative of the donor (wife), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for the cancellation of the donation agreement for residential premises, which is common property. spouses, at the claim of the victim as a participant in joint property, and therefore as a participant in the gift agreement // Website of the St. Petersburg City Court: http://sankt-peterburgsky.spb.sudrf.ru.

“During the marriage of K.I. The share in housing cooperative no. 1241 for a two-room apartment was paid in full. 04/23/2003 with the consent of K.T.’s wife. the apartment, which is the common property of the spouses, was transferred to K.I. as a gift to the son of K.A. The ownership of the said apartment is registered for K.A. GUYU “State Bureau of Registration of Rights to Real Estate” 05.13.2003.09.28.2006 K.I. died.

When filing a lawsuit, K.T. referred to Art. 578 of the Civil Code of the Russian Federation and, as a basis for canceling the donation, indicated that in relation to K.A. there is a verdict of the magistrate of court district No. 60 of St. Petersburg dated February 13, 2009, which has entered into legal force, by which K.A. found guilty of committing a crime against K.T. crime under Part 1 of Art. 119 of the Criminal Code of the Russian Federation. The court proceeded from the fact that the fact of causing bodily harm to K.A. K.T. established by a verdict of the magistrate of court district No. 60 of St. Petersburg that has entered into legal force. In such circumstances, and taking into account the provisions of Art. 572 of the Civil Code of the Russian Federation, the court of first instance reasonably satisfied the claims of K.T. in connection with which, the donation agreement dated April 23, 2003 was terminated.”

An attempt can manifest itself either in the form of causing physical harm (in judicial practice in criminal cases, grave and moderate harm to health is considered dangerous to life - Articles 30 and 105, 111, 112, 115, 116 of the Criminal Code of the Russian Federation of June 13, 1996 N 63- Federal Law), or in organizing an encroachment. Actions that allow the donor to cancel the donation must be committed by the donee intentionally.

Thus, these actions do not include careless actions, as well as the actions of persons deprived of civil capacity at the time of their commission - minors under the age of 14 and persons recognized as incompetent.

The Civil Code of the Russian Federation does not establish criminal judicial prejudice as a condition for the cancellation of a gift, however, the fact that the donee has committed an attempt on the life of the donor or one of his relatives must be confirmed either by a court verdict in a criminal case that has entered into legal force, or court decision issued in civil proceedings.

We believe that in the event of cancellation of the gift agreement and the impossibility of returning the object of the gift in kind, the gifted person may have another obligation provided for by law in Article 7 of the Civil Code of the Russian Federation, namely a statutory obligation associated with unjust enrichment. In this case, in accordance with Article 1105 of the Civil Code of the Russian Federation, the plaintiff (donor) has the right to demand compensation from the defendant (donee) for the actual value of the property (gift) at the time of its receipt. However, it should be noted that, despite the existing legal grounds for filing a claim for the return of value in exchange for an unreturned gift, litigation related to the resolution of such disputes should be classified as complex. This is due to the fact that the fact of unjust enrichment requires proof, and the value of the gift included in the amount of the claim cannot always be justified by the market value of a similar item of gift.

Also in practice, situations often arise when a shareholder of a closed joint-stock company (CJSC) enters into a share donation agreement without complying with the requirements of the Law on joint stock companies on the pre-emptive right to purchase shares. If a shareholder, whose pre-emptive right has been violated, challenges such a transaction and demands that the rights and obligations under it be transferred to himself, he must prove that such a gift agreement is fraudulent.

Thus, a plaintiff challenging a share donation agreement in order to recognize it as a sham transaction covering up a purchase and sale agreement must prove that such a transaction was of a compensated nature. 14.8. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application Federal Law“On joint stock companies” // Bulletin of the Supreme Arbitration Court of the Russian Federation, No. 1, 2004..

The courts proceed from the fact that, by virtue of paragraph 2 of Art. 170 of the Civil Code of the Russian Federation, a sham transaction, that is, a transaction that was made with the aim of covering up another transaction, is void. An interested party who has a pre-emptive right to purchase shares may demand that the rights and obligations of the buyer of shares in a transaction concluded with a third party be transferred to him if he proves that the agreement for the gratuitous alienation of shares (donation) concluded by a company participant with a third party is a sham transaction and in fact the shares were alienated on a compensation basis.

By virtue of paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, a gift agreement is a gratuitous transaction. Thus, the subject of proof in such disputes includes clarifying the question of whether the shares were transferred free of charge or whether there was a counter-provision on the part of the buyer. The presence of a counter transfer of a thing or right, as well as the completion by the parties of a transaction aimed at covering up another transaction, in accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation must be proven by the plaintiff.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint Stock Companies”

“...If an interested party who has a pre-emptive right to acquire shares presents evidence indicating that the agreement for the gratuitous alienation of shares (donation), concluded by a company participant with a third party, is a sham transaction and in fact the shares were alienated on a compensated basis , such an agreement by virtue of paragraph 2 of Article 170 of the Civil Code Russian Federation is void, and the rules governing the relevant contract apply to the transaction, taking into account its essence. A person whose pre-emptive right to purchase shares has been violated may in this case demand the transfer of the rights and obligations of the buyer of shares under a transaction made with a third party to him...”

Judicial and arbitration practice knows many disputes related to the donation of shares of a closed joint stock company by a shareholder to third parties. The court, deciding a case when the formalities of donating shares of a closed joint-stock company have been complied with (the agreement and other documents are outwardly drawn up decently), and the interested party (plaintiff) has not provided direct evidence of the consideration of the transaction (receipt, acceptance certificate cash etc.), agrees with the donation and refuses to satisfy the plaintiff’s demands to recognize the transaction as invalid.

Currently, judicial and arbitration practice is focused only on obvious evidence (compensation of the transaction), clearly confirming the nullity of the transaction. Decision of the Arbitration Court of the Sverdlovsk Region dated February 18, 2008 in case No. A60-2252/2007-C2. The court rejected the claim to invalidate (feigned) the donation agreement for company shares, since the case materials confirmed that the agreement was gratuitous // Reference and legal system Consultant Plus.

However, careful consideration of such a transaction makes it possible to identify many flaws and ambiguities, as well as to form a system of indirect evidence (absence of proposals from the donee to other shareholders for the sale of shares in the company; execution of a donation agreement by a notary who does not service the area where the donor lives; non-reclamation by the notary from the donor documents confirming the powers of the donor; lack of reasonable grounds for the gift, since before the transaction the donor and the donee did not know each other; the donor has relatives to whom the shares should have been transferred due to the death of the donor; execution of powers of attorney for representatives whom the donor did not previously know or see; , but which were noticed in raider operations; deliberate and systematic evasion on the part of the donor from appearing at the meeting; court hearings etc.). An unbiased consideration of the totality of circumstantial evidence cannot but lead to the obvious conclusion that the donation transaction was a sham. Otherwise, a person acting law-abidingly, i.e. another shareholder of the company falls into a state of hopelessness and defenselessness.

The foregoing shows that the mentioned provisions of Art. 7 of the Law on JSC Federal Law dated December 26, 1995 N 208-FZ “On Joint Stock Companies” (as amended on April 5, 2013) together with explanations of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 N 19 “On some issues of application of the Federal Law “On Joint-Stock Companies” // “Bulletin of the Supreme Arbitration Court of the Russian Federation”, No. 1, 2004. and the corresponding judicial and arbitration practice create ample opportunities for the implementation of the so-called “hostile takeover” of a closed joint-stock company.

In highlighting the problematic issues of donation abolition, it should be emphasized that specific feature The gift agreement, which distinguishes it from all other civil contracts, is the opportunity given to the donor and his heirs to cancel the donation. This feature is inherent both in contracts concluded by transferring a gift to the donee, and in contracts of promise of donation executed by the donor. However, cancellation does not apply to the grounds for termination of the gift agreement. We are talking about situations when the gift has already been transferred to the donee and, as a result, the latter has acquired the right of ownership of the donated property or he has become the owner of the corresponding right, i.e. the gift agreement, accompanied by the transfer of property, has already taken place as a legal fact, and the consensual gift agreement (agreement of promise of donation) has terminated due to its proper execution. Therefore, one cannot but agree with the opinion of I.V. Eliseev, who believes that the donor, by canceling the donation, “actually annuls the contract as a fact that entails legal consequences.” Sergeev A.P., Tolstoy Yu.K. "Civil Law": Textbook. M.: Prospekt, 2012.

Taking into account the exclusivity of this institution, the Civil Code of the Russian Federation in Art. 578 provided for the grounds for canceling the donation in the form of a closed list.

Cancellation of a donation is possible in the following four cases:

1. if the donee made an attempt on his life, the life of one of his family members or close relatives, or intentionally caused bodily harm to the donor;

2. if the donee’s handling of the donated item, which represents great non-property value for the donor, creates a threat of its irretrievable loss;

3. the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within 6 months preceding the declaration of such a person as insolvent (bankrupt);

4. The gift agreement may stipulate the donor’s right to cancel the gift if he survives the donee.

An analysis of law enforcement practice shows that very often counterparties to a residential property donation agreement pursue goals that do not arise from its nature.

Thus, one of the most common cases encountered in the practice of concluding a donation agreement for residential premises is challenging the concluded transaction on the grounds provided for in Article 178 of the Civil Code of the Russian Federation, that is, due to the conclusion of a donation agreement for residential premises under the influence of misconceptions regarding the nature of the transaction. Karpukhin D. “Agreement donation of residential premises: analysis of law enforcement aspects of the problem" // Housing Law. 2012. N 10.- 13 p.

The donor, concluding a contract for the donation of residential premises, mistakenly believes that the recipient is obliged to perform certain property and personal actions in favor of the donor for the residential premises transferred to him free of charge. Otherwise, in the opinion of the donor, the gift agreement may be declared invalid.

This case was considered in the appeal Ruling of the St. Petersburg City Court dated April 4, 2012 N 33-4656Appeal Ruling of the St. Petersburg City Court dated April 4, 2012 N 33-4656 // Legal system Consultant plus.. By the decision of the appellate instance to the plaintiff the request to overturn the decision of the court of first instance was rejected.

The plaintiff (donor) challenged the validity of the transaction he concluded - the agreement for the donation of residential premises - on the grounds of Article 178 of the Civil Code of the Russian Federation. From the circumstances of the case, it followed that the conclusion of the agreement for the donation of residential premises was preceded by an oral agreement between the plaintiff and the defendant that the defendant would marry the plaintiff, undertake to pay utility bills for the apartment, make complete repairs in it, and would also help him financially on a monthly basis.

Subsequently, the defendant avoided fulfilling the promises given to him, and therefore the plaintiff went to court.

The cassation court noted that in accordance with paragraph 1 of Art. 178 of the Civil Code of the Russian Federation, a transaction made under the influence of a misconception of significant significance may be declared invalid by the court at the claim of the party acting under the influence of the misconception. Of significant importance is the misconception regarding the nature of the transaction or identity or such qualities of its subject matter that significantly reduce the possibility of its use for its intended purpose. The misconception regarding the motives for the transaction is not significant.

From these arguments of the plaintiff it follows that he did not assume that the defendant would be able to perform actions involving the exercise of her property rights, whereas, by transferring the apartment under the disputed gift agreement into ownership of the defendant, the plaintiff could not but know that he was transferring ownership rights to her.

The cassation instance indicated that the consistent nature of the plaintiff’s actions, expressed in the fact that he personally entered into a donation agreement for residential premises with the defendant, took part in registration actions, issued a power of attorney for the defendant to formalize inheritance rights to the disputed apartment, as well as a power of attorney for a third party for the right to conclude a donation agreement for an apartment belonging to him, which were certified in the prescribed manner by a notary, indicates that the plaintiff purposefully took actions with the aim of transferring ownership of the disputed apartment to the defendant under the donation agreement.

The court also indicated that the plaintiff’s arguments that the defendant had not fulfilled the agreement reached between the parties that the defendant would look after him, provide financial assistance and pay utility bills, and make repairs in the apartment, were rightfully recognized by the court of first instance as untenable, since the data the circumstances have no legal significance for the consideration of this dispute and do not relate to the nature of the transaction and its legal consequences. Motives for concluding an agreement by virtue of Art. 178 of the Civil Code of the Russian Federation are not significant.

The given example from the judicial practice of a residential donation agreement shows that the property and personal obligations given by the donee in favor of the donor in pursuance of the specified transaction have no legal force, since the concluded transaction did not impose on the donee any obligations declared by the plaintiff and, especially It is important that such obligations do not arise from the nature of the disputed transaction, which does not give rise to such obligations of the donee to the donor.

Thus, from the circumstances of the case it is clear that the gift agreement in in this case acted as a sham deal concluded to cover up a lifelong dependency agreement. In accordance with Part 2 of Article 170 of the Civil Code of the Russian Federation, a sham transaction, that is, a transaction that was made with the aim of covering up another, is void. To the transaction which the parties actually intended, taking into account its substance, the rules relating to it apply.

Consequently, the plaintiff had to challenge the nullity of the agreement for the donation of residential premises due to the recognition of the specified transaction as sham, that is, on the grounds of Part 2 of Article 170 of the Civil Code of the Russian Federation.

Another problem that arose in the process of analyzing law enforcement practice and related to the conclusion of a gift agreement, in particular residential premises, is the requirement to recognize the gift agreement as an imaginary transaction and to apply the consequences of the invalidity of a void transaction. According to Part 1 of Article 170 of the Civil Code of the Russian Federation, a transaction is considered sham if it is concluded only for show, without the intention of creating legal consequences corresponding to it. Imaginary transactions are recognized as void. As a rule, residential premises are transferred free of charge to the donee in order to avoid foreclosure on the donor’s property for his obligations to creditors.

This case was considered in the cassation Ruling of the St. Petersburg City Court dated No. 33-1707/2012 dated February 7, 2012. Cassation Ruling of the St. Petersburg City Court dated No. 33-1707/2012 dated February 7, 2012 // SPS Consultant Plus.

From the circumstances of the case, it followed that the defendant, on the basis of an agreement on shared participation in investing in the construction of a residential building, an additional agreement on the recalculation of the share contribution, and an apartment acceptance certificate, had been the owner of a one-room apartment since 2007. Under the gift agreement concluded in October 2008, the defendant gave the said apartment as a gift to his sister, for whom ownership of the apartment was registered.

In June 2010, the plaintiffs went to court with demands to recognize the specified donation agreement as an imaginary transaction, citing the fact that it was concluded without the intention of creating legal consequences, in order to evade the defendant from foreclosure on the property belonging to him for his debt obligations to the plaintiffs .

The cassation court did not satisfy the plaintiffs' demands and noted that the court of first instance, on the basis of the evidence presented, correctly concluded that the circumstances indicated by the plaintiffs as grounds for recognizing the gift agreement as an imaginary transaction were not proven, and in this regard, correctly refused to satisfy the stated requirements.

The cassation instance noted that from the case materials it follows that the disputed transaction (in terms of its consequences such as the transfer of ownership of the apartment) was executed in October 2010, when G.S.’s ownership of the disputed apartment was registered, i.e. e. the legal consequences corresponding to the gift agreement have actually occurred. An imaginary transaction in accordance with paragraph 1 of Article 170 of the Civil Code of the Russian Federation creates only the appearance of legal consequences.

The exercise of the powers of the owner by the defendant's sister in relation to the disputed apartment is confirmed by the fact that she paid the tax for this property for 2009 - 2010, the lease agreement she concluded with a third party and the energy supply agreement, the work order for sealing the meter, and the registration of a personal account in the name of the donee.

It is important that the court indicated that the above arguments of the plaintiffs could be significant only if the law provided independent grounds for the invalidity of transactions made by a citizen if he had signs of inability to answer for his obligations to creditors. Provisions on the possibility of challenging debtor transactions that harm the property rights of creditors are provided for in Chapter 3.1. Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 N 127-FZ.

However, within the meaning of the provisions of Art. 61.8 and 61.9 of this Law, challenging the debtor’s transactions is carried out within the framework of the debtor’s bankruptcy case, and the corresponding application can be filed in arbitration court an external or bankruptcy trustee on behalf of the debtor on his own initiative or by decision of a meeting of creditors.

At the same time, the provisions of Chapter 10 of the same Law on bankruptcy of a citizen who is not an individual entrepreneur are currently not in effect, since paragraph 2 of Article 231 of the Law provides for their entry into force from the date of entry into force of the Federal Law on introducing relevant amendments and additions to the federal laws.

The cassation instance noted that at present, in relation to citizens who are not individual entrepreneurs, the law does not provide for grounds for the invalidity of transactions related to causing damage to the property interests of creditors, and the procedure for challenging such transactions, and, consequently, challenging them is possible only on the basis of general norms of the Civil Code of the Russian Federation. The basis for the invalidity of the transaction, which the plaintiffs relied on, is absent in this case.

The court noted that at the time of the conclusion of the gift agreement dated October 16, 2008, there were no court orders to collect from the defendant in favor of the plaintiffs the debt under the loan agreements, in pursuance of which the property belonging to the defendant could be seized.

The cassation court upheld the decision of the court of first instance to recognize the agreement for the donation of residential premises as an imaginary transaction.

Thus, judicial practice on challenging a gift agreement can be divided into two groups: termination of a gift agreement and invalidation of a gift agreement. The general rules for declaring transactions invalid (Articles 168 - 179 of the Civil Code of the Russian Federation) are also applicable to a gift agreement.

Lawsuits to terminate a gift agreement or invalidate it are quite common. Often, the basis for recognizing an apartment donation agreement as invalid is both a transaction made under the influence of delusion, deception, threat, and a transaction under Article 177 of the Civil Code of the Russian Federation, made by a person, although legally competent, who was at the time of drawing up the will in such a state where he could not understand the meaning of your actions or guide them.

Another risk is associated with the concept of a sham transaction, when a real estate donation agreement covers up a purchase and sale agreement. This option for purchasing real estate is common. This option is illegal, donation is a gratuitous transaction, and if there is a counter-transfer of a thing or right or a counter-obligation, the contract is not recognized as a donation. When proving the sham of a transaction, judicial practice on issues of donation has an unambiguous position: the gift agreement is recognized as invalid and the consequences of the invalidity of the transaction are applied. Such disputes are resolved by the court in a general manner upon the application of any interested person.

Donation is one of the ways to control the fate of an apartment. With cancellation income tax When donating between close relatives, this method of transferring property has become widespread. But, as judicial practice shows, with the increase in the number of such transactions, there have also been noticeably more requests to cancel the apartment donation agreement.

Gift or bequeath?

When transferring an apartment to relatives, as a rule, the choice is between two transactions: donation and will. Although both of them involve the transfer of ownership of real estate, the choice of one of them depends on various circumstances, primarily the preferences of the parties to the relationship.

From the point of view of the one who intends to transfer the property, a will is the best option. And here's why:

• firstly, the transfer of rights to the apartment to the new owners will pass only after death, and even then not immediately (the fact of acceptance of the inheritance and its actual receipt are separated by six months);
• secondly, there is always the opportunity to change or cancel your decision simply at will, and termination of a gift agreement is possible only on the basis of law;
• thirdly, by not disclosing the contents of the will, conflicts with potential heirs can be avoided.

But from the perspective of those who ultimately receive the apartment, these advantages are, on the contrary, disadvantages. A gift agreement is more beneficial for them, since it eliminates uncertainty in the fate of real estate, even if the transfer of rights is only promised in the future (Part 2 of Article 572 of the Civil Code of the Russian Federation). Yes, and canceling a gift, unlike a will, is much more difficult. As evidenced by the accumulated judicial practice in inheritance cases.

Advice: before choosing how to manage your real estate, it is worth getting specialist advice about all possible consequences such a step.

Grounds for cancellation of donation

A donation, even made to a close relative, can be canceled at the initiative of the donor or his heirs. The grounds for this are listed in Article 578 of the Civil Code of the Russian Federation. Termination of an apartment donation agreement is possible if:

• the donee made a deliberate attempt on the life of the donor himself or his relatives (in the event that the attempt was successful and the donor is no longer alive, this right is exercised by his heirs);
• the recipient treats the gift in such a way that it threatens the loss of an item that is of great intangible value to the donor.

A non-donation clause may be included in the contract itself. According to this condition, if the donor survives the donee, he has the right to demand that the heirs return the gift. Of course, if the donee has not transferred his right to someone else during his lifetime, for example, through the conclusion of an apartment purchase and sale agreement.

Another case when cancellation of a donation is possible is the declaration of insolvency (bankruptcy) of a legal entity or individual entrepreneur. In the case where the gift was made not from personal funds, but from property used for commercial purposes. If this happened within six months before declaring bankruptcy, then interested parties can initiate termination of the apartment donation agreement.

Refusal to fulfill a contract is somewhat different from cancellation of a gift. If it provided for the transfer of an apartment in the future (but during the life of the donor), then under certain conditions it may not be fulfilled. These include a change in the property status of the donor, who by transferring the gift will significantly reduce his standard of living.

The issue of termination of an apartment donation agreement is resolved exclusively in court. An analysis of judicial practice in cases of cancellation of donations shows that most often their initiator is the donor himself. To do this, he files a claim and then presents the court with evidence of his point of view.

Recognition of the donee as unworthy

Most often, in the practice of considering court cases on the termination of a gift agreement, there are cases when a relative who is about to receive an apartment as a gift, either to speed up this event or to eliminate competitors, decides to take illegal actions. Moreover, he commits them deliberately, that is, fully aware of the severity of the consequences.

These may include actions committed in relation to both the donor himself and his relatives:

• deprivation of life;
• causing bodily harm;
• attempt on life and health.

The fact of such actions, as well as the presence of intent (direct or indirect) in them, must be subject to either a verdict or a court decision in a civil case that has entered into legal force. Before this, cancellation of the donation on this basis is impossible. Termination of a contract does not relieve one from the obligation to compensate the donor or his heirs for material and moral damage.

Advice: In order not to act first as a victim in a criminal case, and then as a plaintiff in a civil case, before making a gift, you should make sure that the donee will not take illegal actions against the donor.

The second case, when, in the opinion of the donor, the relative who received the apartment treats it improperly, requires presentation large quantity evidence from both sides. Because we're talking about about intangible value, then each party will have its own assessment of the actions performed.

The burden of proof in this situation lies with the donor. And the court will have to clarify at least two points:

• that the gift really has a certain value for the one who gave it, and the recipient knows about it and this imposes on him the obligation of careful treatment;
• that the actions of the person receiving the gift lead to the destruction of the apartment or its use for other purposes.

Invalidation of donation

Since the gift agreement is a transaction, the provisions of the Civil Code on recognizing the transaction as invalid and the consequences of such recognition are applicable to it (Articles 166-181). The nullity of the transaction or its recognition as invalid in court entails the return of all property transferred under it to the previous owners.

Judicial practice in the field of challenging a gift agreement is characterized by the legal complexity of this category of cases. A deed of gift for an apartment can only be challenged by reasons, provided for by the current legislation of the Russian Federation and certain ways:

In practice, there are often cases of litigation on claims for recognition of a gift, as well as on complaints wishing to challenge the agreement.

Court decisions depend on the specific circumstances of the case, as well as on the available facts that indicate the bad faith of the accused person. A citizen who filed a lawsuit must understand that burden of proof lies with the applicant himself.

When concluding a gift agreement, one should take into account the possible and negative consequences associated with the process of challenging the relevant agreement. Participants in the deed of gift should study the requirements for this species agreement, and when drawing up a document, be based on the principles legality, take into account the interests of each party to the transaction.

Grounds for challenging a gift agreement

The process of challenging a gift agreement is complex legal phenomenon. In accordance with current legislation, it is possible to challenge a deed of gift in the following ways: ways:

• By termination, that is, cancellation of the agreement.
• Based on the recognition of the gift agreement as invalid.
• Due to the nullity of the transaction for the gratuitous transfer of a gift.

The following may require challenging a gift agreement:

• donor;
• donee;
• heirs of the donor after his death;
• creditors, mortgagees.

You can challenge legal relations in the field of donation only in court, and only if there are grounds provided for by law.

Citizen D. donated an apartment to his to a close friend Citizen N. After six months, a quarrel occurred between the donor and the recipient, after which Citizen D. filed a lawsuit demanding to challenge the gratuitous transfer and declare the deed of gift invalid. The judicial authority found that legal grounds recognize the transaction as invalid, the plaintiff did not provide the apartment donation agreement at the time of conclusion corresponded to the will of the parties, and meets legal requirements. Based on those established in trial facts Citizen D. was denied satisfaction of his claims.

To challenge a gift agreement, specific limitation periods are defined from 1 to 3 years. They are established by the legislator to protect the violated rights of interested parties.

Termination (cancellation) of a gift agreement

Grounds for cancellation deed of gift provided for in Art. 578 of the Civil Code of the Russian Federation, these include:

• Commitment by the person who received the gift of an attempt on the life or health of the donor, his close relatives, or family members.
• Intentional infliction of bodily harm by the donee.
• A citizen who has become the owner of a gift may lose the donated item, which is of great non-property value to the donor, if he creates a threat to its irretrievable loss.
• The gift agreement may provide for its cancellation provided that the donor survives the donee.

The process of terminating a gift agreement initiated parties to the transaction or their representatives. In a situation where the donor is intentionally killed by the donee, the heirs of the victim have the right to demand termination of the contract in court.

As an additional basis for termination of the deed of gift there is refusal of the donee to accept certain property (Article 573 of the Civil Code of the Russian Federation). Analyzing judicial practice, we can conclude that often subject of dispute are legal relations associated specifically with the refusal to accept a gift.

Citizen S. filed a lawsuit demanding acceptance of the refusal of the gift and termination of the contract. The plaintiff received a share in the apartment from his brother, but after citizen S. received bills for payment utilities, the new owner of the property considered that maintaining the housing was too expensive and decided to refuse the gift. The court, having considered the circumstances of the case, decided to deny the plaintiff’s stated demands, since Citizen S. had the legal opportunity not to accept the gift, but became the owner of the apartment, and therefore, to terminate the contract there must be specific legal grounds, which were not established.

If the judicial authority makes a decision to cancel the donation, the donee must return the property he received.

The legislative norms applicable to the termination of a deed of gift do not apply to the gratuitous transfer of a gift of small value (no more than three thousand rubles) (Article 579 of the Civil Code of the Russian Federation).

Invalidity of the apartment donation agreement

Apartment donation agreement may be declared invalid in the following cases (Article 166 of the Civil Code of the Russian Federation):

• By decision of a judicial authority (voidable transaction).
• Regardless of the court's ruling (void transaction).

You can select grounds, in the presence of which the gratuitous transfer of an apartment is determined to be invalid:

• A transaction made by a minor citizen from 14 to 18 years of age, without the consent of legal representatives: guardians, parents.
• Donation without trustee approval individual limited in legal capacity by a court decision due to abuse of narcotic drugs and alcoholic beverages.
• A transaction made by a legally competent citizen who, at the time of its conclusion, was in a state where he was not able to direct his actions or understand their meaning.
• An agreement made under the influence or misconception of the donor.
• A deed of gift entered into as a result of fraud, threat, or violence.

A claim to invalidate a gift agreement will not have legal significance if the applicant acts in bad faith, that is, it gives reason to believe that the agreement was concluded lawfully.

Once the court decides that the gratuitous transfer is invalid, the gift must be returned subject to its preservation in kind, or there will be a need for payment of monetary compensation commensurate with the value of the gift.

Voidness of the gift agreement

• An imaginary transaction is concluded without the intention of creating legal consequences (donating an apartment in order to avoid confiscation of property).
• A sham agreement is drawn up in order to replace one transaction with another ().
• A contract concluded by an incompetent citizen recognized as such due to a mental disorder.
• Gift from a person under fourteen years of age. A minor does not have the right to independently dispose of real estate, although he has the opportunity to receive benefits free of charge, that is, a gift, and such a transaction should not require notarization or state registration.
• A gratuitous transfer made in violation of the disposal of property, for example, the donation of an apartment pledged to a banking organization.
• The gratuitous transfer was made for purposes directed against the foundations of law and order or morality.

The court has the right, on its own initiative, to apply consequences regarding the nullity of the gift agreement if this is necessary to protect public interests.

Judicial practice of canceling the donation of an apartment

The judicial authority, deciding the issue of canceling the apartment donation agreement, as significant circumstances takes into account:

• Negligent handling of property valuable to the donor by the person receiving the gift.
• The new owner of the property must have an idea of ​​what special meaning the donated object has for the donor.
• The severity and nature of the harm caused to the donor or his family members does not matter. What is important is the fact that violations took place.
• Intentionality of illegal actions.

If the above circumstances exist, the court makes a decision on and return real estate.

In judicial practice, there are cases when the recipient of a gift sells the gift in order to avoid its return.

Citizen K. filed a lawsuit to cancel the donation agreement and return the apartment transferred to Citizen M. The plaintiff explained that the defendant caused physical harm to his daughter and presented a certificate of injuries caused, issued medical institution. However, Citizen M. announced in court that the donated housing was sold, and he does not have the opportunity to return the apartment back. Despite the sale of the property, the court in its ruling satisfied the plaintiff’s demands and ordered the defendant to compensate for the damage caused to Citizen D. (Article 1082 of the Civil Code of the Russian Federation).

The judicial authorities in cases of cancellation of a gift agreement do not decide the issue of a person’s guilt; such determinations fall within the competence of criminal proceedings.

Court decisions to invalidate the gift agreement

The courts, when making decisions to recognize a gift agreement as invalid, in each individual case proceed from the specific circumstances of the case and the presence reasons necessary to determine the illegality of a transaction, namely:

• Failure to indicate essential conditions in the deed of gift for the apartment: name of the object, its location, technical specifications(cadastral number).

Death of the donor before the state registration of the agreement. In this case, the judicial authorities explain that the transaction is considered registered from the moment the entry is made in the Unified state register real estate (USRN), only after that there are legal consequences.

Moreover, if the documents were submitted for registration, but before the entry was made in the register, the donor died - this will not become a basis for invalidating the contract.

• The opinion of one of the spouses is not taken into account when donating real estate. For the gratuitous transfer of property located in joint ownership, the donor is obliged to obtain notarized consent from the husband or wife for such a transaction (Article 35 of the RF IC). Without official approval, a deed of gift can be declared invalid in court.

Citizen N. filed a lawsuit to declare the apartment donation agreement concluded between Citizen P. (the plaintiff’s former husband) and Citizen R. invalid. The applicant explained that at the time of the gratuitous transfer, the apartment belonged to the joint property of the spouses, the property was not divided. The court found that when drawing up the deed of gift, Citizen R. knew that the donor did not have the consent of his wife to the transaction. The court ruled that the parties acted in bad faith and that Citizen N.’s claims should be satisfied.

In order for a gift agreement to be declared invalid, it is necessary to provide evidence (witness testimony, medical reports, certificates, extracts) to the judicial authorities.

Judicial practice of recognizing a transaction as imaginary (feigned)

Donation made for cover, is a sham transaction, an agreement that does not create legal consequences- this is an imaginary contract (Article 170 of the Civil Code of the Russian Federation). Based on the analysis of judicial practice, most often, with the help of registration of a donation, they cover up or buy and sell real estate.

As evidence that can be submitted to the court include:

• Receipt for receipt of funds from the parties to the agreement.
• Testimony of those persons who did not participate in the transaction, but have information important for the court.
• Testimony of a notary, employees law firms, if the parties turned to them for help, etc.

When concluding imaginary or sham transactions, the parties may pursue specific legal purposes, for example, non-compliance with the pre-emptive right of purchase, which other property owners have, if a share in the common property is being sold (Article 250 of the Civil Code of the Russian Federation) or the desire to avoid confiscation of the apartment.

Judicial practice shows that when considering cases related to feigned and imaginary transactions, especially the following facts are taken into account:

• Has there been actual execution of the donation, that is, state registration of the transfer of rights?
• Does the donor continue to reside at the address where the apartment is located?
• Has the agreement for the provision of housing and communal services been reissued in the name of the new owner, and does the owner bear the costs of their consumption?
• Does the donee pay property tax?

Imaginary and feigned transactions are void from the moment of their completion.

Risks of purchasing an apartment under a gift agreement

Donation allows you to bypass certain provisions of the current legislation of the Russian Federation, but when deciding on such a transaction, the parties must be aware risks related to the desire to circumvent the rules of law:

• Giving is characterized by gratuitousness. In this case, the donor, concluding a fictitious transaction, can don't receive payment, since the corresponding agreement does not provide for monetary compensation for the transfer of ownership.
• If the parties are not close relatives, the recipient of the gift bears risk of non-payment in the amount of 13% for income received due to the purchase of an apartment.
• When completing a purchase and sale, the seller has the right to write down in the document terms of forfeit, penalties, in case of failure to fulfill obligations by the buyer. Penalties cannot be specified in the deed of gift.
• A person who has received an apartment under an imaginary (feigned) gift agreement, in a situation where the court recognizes the transaction as invalid, may lose money, which were contributed according to the actual and concealed purchase and sale transaction.

It is the interested citizen who filed a claim in court who will have to prove fictitiousness perfect gift agreement.

Challenging the gift agreement by heirs

Challenging a gift agreement by the donor's heirs is a common cause of litigation. Grounds for agitation production for this type of case may be as follows:

• The death of the donor due to the culpable actions of the donee.
• A gift without notarized consent to the transaction of the spouse of a deceased person.
• The heirs have the right to challenge the deed of gift if they prove that the agreement was imaginary (feigned).
• A gift from a citizen who during his lifetime was incapacitated or had limited legal capacity.
• It is possible to cancel a gratuitous transfer if the document is not drawn up properly, it contains additions, typos or conditions that contradict current legal norms.

A gift agreement can be declared invalid due to improper handling, which creates a threat to the preservation of the gift, only at the request of the donor himself; the heirs do not have such an opportunity.

Conclusion

A review of judicial practice related to challenging a deed of gift for an apartment shows that most often citizens go to court with demands: to recognize the gift agreement as invalid, applicants file lawsuits to establish the sham of the transaction, and there are often court proceedings based on complaints from the donor’s heirs.

The court, when making a decision on the case in each individual case, takes into account specific circumstances, as well as evidence presented by interested parties, this can be:

1. witness statements;
2. certificates;
3. extracts and other information important for the consideration of the dispute.

Judicial practice in the field of challenging a gift agreement suggests that this process is an extremely complex legal phenomenon.

The donor and recipient should foresee in advance the possible negative consequences of concluding the relevant transaction.

It may make sense to resort to the help of legal or notary firms, which will guarantee the literacy and legality of the document, as well as respect for the rights and interests of each party in the event of termination, cancellation, nullity or invalidity of the gift agreement.

Question

Where to go to have the deed of gift for an apartment invalidated?

I want to file a lawsuit in order to declare the apartment donation agreement concluded between my father and brother invalid. Tell me, to which judicial body should I submit the corresponding application if I live with my relatives in different cities?

Answer

Filing a complaint related to the rights to residential premises has exclusive jurisdiction, so you should send your claim to the district court at the location of the donated apartment.