Deed of a Gift of an Apartment Co-Owned by Spouses
In accordance with Art. 34 of the Family Code of RF and Art. 256 of the Civil Code of RF the property (including residential premises, apartments) acquired in the name of one of the spouses in the course of their marriage at the expense of the spouses’ joint income is their joint property.
The right to the joint property belongs also to a spouse who in the course of marriage kept the house, looked after the children or due to any other valid cause had no independent income (para 2, Art. 34 of the Family Code of RF).
In the event the apartment has been bought with the money belonging to one of the spouses, which should be proved, the sole proprietor of the whole apartment is the spouse who has bought the apartment.
In accordance with Art. 244 of the Civil Code of RF the joint property of the spouses is their common property in which no shares have been determined. The co-owners jointly possess and use common property. Transactions with the above property are carried out with the both spouses’ consent.
A co-owner (one of the spouses) of the joint property cannot alienate (gift included) his/her share in the common property. For this purpose it is necessary first to determine and apportion the share (Art. 254 of the Civil Code of RF).
In compliance with Art. 39 of the Family Code when the shares are determined in the spouses’ common property, such shares, as a rule, are deemed equal.
In view of the foregoing a deed of a gift of the apartment co-owned by the spouses will be a deed of a gift by a spouse of his/her part of the apartment to the other spouse. A part of the apartment co-owned belongs to the spouse by law and another part - by virtue of the deed of a gift.
The deed of a gift of an apartment is subject to the statutory registration (para 3, Art. 574 of the Civil Code of RF).
The law does not contain a direct reference to a mandatory notarization of a gift transaction. However, the authorities responsible for registration of transactions with real estate in Moscow request for registration notarized deeds.
Subject to the Law of RF On the Tax on the Property Inherited or Received as a Gift the tax payers are the persons receiving the gift.
Article 2 of the above Law sets forth the rates of the tax on the property received as a gift.
Article 4 of the Law stipulates the tax privileges. Thus, the property which is a gift of one spouse to the other spouse is exempt from taxes.
Notarization of the deed of a gift of the apartment is subject to payment of a duty at the rate of 0.5% of the amount indicated in the deed, but no less than 50% of the minimal labor remuneration rate for the spouses’ children, parents, siblings.
The registering authorities charge about 200-300 Rubles for registration of the above transaction.