Judicial practice in the field of contesting a gift agreement is characterized by the legal complexity of this category of cases. A deed of gift to an apartment can only be contested by grounds 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 from those who want to challenge the contract.

The decisions of the court depend on the specific circumstances of the case, as well as on the facts available, which testify to the bad faith of the accused person. A citizen who has filed a lawsuit must understand that burden of proof lies with the applicant.

When concluding a donation agreement, one should take into account the possible and negative consequences associated with the process of contesting the corresponding agreement. Participants of the donation should study the requirements for this type of agreement, and, when drawing up a document, be based on the principles legitimacy take into account the interests of each of the parties to the transaction.

Grounds for contesting a donation agreement

The process of contesting a donation agreement is complex legal phenomenon. In accordance with the current legislation, a deed of gift can be challenged by the following ways:

• By terminating, that is, canceling the agreement.
• Based on the recognition of the donation agreement as invalid.
• In view of the nullity of the transaction for the gratuitous transfer of the gift.

You can challenge the donation agreement:

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

You can challenge the legal relationship in the field of donation only in court, and only in the presence of the grounds provided for by the norms of law.

Citizen D. donated the apartment to his close friend Citizen N. After six months, a quarrel broke out between the donor and the donee, after which Citizen D. filed a lawsuit with a demand to challenge the gratuitous transfer and recognize the donation as invalid. The judicial authority found that there were no legal grounds to invalidate the transaction, the plaintiff did not provide the contract of donation of the apartment at the time of conclusion, it corresponded to the will of the parties, and meets legal requirements. Based on the facts established in the trial, Citizen D. was denied satisfaction of the claims.

To challenge a donation agreement, specific statute of limitations is defined from 1 to 3 years. They are established by the legislator to protect the violated rights of interested parties.

Termination (cancellation) of the donation agreement

Grounds for cancellation donation provided for by 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, family members.
• Deliberate infliction of bodily harm on the donee to the donor.
• A citizen who has become the owner of a gift may lose the donated item, which is of great non-property value for the donor, if he creates a threat to its irretrievable loss.
• The gift agreement may provide for its cancellation, provided that the donor outlives the donee.

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

As an additional reason for the termination of the deed of gift, donee's refusal to accept certain property (Article 573 of the Civil Code of the Russian Federation). Analyzing judicial practice, it can be concluded that often subject of dispute are the legal relations associated specifically with the refusal to accept the gift.

Citizen S. filed a lawsuit with a demand to accept the refusal of the gift and terminate the contract. The plaintiff received from his brother a share in the apartment, but after citizen S. received bills for utility bills, the new owner of the property considered that the maintenance of housing was too expensive and decided to refuse the gift. The court, having considered the circumstances of the case, decided to refuse the plaintiff's stated requirements, since Citizen S. had a legal opportunity not to accept the gift, but became the owner of the apartment, and therefore, there must be specific legal grounds for terminating the contract, which were not established.

In the event that the judicial authority decides to cancel the donation, the donee must return the property they 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 contract of donation of the apartment

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

• By decision of the judicial authority (disputable transaction).
• Regardless of the court ruling (void transaction).

Can be distinguished grounds, in the presence of which the gratuitous transfer of the apartment is determined as invalid:

• A transaction that is made by a minor citizen from 14 to 18 years old, without the consent of legal representatives: guardians, parents.
• Donation without the approval of the trustee from an individual who is limited in legal capacity by a court decision due to the abuse of narcotic drugs, alcohol.
• A transaction made by a capable 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 misrepresentation of the donor.
• Donation, concluded due to deceit, threat or violence.

The claim for the recognition of the donation agreement as invalid will not have legal value if the applicant is acting bad faith, that is, it gives reason to believe that the agreement was concluded legally.

After the court decides on the invalidity of the gratuitous transfer, 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.

The nullity of the donation 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 contract is drawn up in order to replace one transaction with another ().
• An agreement concluded by an incompetent citizen, recognized as such due to a mental disorder.
• A gift from a person under the age of fourteen. 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, while such a transaction should not provide for notarization or state registration.
• Free transfer, committed in violation of the disposal of property, for example, donating an apartment that is pledged to a banking organization.
• A free transfer is made for purposes directed against the foundations of law and order or morality.

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

Judicial practice of canceling the donation of an apartment

The judicial body, when deciding on the cancellation of the contract of donation of an apartment, as significant circumstances takes into account:

• Negligence in the treatment of the person who received the gift with valuable property for the donor.
• The new owner of the property must have an idea of ​​what special significance the donated object has for the donor.
• The degree of severity and nature of the harm caused to the donor or members of his family does not matter. What is important is the fact that violations took place.
• Intentional misconduct.

In the presence of the above circumstances, the court decides on and return real estate.

In judicial practice, there are cases when the recipient of the 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 issued by a 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 claims of the plaintiff and ordered the defendant to compensate for the harm caused to Citizen D. (Article 1082 of the Civil Code of the Russian Federation).

Judicial bodies in cases of cancellation of a donation agreement do not resolve the issue of the guilt of a person, such determinations fall within the competence of criminal proceedings.

Court decisions to invalidate the donation agreement

The courts, when making decisions on recognizing the donation agreement as invalid, in each individual case proceed from the specific circumstances of the case and the existence of grounds necessary to determine the illegality of the transaction, namely:

• Not indicating essential conditions in the donation for the apartment: the name of the object, its location, technical characteristics (cadastral number).

The death of the donor before the state registration of the contract. In this case, the judicial authorities explain that the transaction is considered registered from the moment an entry is made in the Unified State Register of Real Estate (EGRN), only after that there are legal consequences.

However, if the documents were submitted for registration, but before making an entry in the register, the donor died - this will not become the basis for recognizing the contract as invalid.

• The opinion of one of the spouses was not taken into account when donating real estate. For the gratuitous transfer of property located in joint ownership, the donor is obliged to obtain notarial 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 in court to recognize the apartment donation agreement concluded between Citizen P. (the former spouse of the plaintiff) and Citizen R. as invalid. The applicant explained that at the time of the gratuitous transfer, the apartment belonged to the joint property of the spouses, the division of property was not carried out. The court found that when making a deed of gift, Citizen R. knew that the donor did not have his wife's consent to the transaction. The court ruled: the parties acted in bad faith, the claims of Citizen N. to satisfy.

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

Judicial practice of recognizing an imaginary transaction (feigned)

Donation made for cover, is a sham deal, 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 donation, they cover up or buy-sell real estate.

As evidence that can be submitted to the court are:

• A receipt for receiving funds from the parties under the contract.
• Witness testimony of those persons who did not participate in the transaction, but possess important information for the court.
• Testimony of a notary, employees of law firms, if the parties turned to such for help, etc.

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

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

• Has there been a real execution of the donation, that is, state registration of the transfer of rights.
• Whether the donor continues to live at the address of the apartment.
• Whether the agreement on the provision of housing and communal services has been reissued in the name of the new owner, and whether the owner bears the costs of their consumption.
• Does the donee pay property taxes?

Imaginary and feigned transactions are void from the moment they are made.

Risks of buying an apartment under a donation agreement

A donation allows you to circumvent certain provisions of the current legislation of the Russian Federation, but when deciding on such a transaction, the parties must be aware risks associated with the desire to circumvent the rule of law:

• Giving is characterized by gratuitousness. In this case, the donor, concluding a fictitious transaction, can not get paid, since the relevant 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 non-payment risk in the amount of 13% for income received in connection with the purchase of an apartment.
• When making a purchase and sale, the seller has the right to prescribe in the document terms of forfeit, penalties, in case of default by the buyer. Penalties cannot be specified in the donation.
• A person who has received an apartment under an imaginary (sham) donation agreement, in a situation where the transaction is recognized by the court as invalid, may lose money, which were made under the actual and covered sale transaction.

It is the interested citizen who has filed a lawsuit in court that will have to prove fictitious completed donation agreement.

Contestation of a donation agreement by heirs

Contestation of a donation agreement by the donor's heirs is a common reason for litigation. Grounds for excitation production such cases may include:

• The death of the donor due to the guilty actions of the donee.
• Donation without notarial consent to the transaction of the wife or spouse of the deceased person.
• The heirs have the right to challenge the donation if they prove that the agreement was imaginary (feigned).
• A gift from a citizen who, during his lifetime, was incapacitated or partially incapacitated.
• It is possible to cancel a gratuitous transfer if the document is not properly executed, it contains additions, typographical errors or conditions that are contrary to the current rules of law.

It is possible to recognize a gift agreement as invalid due to improper treatment that poses a threat to the preservation of the gift, only at the claim of the donor himself, the heirs do not have such an opportunity.

Conclusion

A review of judicial practice related to contesting a donation for an apartment indicates that most often citizens go to court with demands: to recognize the donation agreement as invalid, applicants file lawsuits to establish the sham of the completed transaction, and litigation based on complaints from the donor's heirs is not uncommon.

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

1. witness's testimonies;
2. references;
3. extracts and other information important for the consideration of the dispute.

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

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

It may make sense to resort to the help of law or notary firms, which will guarantee the literacy and legality of the document, as well as the observance of the rights and interests of each of the parties in the event of termination, cancellation, nullity or invalidity of the donation agreement.

Question

Where to apply for the recognition of a donation for an apartment as invalid?

I want to file a lawsuit in order to recognize the apartment donation agreement concluded between my father and brother as invalid. Tell me, to which judicial authority should I apply if I live with my relatives in different cities?

Answer

In modern conditions, a real estate donation agreement is very common in practice, and with an increasing concentration in the ownership of subjects of civil law, and above all citizens, real estate (dachas, garages, apartments, rooms in communal apartments, houses and cottages, and non-residential buildings , enterprises, land plots, shares in the ownership of real estate; cases of donations of aircraft, sea and river vessels are not excluded), both the total number of real estate donation transactions and their share among real estate transactions will undoubtedly increase.

Accordingly, the number of litigation related to the execution and execution of donation transactions will increase. The "poverty" of the legal regulation of this agreement, the existing gaps in the law cannot but cause difficulties in law enforcement practice.

Consider an example from judicial practice.

05/25/2015 , Schindler M.V. filed a lawsuit against Gakh L.A. on the invalidation of the contract of donation of an apartment at the address: No. 22, on the street. Oktyabrskaya in the city of Barnaul, concluded on July 27, 2010, referring to the fact that the contract was concluded under the influence of delusion, since she believed that she was entering into a life-long maintenance contract with a dependent.

At the court session, the representative of the plaintiff insisted on the demands specifically for the recognition of the contract as invalid as concluded under the influence of delusion, explained that no demands were made for the cancellation of the donation in accordance with Article 578 of the Civil Code of the Russian Federation. In support of the claims, she explained that the contract was concluded in connection with the difficult life situation that existed at the time of its conclusion, connected with the abuse of alcohol by the plaintiff's son and his unlawful behavior towards his mother. The plaintiff is a disabled person, needed and needs constant outside care and care, concluding an agreement, she believed that she was entering into a life-long maintenance agreement with a dependent, t.to. the defendant promised to take care of the plaintiff and provide material support, she had no intention to donate an apartment. However, the defendant treats the plaintiff badly, took the keys and documents, in January 2015 caused harm by beating the plaintiff's health, currently the plaintiff's son, who no longer drinks alcohol, is taking care of the plaintiff. The defendant did not recognize the claims, declared that the statute of limitations had been missed, explained that the apartment was realized, donated by the plaintiff as a thank you for the support that the defendant denied her, taking care of her, protecting her from an abusive and aggressive son, whom the plaintiff was afraid of. In addition to the contract, the plaintiff wrote a statement in the presence of witnesses about donating an apartment and a sewing machine as a thank you, her signature was notarized.

After hearing the parties, having studied the materials of the case, the court finds that the stated claims are not subject to satisfaction on the following grounds.

In accordance with Article 178 of the Civil Code of the Russian Federation (as amended in force until 09/01/2013), a transaction made under the influence of a delusion of significant importance may be declared invalid by the court at the claim of the party acting under the influence of delusion.

Of significant importance is the misconception about the nature of the transaction or the identity or such qualities of its subject, which significantly reduce the possibility of its intended use. Misconception about the motives of the transaction is not material.

By virtue of a direct indication of the law, such a transaction is voidable.

Within the meaning of Art. 178 of the Civil Code of the Russian Federation (a transaction is considered invalid if the will of the party expressed in it was incorrectly formed due to error and entailed other legal consequences than those that the party really had in mind. Under the influence of error, the participant in the transaction, in addition to his will, makes an incorrect opinion or remains unaware of certain circumstances that are essential for him, and under their influence makes a deal that he would not have made if he had not been mistaken.

The terms of the donation agreement dated July 27, 2010 regarding the nature of the transaction - donation (clause 1) and the consequences of concluding a transaction - the transfer of ownership to the donee (clause 8) are set out clearly and clearly for understanding, do not allow other than a literal interpretation.

In addition, simultaneously with the conclusion of the contract, the plaintiff presented to the notary a statement written by the plaintiff in his own hand that the son abuses alcohol, offends and beats the plaintiff, Gakh L.A. has been caring for her since 1997. in connection with which, as a token of gratitude, the plaintiff gives an apartment and a sewing machine. The facts stated in the statement were confirmed by witnesses. The authenticity of the plaintiff's signature in the said application was certified by a notary.

The plaintiff's arguments that at the conclusion of the disputed contract she had the intention to conclude a life maintenance contract with a dependent are not supported by any evidence, they contradict the above written, including written by the plaintiff's own hand, evidence.

The fact that the plaintiff needs care, a change in relations with his son, as well as the payment of utility bills by the plaintiff living in this apartment, does not affect the assessment by the court of the will and intention of the plaintiff when concluding the contested contract.

In addition, the defendant stated that the statute of limitations had been missed.

The disputed contract was concluded on 07/27/2010, the claim was filed with the court on 01/23/2015.

In accordance with Part 2 of Article 181 of the Civil Code of the Russian Federation, the limitation period for a claim to recognize a voidable transaction as invalid and to apply the consequences of its invalidity is one year. The running of the limitation period for the specified claim begins from the day the violence or threat under the influence of which the transaction was concluded ceases (paragraph 1 of Article 179), or from the day when the plaintiff learned or should have learned about other circumstances that are the basis for declaring the transaction invalid.

In addition, in accordance with Part 2 of Art. 196 of the Civil Code of the Russian Federation, the limitation period cannot exceed ten years from the date of violation of the right for the protection of which this period is established, with the exception of cases established by Federal Law No. 35-FZ of March 6, 2006 "On Combating Terrorism".

The plaintiff, as a party to the contract, signed it, the contract contains a provision that the parties have read the contract, its meaning and meaning are explained and correspond to the intentions of the parties (paragraph 11), from which the court concludes that the plaintiff knew about the concluded transaction and its nature from the moment of its conclusion, 28.08.2010, the transfer of ownership was registered, the plaintiff missed the statute of limitations.

Guided by Articles 13,194-199 of the Code of Civil Procedure of the Russian Federation, the court decided:

To satisfy the claims of Schindler against Gakh to recognize the transaction as invalid, to refuse to apply the consequences of the invalidity of the transaction. The decision is correct.

We agree with the decision of the court. According to paragraph 2 of Art. 199 of the Civil Code of the Russian Federation, the expiration of the limitation period, the application of which is declared by the party to the dispute, is the basis for the court to issue a decision to dismiss the claim.

Conclusion. Judicial practice in challenging a gift agreement can be divided into two groups: termination of a gift agreement and recognition of a gift agreement as invalid. The general rules for invalidating transactions (Articles 168-179 of the Civil Code of the Russian Federation) are also applicable to a gift agreement. Lawsuits for the termination of a donation agreement or its invalidation are quite common.

Summing up the chapter, we can conclude that after the performance of a gift obligation, it can be canceled only in cases established by law, including if the donee has made an attempt on the life of the donor, one of his family members or close relatives, or intentionally caused bodily harm to the donor ; if the donee treated the donated thing improperly, which creates a threat of its loss; if the donor outlived the donee, provided that such a basis for the cancellation of the gift was provided for by the contract, etc. Often the basis for recognizing the donation agreement of an apartment as invalid is both a transaction made under the influence of delusion, deceit, threat, and a transaction under Article 177 of the Civil Code of the Russian Federation, made by a person, although capable, but at the time of making the will, was in such a state that he could not understand the meaning of his actions or direct them.

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. The correct word is "imprinting".

A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.

Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand this, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.

System and Observer

Let us define a system as an object whose existence is not in doubt.

An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.

An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis #1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis #2. Internal Observer

It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

External observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the “internal observer”, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.