Sometimes you want to make something nice, even give your property. But circumstances may change, and the deed of gift must be canceled. Naturally, a logical question arises - how to do this?
The concept of a gift contract
The gift agreement refers to a gratuitous transaction, since the donor does not have counter-property rights. If the donor receives other property or money in return from the donor, the transaction will be declared null and void.
Giving can be real or consensual. The latter term means that the gift transaction is only promised and should happen in the future.
The subject of the contract may be any property, rights of claim. For example, the donor may reject his future royalties in favor of the donor. The main thing is that the subject of the contract should have a clear specificity.
Cancellation of a deed of gift
The easiest way to cancel a transaction is to simply cancel the contract. But this is possible provided that the transaction has not yet been registered with Rosreestr. After registration, it can be canceled in a notarial order, but it is unlikely that the donor voluntarily wants to do this. Therefore, the donor has only one way - going to court. But even for the trial, it will be necessary to collect conclusive evidence to annul the contract.
There are good reasons for canceling a gift contract. An exhaustive list of circumstances is listed in Art. 578 of the Civil Code of the Russian Federation, which will allow to challenge a deed of gift:
- Attempt on the health and life of the donor. If the actions of the donor led to the death of the donor, then the heirs of the latter can cancel the transaction.
- Careless attitude to the subject of giving. For example, if the donor does not monitor the housing that he received as a gift, but for the donor it is of particular value.
- The cancellation of the gift may take place in the event that the donor survived the gift, again, if such a condition is specified in the contract itself.
- The heir can cancel the transaction, if such a right is enshrined in the donation agreement itself.
For legal entities and entrepreneurs, there is one more reason - a transaction can be canceled by interested parties if, half a year before the start of the bankruptcy procedure, a donation transaction was executed by the debtor.
The donor has the right to refuse if the subject of the contract is promised and should be transferred in the future. The grounds for such a refusal can be significant changes in the financial or marital status of the donor, and poor health. Simply put, the current conditions do not allow the donor to realize the deal, as it will lead to a radical deterioration in his standard of living.
Transaction nullity
Cancellation of a deed of gift is just one of the options for returning property.
The Civil Code provides for the donor other ways to return the property - recognition of the transaction as null or voidable.
No court evidence of the nullity of the transaction is required. Signs of such an agreement:
- does not contain essential conditions;
- no rights and obligations for the parties arise from the essence of the contract;
- no description of the subject of donation.
Another confirmation of the nullity of the transaction is a contradiction of the provisions of the agreement with the current legislation. For example, you cannot give a child. Such a deal violates not only ethical standards, but also regulatory acts.
An imaginary transaction is also considered void. This means if the parties to the contract do not have rights and obligations. For example, if the donor made a deal, but did not intend to transfer the subject of the contract to the recipient, and the latter did not intend to accept this thing.
The nullity of the transaction may be characterized by pretense. It is understood that an agreement is concluded between relatives, according to which the donor transfers, for example, an apartment, and the donor pays a certain amount. Such a transaction can only be regarded as sham, as the contract of donation hides the contract of sale of housing.
A transaction is considered void if one of the parties or both are legally incapable persons. The same situation with minors of the gift contract.
A contract of gift in the Civil Code is also considered null and void if the subject of the contract is property that is in limited possession or a ban is imposed on actions with it.
Challenged Deal
In order to declare the transaction disputable, you must definitely go to court. The legislation identifies several grounds that will challenge the gift agreement:
- If the gift agreement is signed without obtaining the corresponding consent, for example, from the spouse, if the property is in common ownership.
- If the donation contract is signed by an unauthorized person, for example, the head of the enterprise, according to the charter documents, does not have the right to donation without first obtaining the consent of the general meeting of shareholders or another governing body.
- The transaction by persons aged 14 to 18 years, as well as incompetent citizens.
The result of the cancellation of the gift agreement, for any reason and in any circumstances, entails the transfer in kind of the donated property. If the property is not saved, then its value is subject to monetary compensation from the endowed.
Donor Failure
A contract of gift under the Civil Code may be terminated at the initiative of the donor, but provided that the subject of the contract has not yet been transferred. By agreement of the parties, the contract may also be terminated, but before the transfer of property to the recipient.
The refusal of the person being presented shall be made out in the same form as the contract itself, in simple written form or by a notary public.
Going to court
The statement of claim is a petition to the court, which displays the requirements of the applicant (plaintiff). You can file a lawsuit in person or through an authorized person.
The form and content of the statement of claim are clearly defined by the provisions of the Code of Civil Procedure.
The “heading” of the document indicates the exact name of the court where the claim is directed. The full details of the plaintiff are registered. The following describes the circumstances that gave rise to a lawsuit, all information should be presented correctly and clearly. Further, it is possible to describe what measures of pre-trial settlement of the dispute have been taken.
At the end of the application, the requirements for the recipient and the list of attached documents are described. You can attach a copy of the contract of donation of the apartment or other property, written evidence of the defendant’s improper behavior, a receipt on payment of the state duty and documents confirming that the plaintiff tried to resolve the dispute peacefully.
It is recommended that the contact details of the plaintiff and defendant be clearly stated, up to the email address.
The statement of claim is made in several copies, for each of the parties, which will take part in the trial.
Within 5 working days from the moment the claim is filed with the court, the judge who will conduct the proceedings is determined, he issues a ruling on the initiation of civil proceedings.
Grounds for refusal to accept the application
An application for cancellation of a donation agreement may not be accepted for production, jurisdiction may not be observed, or an arbitration judge has already made a decision on this matter. Applications from legally incapable persons are also not considered.
The plaintiff has the right to withdraw his application until the moment the case is accepted into production.
Limitation of actions
In case of cancellation of the donation, a special limitation period does not exist. But the legislation nevertheless identifies some cases when the time period completely depends on the essence of the claim:
- if the transaction is disputable, then the period is 12 months from the moment when the plaintiff could find out about the fact giving the basis for contesting the transaction;
- to declare a transaction null and void - the general limitation period is 3 years from the moment of signing the gift agreement.
Grounds for suspension of the limitation period
- If the plaintiff could not, due to unforeseen or emergency circumstances, apply to the court.
- Service in the army as a donor or an endowed, the introduction of martial law.
- A moratorium has been imposed on the fulfillment of obligations under the contract.
The deed of gift for the apartment and its cancellation
Each person who decides to donate another should understand that the gift of the apartment does not imply changes to the conditions, it cannot be rewritten. Indeed, it is possible to terminate by agreement of the parties, but it is probably not worth hoping that the person presented will agree.
The cancellation of the gift by the donor involves going to court and providing irrefutable evidence. Namely:
- the absence of a notarized consent to the transaction from the spouse, provided that the property is jointly acquired;
- the plaintiff will be able to prove that he signed the contract under psychological or physical pressure;
- if the recipient is a person in the public service, such persons are prohibited from accepting any gifts;
- evidence that the donor’s signature is forged.
Do not forget about the norms of Art. 578 of the Civil Code of the Russian Federation, which contains a wide range of grounds for canceling a gift agreement.
As evidence, the court may take into account not only the written explanations of the parties, but also photographs, extracts from medical reports, videos, audio recordings, and eyewitness accounts.
Once the evidence is collected, you can safely go to court.
Deed of movable property and its cancellation
A car also refers to movable property, but at a price it is sometimes commensurate with real estate. As a result, claims for the cancellation of a gift contract for a vehicle are met in court no less than disputes about real estate.
It cannot be said that if you want to return movable property, other evidence is required than is provided for in other cases. Nevertheless, you can still find reasons to cancel the contract, for example:
- if there are errors in the donation contract in writing the details of the parties or in the description of the subject of donation;
- one of the conditions is that the property becomes the property of the person being donated only after the donor’s death, such a transaction has all the signs of a will;
- lack of signatures of one of the parties, that is, it is possible to prove the presence of the human factor.
Do not forget that the donor will not remain aloof and will also collect evidence so that the plaintiff could not appeal the contract. In some cases, if the donor really believes that all claims of the other party to the transaction are unlawful, it is better to involve a lawyer. Before the process, both parties are encouraged to familiarize themselves with the jurisprudence in resolving such cases.
Arbitrage practice
The cancellation of the gift contract was based on the fact that the donor was trying to prove that his only apartment was donated under the influence of the views of relatives to the granddaughter. The plaintiff hoped for financial assistance, medical care and housing maintenance. However, according to the plaintiff, the beneficiary did not allow him to live quietly in the apartment. Based on this, a lawsuit was filed, the requirements were substantiated also by the fact that at the time of signing the contract the plaintiff did not understand the real consequences, was impressed by the promises and untimely death of her husband. The defendant, of course, did not recognize the claim.
Even at the appellate court, the plaintiff was unable to prove her claims, substantiate the claim that she signed a deal under the influence of others, and as a result the lawsuit was not satisfied.
Another case when a citizen gave one of his apartments to a cousin. The giftee had no children, but only a wife with whom relations did not develop, therefore the brothers provided for a clause that the transaction could be canceled. For two years the donor was absent, having left for another country, upon arrival in Russia, he learned that his brother had died, and his wife had inherited the housing and had already managed to sell it. Based on the terms of the contract, the donor appealed to the court with a demand that the heiress return the apartment or reimburse its cost. As a result, the court sided with the plaintiff and ordered the defendant, who did not appear in court, to reimburse the cost of the housing sold.
Finally
It should be remembered that, despite the small number of grounds for canceling the gift agreement, the donor can prove his innocence, and the recipient will have to reimburse the value of the received property or return it.