Challenging a donation in court can be made by an interested person for a rather extensive list of reasons- due to the pretense of donation (Article 170 of the Civil Code), ignoring the essential terms of the contract (Article 432 of the Civil Code), failure to comply with the required form (Article 574 of the Civil Code), etc. If the court recognizes the presence of at least one of them, the onset of adverse legal consequences (invalidation) for the parties to the transaction will be inevitable.

If some disagreements and claims regarding the implementation of the gift agreement were expressed not from third interested parties, but from the party to the transaction even before the transfer of the gift, then it may well realize its right to terminate a contract in court and terminate the donation legal relationship. Each of the parties has general (Article 450 of the Civil Code) and special grounds (Article 573 of the Civil Code, Article 577 of the Civil Code).

In addition to unilateral termination, the law also provides for a procedure cancellation of donation, which is aimed solely at protecting the interests of the donor. Note that some grounds for cancellation of donation can be applied both before and after the transfer of the gift to the donee (clause 1 of article 578 of the Civil Code). So, if there are grounds provided for in Art. 578 of the Civil Code, the donor has the right to judicially cancel the donation, which will oblige donee return everything received under the transaction or refund its cost.

According to civil law, the regime of common joint property can operate only between legal spouses (Article 34 of the SK) or between members of a farm (Article 7 of the Federal Law No. 74 of 23.06.2003).

Taking into account the consent of co-owners to make a donation by one of them, except in exceptional cases, should be considered nothing more than a formality. So, according to paragraph 2 of Art. 253 GK, such consent is initially presumed(assumed), unless otherwise provided by an agreement between such co-owners.

An exception to this rule is transactions for the alienation of real estate jointly owned by the spouses. According to paragraph 3 of Art. 35 SK, donation of real estate jointly owned by the spouses, possibly by one of them, only with the notarized consent of the other spouse... In the absence of such consent, the transaction may be challenged in court at the initiative of the spouse, who did not give a notarized consent.

For your information

According to Art. 2 Federal Law No. 122 of July 21, 1997, the state registration of rights to real estate is an act of recognition and confirmation by the state of the transfer and termination of rights to real estate. Thus, registration does not give rise to rights to real estate, but only officially confirms their transfer to another subject.

Based on the foregoing, at the time of filing an application for registration of rights to real estate to the registration authority under an agreement concluded after 03/01/2013, the legal relationship of the parties, including the obligations of the donor already should be considered arisen, even though the transfer of ownership is carried out only after it has been carried out.

Thus, the death of the donor after the conclusion of the real estate donation agreement, but before the completion of its registration, can not deprive the donee of the opportunity to protect his property rights. However, as judicial practice shows, many heirs of such deceased donors do not agree with this conclusion and believe that before the transfer of rights to real estate to the donee, in the event of the donor's death, such real estate can be included in the estate by challenging the donation.

Despite this, domestic legislation does not contain an indication of the possibility of challenging the donation and recognizing its invalidity if the registration of an already completed contract was completed after the death of the donor. And besides, proceeding from the norms of Art. 1112 of the Civil Code, in the event of the death of the donor after the conclusion of the donation agreement, all his property obligations are transferred to the heirs.

Thus, even in the event of the death of the donor before the filing of an application for state registration, the obligation of such registration his heirs will be burdened... If such heirs directly evade state registration, in accordance with paragraph 2 of Art. 165 of the Civil Code, it can be carried out by the donee by a court decision.

In modern conditions, the 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 (summer cottages, garages, apartments, rooms in communal apartments, residential buildings and cottages, and non-residential buildings , enterprises, land, share in the ownership of real estate; the cases of donations of both aircraft, sea and river vessels are not excluded), undoubtedly, both the total number of real estate donation transactions and their share among real estate transactions will increase.

Accordingly, the number of legal disputes related to the commission and execution of donation transactions will increase. The "scarcity" of 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, M. V. Schindler filed a lawsuit against Gakh L.A. on invalidation of the agreement of donation of the apartment at the address: №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 contract of lifelong maintenance with a dependent.

At the hearing, the plaintiff's representative insisted on the requirements for the recognition of the contract as invalid as concluded under the influence of delusion, she explained that they did not declare claims 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, related to the plaintiff's son's abuse of alcohol and his unlawful behavior towards his mother. The plaintiff is a disabled person, needed and is in need of constant outside care and care, concluding the contract, she believed that she was entering into a life maintenance contract with a dependent, tk. the defendant promised to look after the plaintiff and provide material support, she had no intention of donating an apartment. However, the defendant treats the plaintiff badly, took the keys and documents, in January 2015 caused harm by beating the plaintiff, currently the plaintiff's son, who no longer drinks alcohol, is caring for the plaintiff. The defendant did not admit the claim, announced that the statute of limitations had been missed, explained that the apartment was deliberately given by the plaintiff as gratitude for the support that the defendant refused her, taking care of her, protecting her from the alcoholic 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 the donation of an apartment and a sewing machine as a gratitude, her signature was notarized.

Having listened to 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 up to 01.09.2013), a Transaction made under the influence of a delusion of significant importance may be recognized by the court as invalid at the suit of the party acting under the influence of the delusion.

A delusion about the nature of the transaction or the identity or such qualities of its subject matter that significantly reduce the possibility of its intended use is essential. Misconception about the motives of the transaction is not significant.

By virtue of the 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 delusion and entailed other legal consequences than those that the party really had in mind. Under the influence of delusion, the transaction participant, against his will, makes a wrong opinion or remains in the dark about certain circumstances that are of significant importance to him, and under their influence he makes a deal that he would not have made if he had not been mistaken.

The terms of the donation agreement of 07/27/2010 regarding the nature of the transaction - donation (clause 1) and the consequences of concluding the transaction - the transfer of ownership to the donee (clause 8) are set out clearly and clearly for understanding, do not allow anything other than literal interpretation.

In addition, the plaintiff, simultaneously with the conclusion of the contract, presented to the notary a statement in his own hand written by the plaintiff that the son abuses alcohol, offends and beats the plaintiff; since 1997, Gakh L.A. has been caring for her. in connection with which, as a token of gratitude, the plaintiff donates 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 is certified by a notary.

The plaintiff's arguments that at the conclusion of the contested contract she intended to conclude a life maintenance contract with a dependent are not supported by any evidence, contradict the above written evidence, including the plaintiff's own handwritten 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 court's assessment of the plaintiff's will and intentions when concluding the contested contract.

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

The contested agreement was concluded on 07/27/2010, the claim was filed in 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 the request to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year. The course of the limitation period for this requirement begins from the day the violence or threat ceased, under the influence of which the transaction was made (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 recognizing the transaction as invalid.

In addition, in accordance with Part 2 of Art. 196 of the Civil Code of the Russian Federation, the limitation period may not 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 Countering Terrorism."

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

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

Refuse to satisfy Schindler's claims against Gakh regarding the recognition of the transaction as invalid, and the application of the consequences of the invalidity of the transaction. The decision is correct.

We agree with the court's decision. 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's decision to dismiss the claim.

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

Summing up the chapter, we can conclude that after the fulfillment of the donation obligation, it can be canceled only in cases established by law, including if the donee made an attempt on the life of the donor, one of his family members or close relatives, or deliberately inflicted bodily harm on the donor ; if the donee handled the donated thing inappropriately, which creates a threat of its loss; if the donor outlived the donee, provided that such a basis for canceling the donation was provided for by the contract, etc. Often, the basis for recognizing the donation agreement of the apartment as invalid is both a transaction made under the influence of delusion, deception, threat, and a transaction under article 177 of the Civil Code a person, although capable, but who was at the time of drawing up the will in a state where he could not understand the meaning of his actions or control them.

One of the problematic issues arising in the practical economic activities of legal entities is the issue of the sale of a share in the authorized capital of a business company (Limited Liability Company). A donation agreement for a share in the authorized capital of an LLC may be deemed null and void as a sham transaction if it has not been executed and the member of the company who has ceded a share under such an agreement continues to exercise the rights of a member.

In practice, situations arise when a company participant enters into a donation agreement for a share in the authorized capital of an LLC, having no goal of transferring this share at the time of its conclusion, and in fact continues to exercise the rights of a participant. In such cases, the question arises of the possibility of qualifying such a donation agreement as an imaginary transaction and, as a consequence, declaring it null and void on the basis of paragraph 1 of Art. 170 of the Civil Code of the Russian Federation.

The following example from judicial practice can serve as an illustration of this statement: Decree of the Federal Antimonopoly Service of the North-West District of 01/22/2013 in case No. А44-619 / 2012 // ATP Consultant plus.

“... The agreement of 15.11.2007 formalized the donation of P.L. share in the amount of 39.66% of the authorized capital of the Company with a par value of 4,000,000 rubles.

Disputing the donation 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, and also to 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 Society accepted and registered P.'s application for leaving the Society.

It follows from the materials of the case that after the conclusion of the contested agreement on 15.11.2007 P. actually continued to be a member of the Society, and on 29.12.2007 left the list of participants. Under the agreement dated 09.02.2008 concluded between P. and the Company, P. in connection with his withdrawal from the Company 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 donation agreement, P. and L. did not fulfill it and did not intend to fulfill it, and the transfer of the share to L. was actually not envisaged by the parties when concluding the agreement.

In such circumstances, the conclusion of the court of appeal was recognized as legitimate, the contested agreement meets all the signs of a transaction made only for appearance, without the intention to create the 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 null and 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 donation if the donee has made an attempt on his life, the life of any of his family members or close relatives, or deliberately inflicted bodily harm on the donor. In the event of deliberate deprivation of the life of the donor by the donee, the right to demand the cancellation of the donation 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 the unworthy behavior of a gifted person, which make it possible to raise the question of canceling donation. These include: the deprivation of 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 sentence of the magistrate, which entered into legal force, by which the donee was found guilty of committing a crime (causing bodily harm) against a close relative of the donor (spouse), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for canceling the contract of donation of living quarters. -Petersburg city court from 17.08.2010 N 33-11269. The verdict of the magistrate, which has entered into legal force, by which the donee was found guilty of committing a crime (causing bodily harm) against a close relative of the donor (spouse), in accordance with the provisions of Article 578 of the Civil Code of the Russian Federation, serves as the basis for canceling the contract of donation of living quarters, which is common property spouses, at the claim of the victim as a participant in joint property, and therefore as a participant in the donation agreement // Website of the St. Petersburg City Court: http://sankt-peterburgsky.spb.sudrf.ru.

“During the marriage, K.I. the share in ZhSK-1241 for a two-room apartment was paid in full on April 23, 2003 with the consent of K.T. 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" 13.05.2003.28.09.2006 K.I.

Going to court with a claim, 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 the judicial district N 60 of St. Petersburg from 13.02.2009, which entered into legal force, by which K.A. found guilty of committing against K.T. crimes under Part 1 of Art. 119 of the Criminal Code of the Russian Federation. The court proceeded from the fact that the fact that K.A. K.T. established by the verdict of the magistrate of the judicial section No. 60 of St. Petersburg, which entered into legal force. In such circumstances, and subject to 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 this connection, he terminated the donation agreement of 23.04.2003 "

An attempt can manifest itself either in the form of causing physical harm (in judicial practice in criminal cases, it is customary to consider life-threatening serious and moderate harm to health - Articles 30 and 105, 111, 112, 115, 116 of the Criminal Code of the Russian Federation of 13.06.1996 N 63- FZ), or in organizing an encroachment. Actions allowing the donor to cancel the donation must be committed by the donee deliberately.

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

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

We believe that in case of cancellation of the donation agreement and the impossibility of returning the gift item in kind, the gifted person may have another obligation stipulated by the legislation in Article 7 of the Civil Code of the Russian Federation, namely a conditional obligation associated with unjust enrichment. In this case, in accordance with Article 1105 of the Civil Code of the Russian Federation, the plaintiff (donor) is entitled to demand from the defendant (donee) compensation for the actual value of the property (gift) at the time of its receipt. At the same time, 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 donated item.

Also, in practice, situations often arise when a shareholder of a closed joint-stock company (CJSC) enters into a donation agreement for shares without observing the requirements of the Law on Joint-Stock Companies on the preemptive right to purchase shares. If a shareholder, whose preemptive right has been violated, disputes such a transaction and requires the transfer of the rights and obligations under it, he must prove the pretense of such a donation agreement.

Thus, the plaintiff, challenging the share donation agreement with the aim of recognizing it as a sham transaction covering the sale and purchase agreement, must prove that such a transaction was of a compensatory nature. 14.8. Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation of 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 in order to cover up another transaction, is void. An interested person who has a preemptive right to purchase shares may demand that the rights and obligations of the buyer of shares under a transaction concluded with a third party be transferred to him if he proves that the agreement on gratuitous disposal of shares (donation) concluded by a company participant with a third party is a sham transaction and in fact the shares were disposed of on a reimbursable basis.

By virtue of paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, a donation agreement is a gratuitous transaction. Thus, the subject of proof in such disputes includes the clarification of the question of whether the shares were transferred free of charge or whether there was a counter grant on the part of the buyer. The presence of a counter transfer of a thing or right, as well as the conclusion by the parties of a transaction with the aim of covering up another transaction, in accordance with Art. 65 APC RF must prove the plaintiff.

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

“... In the event that an interested person who has a preemptive right to purchase shares presents evidence that the contract for the gratuitous disposal 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 reimbursable basis , such an agreement by virtue of paragraph 2 of Article 170 of the Civil Code Russian Federation is null and void, and the rules governing the relevant agreement are applied to the transaction, taking into account its substance. A person whose preemptive right to acquire shares has been violated may, in this case, demand that the rights and obligations of the buyer of shares be transferred to him under a transaction concluded with a third party ... ”.

Judicial and arbitration practice knows a lot of disputes related to the donation of shares of a CJSC by a shareholder to third parties. The court, deciding the case when the formalities of donating shares of the CJSC have been complied with (the contract and other documents are outwardly drawn up decently), and the interested person (the plaintiff) does not present direct evidence of the return of the transaction (receipt, act of transfer of funds, etc.) with a gift and refuses the plaintiff to satisfy the requirements for recognizing the transaction as invalid.

At present, judicial and arbitration practice is focused only on obvious evidence (retribution of the transaction), clearly confirming the nullity of the transaction. The decision of the Arbitration Court of the Sverdlovsk Region of 18.02.2008 in case No. A60-2252 / 2007-C2. The court refused to satisfy the claim for invalidation (sham) of the company's share donation agreement, since the materials of the case confirmed that the agreement is free of charge // Reference and Legal System Consultant Plus.

However, a careful consideration of such a transaction allows us to identify many flaws and ambiguities, as well as to form a system of circumstantial evidence (lack of proposals from the donee to other shareholders to sell shares of the CJSC; execution of a donation agreement with a notary who does not serve the site where the donor lives; non-claim by the notary from the donor documents confirming the authority 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; registration of powers of attorney for representatives whom the donor did not know and did not see before , but which were seen in raider operations; deliberate and systematic evasion on the part of the donor from appearing at court sessions, etc.). An unbiased consideration of the totality of circumstantial evidence cannot but lead to an obvious conclusion about the pretense of the completed donation transaction. Otherwise, a person acting law-abiding, i.e. another shareholder of the CJSC falls into a state of despair and defenselessness.

The foregoing shows that the above-mentioned provisions of Art. 7 of the Law on Joint-Stock Companies Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (as revised on April 5, 2013) together with the clarifications of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 "On some issues of the application of the Federal Law" On Joint Stock Companies "//" Bulletin of the Supreme Arbitration Court of the Russian Federation ", N 1, 2004. and the corresponding judicial and arbitration practice create ample opportunities for the implementation of the so-called" hostile takeover "of CJSC.

Covering the problematic issues of the cancellation of donation, it should be emphasized that a specific feature of the donation agreement, which distinguishes it from all other civil law contracts, is the opportunity provided to the donor and his heirs to cancel the donation. This feature is inherent both in contracts made by transferring a gift to the donee, and in contracts of gift promise fulfilled by the donor. At the same time, the cancellation does not apply to the grounds for terminating the donation contract. We are talking about such situations when the gift has already been transferred to the donee and as a result of this, 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 donation contract, accompanied by the transfer of property, has already taken place as a legal fact, and the consensual donation contract (the donation promise contract) has terminated due to its proper execution. Therefore, one cannot but agree with the opinion of I.V. Eliseeva, who believes that the donor, canceling the gift, “actually annuls the contract as a fact that entailed legal consequences.” Sergeev A.P., Tolstoy Yu.K. "Civil Law": Textbook. M .: Prospect, 2012.

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

Cancellation of donation is possible in the following four cases:

1.if the donee made an attempt on his life, the life of any of his family members or close relatives, or deliberately inflicted bodily harm on the donor;

2. if the donee's treatment of the donated thing, which is of great non-property value for the donor, creates a threat of its irrevocable loss;

3. the court may revoke 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 entrepreneurial activities, within 6 months preceding the declaration of such a person as insolvent (bankrupt);

4. the donation agreement may stipulate the right of the donor to cancel the donation if he outlives the donee.

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

So, 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 a delusion about the nature of the transaction. donation of living quarters: analysis of the law enforcement aspects of the problem ”// Housing Law. 2012 N 10.- 13 p.

The donor, concluding a donation agreement for a dwelling, mistakenly believes that the donee is obliged for the dwelling donated to him to perform certain actions of a property and personal nature in favor of the donor. Otherwise, in the opinion of the donor, the donation agreement may be invalidated.

This case was considered in the Appeal Ruling of the St. Petersburg City Court of April 4, 2012 N 33-4656 Appeal Ruling of the St. Petersburg City Court of April 4, 2012 N 33-4656 // Legal system Consultant plus .. By the decision of the appellate instance to the plaintiff the claims for the cancellation of the decision of the first instance court were denied.

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

In the future, the defendant avoided fulfilling the promises made to him, in connection with which the plaintiff went to court.

The cassation instance 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 delusion of significant importance may be recognized by the court as invalid at the claim of the party acting under the influence of the delusion. A delusion about the nature of the transaction or the identity or such qualities of its subject matter that significantly reduce the possibility of its intended use is essential. Misconception about the motives of the transaction is not significant.

From the above 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 ownership rights, whereas, when transferring the apartment under the controversial donation agreement to the ownership of the defendant, the plaintiff could not but know that the ownership rights were being transferred to her.

The cassation instance pointed out that the consistent nature of the plaintiff's actions, expressed in the fact that he personally entered into an agreement on the donation of living quarters with the defendant, took part in registration actions, issued a power of attorney for the defendant to register inheritance rights to the disputed apartment, as well as a power of attorney for a third party to 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 performed actions in order to transfer the ownership of the disputed apartment to the defendant under the donation agreement.

The court also pointed out that the plaintiff's arguments that the defendant did not fulfill the agreement reached between the parties that the defendant would look after him, provide material assistance and pay utility bills, would make repairs in the apartment, were rightfully declared insolvent by the court of first instance, since the data the circumstances have no legal significance for the consideration of this dispute, do not relate to the nature of the transaction and its legal consequences. The reasons for concluding an agreement by virtue of Art. 178 of the Civil Code of the Russian Federation are not significant.

The above example from the judicial practice of a donation agreement for living quarters shows that the property and personal obligations given to the donee in favor of the donor in the execution of the specified transaction have no legal force, since the donee is not assigned any of the obligations declared by the plaintiff and, especially importantly, such obligations do not follow 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 seen that the donation agreement in this case acted as a sham transaction concluded to cover up the contract of lifelong maintenance with dependence. 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 to cover up another, is void. For a transaction that the parties really had in mind, taking into account its substance, the rules relating to it apply.

Consequently, the plaintiff had to challenge the nullity of the contract of donation of residential premises due to the recognition of this 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 associated with the conclusion of a donation agreement, in particular for residential premises, is the requirement to recognize the donation agreement as a sham 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, an imaginary transaction is a transaction made only for appearance, without the intention to create legal consequences corresponding to it. Sham transactions are considered null and void. As a rule, living quarters are donated to the donee in order to avoid foreclosure on the donor's property for his obligations to creditors.

The specified case is considered in the cassation ruling of the St. Petersburg City Court from N 33-1707 / 2012 of February 7, 2012 The cassation ruling of the St. Petersburg City Court of N 33-1707 / 2012 of February 7, 2012 // ATP Consultant plus.

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

In June 2010, the plaintiffs appealed to the court with demands to recognize the said donation agreement as a sham transaction, referring to the fact that it was entered into with no intention of creating legal consequences, with the aim of evading the defendant from foreclosure on the property belonging to him under his debt obligations to the plaintiffs. ...

The cassation instance dismissed the claims of the plaintiffs and noted that the court of first instance, on the basis of the evidence presented, made the correct conclusion about the lack of proof of the circumstances indicated by the plaintiffs as grounds for recognizing the donation contract as a sham transaction, and in this regard, correctly refused to satisfy the stated claims.

The cassation instance noted that from the materials of the case it follows that the contested 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 was registered to the disputed apartment, i.e. e. the legal consequences corresponding to the donation agreement did indeed occur. 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 implementation of the owner's powers by the defendant's sister in relation to the disputed apartment is confirmed by the fact that she paid tax for this real estate object for 2009 - 2010, the lease agreement concluded by her with a third party and the power supply agreement, a work order for sealing the meter, drawing up a personal account in the name of the donee.

It seems important that the court indicates that the above arguments of the plaintiffs could be meaningful only if the law provided for independent grounds for the invalidity of transactions made by a citizen if he has signs of inability to answer for his obligations to creditors. The provisions on the possibility of challenging the debtor's transactions that harm the property rights of creditors are provided for in Chapter 3.1. Federal Law "On Insolvency (Bankruptcy)" dated 26.10.2002 N 127-FZ.

However, within the meaning of the provisions of Art. 61.8 and 61.9 of this Law, the dispute of the debtor's transactions is carried out within the framework of the debtor's bankruptcy case, and the corresponding application may be submitted to the arbitration court by the external or bankruptcy administrator on behalf of the debtor on his own initiative or by decision of the meeting of creditors.

At the same time, the provisions of Chapter 10 of the same Law on the 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 appropriate amendments and additions to federal the laws.

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

The court noted that at the time of the conclusion of the donation agreement of 16.10.2008, there were no court orders to recover from the defendant in favor of the plaintiffs the debt under the loan agreements, in the execution of which the execution could be levied on the property belonging to the defendant.

The cassation instance upheld the decision of the first instance court on the recognition of the contract of donation of residential premises as a sham transaction.

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

Lawsuits to terminate or invalidate a gift agreement are fairly common. Often, the basis for recognizing an apartment donation agreement as invalid is both a transaction made under the influence of delusion, deception, threats, and a transaction under article 177 of the Civil Code of the Russian Federation, committed by a person, although capable, but who was at the time of drawing up the will in a state where it could not understand the meaning of their actions or lead them.

Another risk is associated with the notion of a sham transaction, when a contract of donation of real estate covers up a contract of sale. This option for acquiring real estate is common. This option is illegal, donation is a gratuitous transaction, 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 falsity of the transaction, the court practice on donation issues has an unambiguous position: the donation agreement is declared invalid and the consequences of the invalidity of the transaction are applied. Such disputes are resolved by the court in general order at the request of any interested person.

The legislation of the Russian Federation considers donation as an independent type of contract, the execution of which provides for certain actions of the parties. Failure to comply with or violation of the conditions for this type of contract, call the legality of its conclusion into question.

When concluding a donation agreement, the parties do not always have an idea of ​​what the consequences may entail improper form contract or non-compliance with the requirements of the law for this type of transaction. As a result, litigation often arises for the recognition of a donation contract not concluded.

Specification of the subject of the real estate donation agreement

Interpreting Art. 432 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), when concluding an agreement, the parties must agree on all the essential terms of such an agreement, otherwise, such an agreement will not be concluded.

Under essential conditions means the conditions on the subject of donation, which legislation or regulations oblige to reflect when drawing up a document. The conditions that are essential for the contract are:

• Name the subject of donation (that is, a gift that is transferred from the donor to the donee);
• the location of the gift (if the gift is real estate);
• characteristics of the gift (for real estate, this can be specifications, cadastral number, etc.).

Important

Judicial practice shows that the parties to the transaction do not always understand what the essential conditions mean and, relying on their understanding of them, indicate insufficient or do not indicate the essential conditions of the contract in the document at all.

At the same time, if the subject of donation is not sufficiently specific (for example, when donating shares, it is not indicated which parts of the property are donated), this cannot serve as a basis for recognizing the donation as not concluded.

Registration of the transfer of ownership after the death of the donor

When donating real estate, you must register the transfer of rights on property from the donor to the donee (Article 574 of the Civil Code of the Russian Federation). Registration is carried out according to statements from both sides transactions. Only in this case the deal considered a prisoner.

However, situations arise when the donor died before the state registration. What to do in such cases? In judicial practice, there are very often cases on disputes about the legality of such registration. Moreover, the opinions of the courts on similar disputes very often differ.

Exist two positions of ships, based on which the authorities make certain court decisions on disputes about the legality of state registration in the event that the death of the donor has occurred before the moment when the transfer of rights must be registered.

First point of view

The first position or point of view of the courts is based on the interpretation of the law by the Supreme Court. According to the law (clause 7 of article 16 of the Federal Law "On state registration of rights to real estate and transactions with it"), deal is registered from the moment of making the corresponding entry on the transaction or on the right in the register. Only in this case legal consequences occur.

Thus, the courts, adhering to this point of view, understand the legal transfer of the right to property under a donation agreement in the presence of the following circumstances:

• the presence of a duly executed donation agreement (reflecting the will of the donor to donate real estate);
• the presence of bilateral actions of the parties to the transaction aimed at registering the transfer of ownership of real estate (when the parties have submitted applications and documents for state registration);
• the presence of the entered information about the transaction or about the right in the Unified State Register of Rights.

Information

The absence of an entry in the Unified State Register of Rights entails the recognition of the donation contract by the courts as not concluded. And the property, which should have passed into the ownership of the donee, in the event of the death of the donor, pass into the hereditary mass.

Second point of view

The second position or the point of view of the courts is the opposite of the first. The courts consider that if the documents were submitted for state registration by the parties, however, before the entry was made in the Unified State Register of Rights, the donor died, this cannot serve as a basis to recognize the donation contract as not concluded.

Explaining their position, the courts indicate that the donor expressed his will and reflected it in the contract, did not take any action to return the property, but, on the contrary, took actions aimed at alienating the ownership of this property by submitting an application for state registration.

Thus, the courts, which adhere to this point of view, consider the donation agreement concluded when the parties fulfill the following circumstances:

• the presence of a donation agreement, which is duly executed;
• availability of submitted documents for state registration.

Accounting for the spouses' right to a share in property

Donation proceedings often arise when the opinion of one of the spouses ( no consent received spouse).

The Family Code (Clause 1 of Art. 35) provides for the use and disposal of property that is in the common property of the spouses, only according to their joint agreement... Such a rule obliges both spouses to obtain consent from each other to take any action in relation to common real estate or other property that requires registration. Therefore, if any of them expresses a desire to donate such property, then it is necessary to obtain the written, notarized consent of the second spouse.

Attention

If this transaction is concluded without obtaining consent, then it can be declared invalid in court. However, the second spouse, who did not consent to the transaction, will have to submit evidence to the court that the disputed property is the common property of the spouses.

Citizen "C" filed a statement of claim to citizens "A" and "K" for the recognition of the contract of donation of an apartment, concluded between "A" and "K", invalid. Having substantiated the stated requirements by the fact that during the period of conclusion between the defendants (citizens "A" and "K") a donation agreement, the plaintiff was in a registered marriage with one of the defendants, who acted as a donor.

The apartment transferred under the contract of donation to citizen "K" is the joint property of the spouses (the plaintiff - citizen "C" and the defendant - citizen "A"), since it was acquired during the marriage. Namely, the defendant - citizen "A", joined a housing construction organization and he was issued a warrant for the disputed apartment. The plaintiff is also included in the order. Both spouses are registered in the disputed apartment.

In 2013, the marriage between the spouses was dissolved, but the division of the property was not carried out. The defendant - citizen "A", registered the ownership of the disputed apartment and in 2014 transferred the apartment under a donation agreement to the defendant - citizen "K".

According toclause 3 of Art. 253 of the Civil Code of the Russian Federation , a transaction that was concluded by one of the participants in joint ownership by order of such property may be recognized by the court as invalid at the request of the other participants in the joint property, if the party that entered into the transaction did not have the necessary powers.

The court found that at the conclusion of the transaction, the defendant - citizen "K", who was the donee in the controversial transaction, knew that the donor did not have the consent of the spouse to carry out such a transaction. Under these circumstances, the court considers that the donee acted in bad faith.

The court's decision in this case: to satisfy the claim. The donation agreement in the part of the transfer of ownership to "K" shall be declared invalid and the consequences of the invalidity of the agreement shall be applied in this part.

Conclusion of a donation contract by a donor who was in a deranged state

Judicial practice is rich in disputes regarding the recognition of the donation agreement as invalid, due to the fact that the donor was in insane... However, it is quite difficult to challenge the transaction on such grounds if the donor has never been registered in a neuropsychiatric dispensary.

Important

In order to invalidate the donation, it is necessary to submit to the court the appropriate evidence (certificates and medical reports, testimony, facts, etc.) of the donor's insanity.

Sometimes it is necessary to prove that the donor was in an inadequate state only at the time of the conclusion of the donation, and in general, does not have any mental disorders. For example, he was in a state of drug or alcohol intoxication or under the influence of drugs or other drugs, etc. In this case, almost the only evidence can be witness's testimonies.

In judicial practice, there are situations when the proof of the donor's insanity on the day of the transaction is administrative record drawn up by a police officer. It reflects that at a given moment in time, the donor, under the influence of strong alcoholic intoxication, has committed an administrative offense.

It would seem that such a negative circumstance, however, subsequently helped the court to make the right decision, and the donor - to return the property.

Conclusion of a donation agreement in order to cover up another transaction

In accordance with Art. 170 of the Civil Code of the Russian Federation, the court may recognize the donation contract as invalid if the donation contract was drawn up in order to cover up another transaction. In this case, it will be necessary to prove that the transaction was fictitious.

Evidence fictitiousness can serve:

• receipts for receiving funds in return for donation;
• testimony of persons who were not involved in the transaction, but somehow knew or possessed such information;
• other evidence.

Additionally

The litigation takes place on the initiative of both the interested parties and the parties to the transaction themselves. With all necessary condition and evidence, the court recognizes the transaction as sham or sham and applies the consequences of invalid transactions.

Conclusion

Donation is a voluntary transaction, as a result of which one party (the donee), in fact, is enriched, and the other (the donor) loses the right to the property itself, which is donated. Therefore, situations often arise when relatives or family members of the donor, and sometimes the donor himself, are unhappy with such a transaction, which is the subject of litigation.

However, controversial situations arise not only between the participants in the proceedings, but also when the courts apply legislative and regulatory acts when making a decision on such disputes. The reason for this is the ambiguous interpretation of the legislation.

At the same time, the fundamental importance for the adoption of a decision by the court is the availability of indisputable evidence that the parties present in support of their arguments.

Question answer

My grandfather issued a deed to a stranger. The grandfather is registered due to a mental disorder. What is needed to invalidate a deed of gift and how to prove it in court?

In order to recognize the donation agreement as invalid, it is necessary to draw up a claim, collect evidence and present everything to the court.

In the claim, you must indicate the names of the parties to the contract and addresses, the subject of the dispute, describe the situation and state your requirements, as well as attach a copy of the contract (if any), certificates and conclusions of medical institutions about the state of health of your grandfather, etc.

In a judicial proceeding, if the court finds that there is not enough evidence, it is necessary to file a motion to demand such evidence or to call witnesses, and you can also ask the court to appoint a forensic psychiatric examination.

Can my wife invalidate the gift agreement if the gift deed for the apartment was signed without her consent?

Yes, such transactions are court, in accordance with Art. 253 of the Civil Code of the Russian Federation, is recognized as invalid, but if it is proved that the property is the common property of the spouses.