The transfer of property: a sample contract. Property transfer: wiring

Operations with real estate and other property in business, in the relations between state, municipal bodies and natural persons may imply gratuitous transfer of relevant objects and values. How are these procedures regulated in Russia?

Subjects of transfer of property

To which sphere of civil relations is it legitimate to attribute such a phenomenon as gratuitous transfer of property? Two common interpretations are appropriate here. In a broad sense, a gratuitous transfer of property can be understood as granting a certain material value to a subject with any status - natural persons, legal entities - in favor of another, whose legal characteristics also do not matter. However, in the practice of Russian jurisprudence, the phrase in question, as a rule, implies relations at the level of organizations.

The transfer of property in this connection is a procedure organized within the framework of the norms established by law, which mainly regulate the relationship between legal entities. Also, some experts single out the interaction with the participation of budget institutions in a separate category.

Who can transfer property free of charge?

According to some lawyers, in general, the transfer of property from one organization to another falls under the action, treated as a "gift". If the corresponding legal entity is a commercial firm, it means that the restrictions provided for in Article 575 of the Civil Code of the Russian Federation apply to it. It says that if the amount of property is more than 3 thousand rubles, then it is impossible to transfer it as a gift from one commercial organization to another.

A company that conducts business can, at the same time, take property free of charge from natural persons, non-profit associations, as well as authorities. Possible gratuitous transfer of property from the founder in favor of the company. In this case, its relevant activity will be carried out on the rights of physical persons. At the same time, the free transfer of property from the founder will not be taxed, provided that the person owns no more than 50% of the company's authorized capital.

Transfer or rent?

Among the discussion points concerning the problems of regulation of property relations in the civil law of Russia is the correctness of the use of the term in question. The fact is that such a phenomenon as gratuitous transfer of property is very similar to the provision of valuables for free rent. But this is not the same thing at all.

If it is a question of free rent, then it is more correct to use the phrase "transfer of property for free use". In this case, ownership rights to the transferred value remain with its original owner. If we are talking about as such a gift, then we have the right to use the term precisely in the sound in which we are now considering it - that is, to call the procedure a gratuitous transfer of property.

Rent de jure, transfer de facto

But there is one nuance here. The fact is that the actual content of relations between citizens or organizations in the aspect of transfer of property in both cases may be the same. It is quite possible to assume that one entity will pass on the value of another as a free lease with a very long time, without asking it back afterwards. Formally, the original owner of the property does not lose ownership, but de facto its manager becomes another person. This nuance allows many companies to circumvent the limit of 3 thousand rubles, set by the 575th article, which we noted above. Entrepreneurs unofficially agree that they will sign a contract of free rent, but in reality - one business transfers the other property to another in actual possession.

However, as noted by lawyers, a free transfer of property is a procedure that requires proper documentation. The agreement between the organizations should, in particular, clearly state: what value is transferred, what are its characteristics and condition. If there is no such data in the document, then the deal, as lawyers say, is considered invalid.

Also, we note that some restrictions related to the procedure for the provision of property in rent with the participation of commercial organizations, there is still. For example, a company - AO or LLC, can not provide value to the free use of its founders or persons belonging to the governing body.

Transfer or gift?

We noted above that the free transfer of property to property is generally identified with the donation procedure. In this connection, certain types of subjects of civil relations may under certain conditions be limited in the rights to transfer or receive property - as, for example, commercial organizations, which have a limit of 3 thousand rubles in carrying out such procedures. Many firms circumvent this restriction, taking the opportunity to provide (receive) valuables to free rent, negotiating with other organizations. However, there is one more legal mechanism in which interaction between businesses in the aspect of gratuitous transfer of property will not be qualified as a gift.

Its application is possible, if it is a question of mutual relations of the companies and their affiliated structures. The fact is that the gratuitous transfer of property to the ownership of the parent structure in favor of the subsidiary firm, as a rule, is not qualified as a beneficiary. This procedure is recognized as part of the management of tangible assets related to business. Thus, if a contract of gratuitous transfer of property is concluded between the parent structure of the firm and its subsidiary, it is not qualified as a donation transaction, despite the fact that such agreements, as some lawyers say, are not provided for by law. But, at the same time, there is no contradiction to the norms of the Civil Code of the Russian Federation.

However, other legal options, in which the transfer of property in gratuitous order can somehow "disguise", lawyers do not distinguish. Some businesses are trying to find loopholes in the law. For example, there is such an option: entrepreneurs formulate the terms of transactions, intending to hide the main purpose characteristic of the gift - the satisfaction of the specific interests that the gifted party has (and the absence thereof, in turn, from the former owner of the property). In practice, this often means that the contract of gratuitous transfer of property is accompanied by another same source of law, but the parties to the transaction in it change places and the donor receives in exchange other property. It turns out, in this way, that the gifted person did not satisfy his interests, but fulfilled the terms of the contract. However, the drafting of such contracts is considered by lawyers as a mistake of businesses. In the event that the gift process is accompanied by counter-deliveries, the corresponding transaction, if it follows the norms set forth in Article 572 of the Civil Code of the Russian Federation, is recognized as invalid.

Differences between the two phenomena considered can be observed on the basis of the structure of contracts reflecting the corresponding type of civil relations.

Free of charge agreement: features

The contract of gratuitous transfer of property (a sample of the structure of which we will now study) to free use is governed by the provisions of the 36th chapter of the Civil Code of the Russian Federation, in particular, Article 689 of the Code. The parties to the relevant agreement are referred to as the "lender" and "loan recipient". The second is obliged under the contract to return the first property in the state in which it received, taking into account the likely wear and tear (unless otherwise specified in the agreement).

It is recommended that the contract be entered into in a simple written form. The types of property that can be transferred under this agreement are very different: real estate, land, equipment, transportation and other values that have natural features.

What should be contained in the contract of gratuitous transfer of property under consideration, the sample of the structure of which we are studying? The most important criterion is the inclusion of the description of the subject matter of the agreement. If the property possesses documents that characterize its ownership by ownership, sources of a technical nature, then information from them should also be used when drafting the contract. The text of the agreement should also describe the actual state of values, the degree of wear and tear, possible shortcomings in appearance, and so on. The same must also include the act of transferring gratuitous property to free use, which lawyers also recommend to make for legalizing the appropriate type of civil relations.

Separately, we should talk about the features of transferring to use real estate.

Real estate - for use

The transfer of immovable property to free use is subject to state registration. These are the requirements of Article 131 of the Civil Code of the Russian Federation. At the same time, it will be necessary to pay the relevant state fee for the registration services of the competent departments. However, if the term of the contract is less than a year, then it is not necessary to perform the specified procedures. Therefore, in practice, this rule, as noted by lawyers, is used quite rarely: organizations are easier, from time to time, to renew the contract.

According to the gift agreement, one party (the donor) grants or undertakes to transfer the thing to the other party (the donee) to the property or the property right (claim) to itself or to a third party, or releases or undertakes to release it from the property obligation to itself or to a third party (Item 572 GK).

Let us now consider how the property is transferred to the property free of charge. As we noted above, from a legal point of view, this procedure is identical to donation. Therefore, the contract will be drawn up of the appropriate type.

Gift contract: features

It is interesting that the legislation of the Russian Federation allows for the "oral" conclusion of a gift agreement - but only if it does not refer to the cases set forth in paragraphs 2 and 4 of Article 574 of the Civil Code of the Russian Federation. The transaction is considered complete when the person, the former owner, gives the value, or title documents to it, to another new owner. However, if the amount of property - more than 3 thousand rubles, then to conclude a gift agreement you need in writing. In this case, there may be suspensive conditions in its structure. For example, the promise of a gift in connection with such and such a holiday.

The contract in question involves a deal, both of which are obligatory. The donor must transfer the property, and the gifted, in turn - accept it. Also, the agreement may provide for other obligations for the new owner. For example, a donor may conclude an agreement on the condition that the transferred property will be used strictly for a specific purpose. Or, for example, the gifted will take upon himself the obligation to treat the received thing carefully.

Municipal property

There is such a thing as gratuitous transfer of municipal property. What are its features? This kind of procedure, as noted in a number of legal sources, can be implemented in order to solve problems of a social or charitable orientation. The transfer of municipal property can be carried out in favor of individuals or legal entities on the basis of an order of the institution, or, in agreement with the authority of the municipality.

If we are talking about the transfer of real estate, then we allow only the second option. At the same time, it is possible to transfer property to free use. However, in this case, the lender, who signs the contract of gratuitous transfer of municipal property to free use, can only be the municipality. Regardless of whether the property is real, or other assets.

Federal property

Let us also consider how a free transfer of federal property is carried out. This procedure can have different directions. That is, the property can be transferred from federal ownership to the benefit of the subject or municipality, as well as vice versa.

If gratuitous transfer of federal property is carried out from the ownership of the entity in favor of the Russian Federation, then the corresponding procedure is usually carried out in accordance with the regulations of regional governments that reflect the implementation of Federal Law No.122 of August 22, 2004, as far as the transfer of property.

If there is a reverse procedure - the transfer of objects into the ownership of the region, then, as a rule, legal acts adopted at the entity level that regulate the procedure for the adoption of federal property are used. If the region proposes to transfer objects to municipalities, then the main source of law is also the acts adopted at the entity level - but only those that regulate relations with local government bodies. The reverse procedure, as a rule, is carried out on the basis of normative acts that consider the aspect of delineation of powers between regional authorities and municipalities.

At the same time, as lawyers note, regional laws, the norms of which regulate the free transfer of state property, are very similar. In addition, at the level of wording of relevant legal acts, it is possible to observe a certain uniformity of norms with those that regulate relations at the municipal level.

Relationships between budget institutions

An option is possible, in which a free transfer of property to a budgetary institution is to be carried out. What are the rules of the law for this type of legal relationship? First of all, we note that the institution has two possibilities to receive property free of charge: as a gift from individuals or organizations that are not part of the state financial and distribution system, or through transfer from other budget organizations. Let's consider features of each of variants.

In the budget - from individuals and legal entities

If gratuitous transfer of property to a budgetary institution is carried out under a gift contract, then one of the parties to the agreement may be, therefore, a natural or legal person, the status of the subject of transfer of values does not matter. The main source of law governing the relations between these types of entities under the relevant agreements is the 32nd chapter of the Civil Code of the Russian Federation.

In addition, the procedure in question is also regulated by accounting legislation. Therefore, an important aspect of the process is when on behalf of natural persons or organizations in favor of a budgetary institution a gratuitous transfer of property - posting is performed. They must be correct. Let's look at some examples that reveal the nuances of this procedure.

To the budget from individuals and organizations: posting

Suppose that the budgetary structure received a gift of some real estate property from a commercial organization. In this case, she must fix this procedure with the following double entry:

- debit: 2 101 02 310 (this is an "Increase in the cost of non-residential premises");

- Credit: 2 401 01 180 (this is "Other income").

Also in the accounting documentation it is necessary to reflect the market value of the received real estate. To this end, experts recommend using public information in official sources, Rosstat data, announcements of free sale of similar types of property, and the services of independent appraisers.

One budget to another

The second option, in which it is possible to receive property free of charge by a budgetary institution, is the transfer of values from another organization with a similar status. This procedure can be implemented:

- between institutions that are subordinate to the general manager;

- between organizations reporting to different head structures, but within the budget at the same level;

- between institutions operating at different levels of the budget;

Note that in this case it is also necessary that after the free transfer of property was carried out, the wiring was fixed correctly.

If the values are transferred according to the first scenario - between institutions reporting to the same manager, then it is necessary to reflect in the accounting department the following double entry (on the same example with real estate):

- debit: 0 101 02 310 (that is, "Increase in the cost of non-residential premises");

- Credit: 0 304 04 310 (this is "Intra-departmental settlements").

Under the second scenario, the debit is the same. But the loan is different: 0 401 01 180 (that is, "Other income"). In the third scenario, the debit is again the same. The loan is again different: 0 104 10 410 (or "Income from the proceeds of other budgets").