A grandmother has an apartment. She wants the housing to go to her granddaughter in the future and proposes to formalise a deed of gift. The granddaughter agrees, but in the conversation an important detail emerges: the grandmother intends to continue deciding for herself whether to live in this apartment, rent it out or, if necessary, sell it. Both are sure that a deed of gift will allow this arrangement to be preserved.

Before choosing a document, they should answer one question: who should be the owner of the apartment during the grandmother’s lifetime?

In the case of a gift, the right of ownership of real estate, as a general rule, passes to the person who accepts the gift from the moment of state registration. If the right is registered in the granddaughter’s name, the apartment already belongs to her. Even if the grandmother continues to live there, keeps the keys and pays the utility bills, these circumstances in themselves do not preserve her ownership right. The possibility of further residence must be discussed separately, before formalising the transaction.

With a will, everything is arranged differently. The grandmother can name the granddaughter in the will and at the same time remain the owner of the apartment. During her lifetime she has the right to dispose of the housing, and the will can be changed or cancelled. The question of who will receive the property will be decided after her death according to the rules of inheritance. In particular, in cases provided for by law, the right to a compulsory share in the inheritance is taken into account.

And what if a deed of gift is formalised now, but it is stated that the apartment will pass to the granddaughter after the grandmother’s death? Such an option does not replace a will. Clause 3 of Article 506 of the Civil Code of the Republic of Kazakhstan expressly recognises as void a contract that provides for the transfer of a gift after the death of the donor. If the owner wishes to dispose of the apartment precisely for this case, a will should be considered.

There is another question that is useful to discuss in advance: does the owner expect anything in return? In the case of a gift, the apartment is transferred free of charge. If an agreed price is to be paid for it, it is a sale and purchase. If each party transfers its property to the other — it is an exchange. If the owner intends to transfer the apartment in exchange for obligatory care and maintenance, a lifelong maintenance contract with dependency should be discussed with a notary. A family arrangement about help and an obligation that the parties wish to formalise by contract are different things.

Before formalising the documents, try to describe the desired result in your own words: “I want to transfer the apartment now”, “I want to keep it for myself and designate an heir”, or “I want to receive care and maintenance in exchange for the housing”. Come to the consultation with this formulation. This makes it easier to choose the document that corresponds to your goal and to understand in advance what rights each party will retain.

In the next issue — how to formalise the gift of real estate: what documents will be needed, when the spouse’s consent is required, and how to register the ownership right.

Saltanat KURMANBAYEVA, Lawyer of the Republican Notarial Chamber