Contract on gift of real estate

CONTRACT ON GIFT OF REAL ESTATE

General about the gift contract

The gift contract is regulated in the Obligatory Relationships Act (Official Gazette 35/05, 41/08, 125/11, 78/15, 29/18, 126/21, 114/22, 156/22, 155/23) as a bilaterally binding contract that is created when the donor undertakes to leave a thing or property right to the donee without countermeasures, and the donee accepts it.

Movable and immovable things or rights can be donated, and debt forgiveness or debt payment with the debtor’s consent are also considered donations. The gift should be voluntary, free of charge, without any coercion, otherwise the gift contract is void. Therefore, the assumption for a gift is the donor’s will to give something and the donee’s will to receive something.

Form of gift contract

If the donor wishes to gift movable property to the donee, the gift contract in paper form is not required if the movable property is donated immediately. In this case, the donee confirms the donor’s will by his silence.

However, as in practice it is often the subject of gifts of real estate, a written form is expressly prescribed for the gift contract for real estate. If it were a gift of real estate without real delivery, such a gift contract must necessarily be concluded in the form of a notarial deed or a certified (solemized) private document. This means that the gift contract without handing over the thing to the immediate possession of the donee must be concluded as an enforceable document in which a specific obligation to act is determined.

It is important to note that the lack of a prescribed written form of the contract on the gift of real estate leads to nullity, otherwise it would not produce legal effects, so the registration of ownership of such real estate in the land registers would be null and void.

Conclusion of a gift contract in the form of a notarial deed or certified (solemized) private document

A gift contract in which real estate is donated without actual delivery must be concluded in the form of a notarial deed or a certified (solemized) private document. The gift contract as a notarial deed contains the donor’s declaration that on the basis of this deed, for the purpose of fulfilling the obligation, and after the due date of the obligation, forced execution can be carried out immediately.