In the complicated world of real estate transactions, selling a house received as a donation represents a unique challenge, full of legal, bureaucratic and often emotional issues. To make the situation even more complex, there are the constantly evolving regulations governing donations and inheritance succession.
These laws, although designed to protect the rights of legitimate heirs, often result in an obstacle for those who wish to sell an asset received as a gift.
We then explore the intricacies of this process, outlining the difficulties, possible solutions and key steps to selling a donated home without running into legal or financial problems.
Donation of real estate: the fundamental concepts
The donation of a property is regulated by article 769 of the Civil Code, which defines it as a contract through which one party, in a spirit of generosity, enriches another party by disposing of a right in his favor or assuming an obligation.
Article 769
DefinitionDonation is the contract by which, in a spirit of liberality, one party enriches the other, disposing of a right in favor of the latter or assuming an obligation towards the latter.
This operation must necessarily take place through a public deed drawn up by a notary, in the presence of all parties involved and at least two witnesses. Otherwise, the donation is considered void.
The figure of the donor (who makes the donation) and the donee (who receives it) thus enters into a legal relationship which can also involve real estate. In this context, the notary plays a crucial role, verifying the absence of mortgages, constraints or building abuses that could prejudice the donee.
Also important is the consideration of the laws on hereditary succession, which guarantee the so-called legitimate heirs a share of the inheritance, regardless of the will expressed by the deceased through a will or donation.
This aspect limits the donor's freedom to dispose of his assets, reserving a legitimate portion of the inheritance for the closest family members (spouse, children, ascendants and direct descendants), and potentially opening the way to disputes in the event that these rights are violated .
The challenges of selling donated homes
When it comes to selling a property received as a gift, problems can emerge quickly, rooted in the complexities of inheritance regulations. For example, if a house is gifted to a child during the donor's lifetime, and that child decides to sell it, he theoretically can do so.
However, upon the donor's death, other heirs may contest the sale, claiming that it deprived them of a legitimate claim to the inheritance. The situation becomes further complicated if the donee is not a legitimate heir, since he may find himself in possession of a property without having full ownership, unless the issues related to the legitimate heir are resolved.
This dynamic makes the sale of a donated property particularly complex, as buyers may lack the necessary guarantees to proceed with the transaction safely. Even lenders are often reluctant to provide mortgages for the purchase of these properties, fearing the possible legal implications. As a result, the sale can turn into a long and tortuous legal process, with no certainty about the final result.
The risk of challenges from creditors must also be considered, especially if the donation was made with the intention of remove assets from possible seizures. Finally, a further complication can arise from the sale of a donated property within five years of purchase, with the potential loss of the benefits provided for the purchase of a first home.
Strategies for the smooth sale of donated properties
The sale of a property received as a donation can take place without problems if preventive strategies are adopted and the current regulations are well understood.
A first approach consists in seeking an amicable agreement with the legitimate heirs, perhaps obtaining a written declaration of waiver to the house in question, which, although not mandatory, offers greater security if drawn up with a notary.
This step, however, may not always be feasible, especially if the donee is not a direct heir.
An alternative is represented by the resolution of the donation, which allows the property to be returned to the donor and then proceed with a traditional sale. This solution, although legally complex and a source of legal debate, may offer a way out in certain cases.
Furthermore, patience plays a crucial role: after 20 years from the transcription of the donation deed or 10 years from the death of the donor, the possibilities of disputes by the heirs are significantly reduced, thanks to law 80 of 2005.
To avoid tax problems, especially in relation to incentives for purchasing a first home, it is advisable to wait at least 5 years before proceeding with the sale or, alternatively, regularize the situation with the tax agency. It is essential, in any case, to carefully follow the legal procedure, relying on a competent notary who can guide both in the donation and sale phases, to ensure that all regulations are respected and to minimize legal risks.
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The sale of a donated property ends with a normal deed of sale, during which it is essential to inform the buyer about the origin of the goods to prevent any future disputes. A qualified real estate agent can facilitate this process, ensuring that all parties are adequately informed and that the transaction occurs in compliance with the complex regulations governing donations.