Gifting a share in an apartment: how to arrange the transaction in Kazakhstan

Owners who want to transfer part of their housing to a close person without a sale and without consideration most often come with a question about gifting a share in an apartment. The situations vary: some allocate a share to their children, some formalise relations between spouses, some transfer part of an apartment to their parents. At the same time, many believe that it is enough to sign a contract between themselves, and only at the registration stage do they learn about the requirements of the law. It is necessary to work out which form of transaction applies in a particular case before signing the documents.

The article considers when it is worth contacting a notary, the procedure for drawing up a contract in simple written form, the list of documents and the sequence of registering the transfer of title with the State Corporation Government for Citizens. Particular attention is paid to typical mistakes that lead to the transaction being challenged later, and to the grounds for declaring a gift invalid. The material is intended for an owner who is going through this procedure for the first time and wants to act within the Civil Code of the Republic of Kazakhstan.

Gifting a share in an apartment: who needs it and why

Gifting a share in an apartment is a transaction by which the owner of a share transfers it to another person free of charge. Under the Civil Code of the Republic of Kazakhstan, a gift contract does not involve consideration: the donor does not receive money, property or services in return. From the moment the transfer of title is registered, the donee becomes the owner of the share on equal terms with the other participants in common shared ownership.

The donor may be any capable owner of a share, including a spouse with the consent of the other spouse, if the share forms part of common property. The donee may be any individual or legal entity, as well as the state. The consent of the other co-owners to the gift of a share is not required: the new owner takes the place of the previous one in the already existing shared ownership.

• Gratuitousness — the donor does not receive payment or other consideration.
• Freedom to choose the donee — the law does not limit the circle of persons to whom a share may be gifted.
• Transfer of title — the new owner acquires the share after state registration.
• Preservation of the shared ownership regime — the other co-owners remain participants in the common property.
• Governed by the Civil Code of the Republic of Kazakhstan — the general rules on gift and common shared ownership.

When a notary is required for gifting a share in an apartment

A gift agreement for a share in an apartment is concluded in written form, and the transfer of ownership is subject to state registration with the State Corporation Government for Citizens. In practice, such agreements are most often certified by a notary: he checks the donor's title, the spouse's consent and encumbrances, and submits the information for registration himself. Whether a notarial form is required in a specific situation should be clarified before signing: the registering authority will not accept a document whose form does not comply with the law.

When the donor disposes of only part of the property, the interests of the other co-owners are affected, so the verification of documents deserves particular attention. That is why the question of a notary for gifting a share in an apartment arises almost always, regardless of to whom the share is transferred — to an outsider or to one of the co-owners.

• The parties agree on the subject of the gift: they state the apartment, the size of the share and its description.
• The donor confirms ownership of the share with a title document.
• A gift agreement for the share is prepared; in the notarial form it is certified by a notary.
• The agreement is submitted for state registration of the transfer of title to the State Corporation Government for Citizens.
• After registration, the donee receives a document confirming his right to the share.

Gifting a share in an apartment without a notary: grounds and risks

A gift agreement is governed by the Civil Code of the Republic of Kazakhstan. Notarial certification is mandatory where required by law or by agreement of the parties; in other cases, a gift agreement for immovable property is concluded in written form and is subject to state registration.

If the parties execute the agreement without a notary, the written form of the transaction and state registration of the transfer of title in the Legal Cadastre are mandatory. The parties draw up the agreement, sign it and submit the documents through the Public Service Centre. Before registration, the donee's right to the share does not arise, and the transaction is considered unconcluded.

• Failure to comply with the notarial form where it is mandatory renders the agreement void.
• The absence of state registration of the transfer of title means that the donee has not become the owner.
• Gifting a share from the common property of spouses without the consent of the other spouse may be challenged in court.
• A transaction may be challenged on the ground of a sham or disguised gift, for example where an attempt is made to conceal a sale.
• The donor's heirs are entitled to challenge the transaction if, at the time of the gift, he did not understand the significance of his actions.

Gift agreement for a share in an apartment without a notary: structure and content

A gift agreement for a share in an apartment without a notary is drawn up in simple written form unless the law requires mandatory certification. The text must precisely identify the parties: surname, name, patronymic, IIN, details of the identity document, residential address. The object of the gift is described so that it cannot be confused with another: address, area, cadastral number, size of the share being disposed of as a simple fraction.

The mandatory terms include the subject, gratuitousness and transfer of the property to the donee. Gratuitousness means the absence of any counter-performance: money, services, other property. The parties may state that the donor retains the right to live in the apartment for a certain period, and that the donee accepts the share with encumbrances of which he is aware.

• Full details of the donor and the donee: full name, IIN, identity document details, addresses.
• Precise description of the share: apartment address, area, cadastral number, size of the share as a fraction.
• The condition of gratuitousness: absence of monetary or other counter-provision.
• A clause preserving the right of residence of the donor or third parties.
• Confirmation of the absence of encumbrances, arrests and debts on the share.
• A reference to the state registration of the transfer of right with the State Corporation "Government for Citizens".

Gift agreement for a share in an apartment without a notary: common mistakes

Gift agreements are governed by the Civil Code of the Republic of Kazakhstan. If the parties prepare the agreement themselves, without a notary, they more often make mistakes that cause registration to be suspended or the transaction to be challenged.

Shares are not allocated in kind arbitrarily: the donor transfers the scope of rights confirmed by title documents and information from the Legal Cadastre. If the share is described "approximately" or does not match the entry in the Legal Cadastre, the registering authority will refuse, and an interested participant is entitled to challenge the transaction.

• Incorrect description of the subject matter: the share does not match the data of the Legal Cadastre or is allocated in kind without the consent of all owners.
• Absence of consent of the donor's spouse where the share forms part of the common property acquired in marriage.
• A sham transaction: a gift agreement conceals the sale of a share in circumvention of the pre-emptive right of purchase of the other participants.
• An incomplete set of title documents and absence of information on encumbrances on the share.
• A refusal or consent not certified by a notary where the law or a previous agreement requires that form.
• Signing of the agreement by a person with limited legal capacity without the consent of a guardian, or under a forged power of attorney — grounds for declaring the transaction invalid.

A gift agreement for a share is always a question not only of form but also of confirming intent: if the donor acts voluntarily and knowingly, and the documents reflect the actual circumstances, the transaction is difficult to challenge in the future.

Gifting a share in a house without a notary: specifics of the object

Gifting a share in a house differs from gifting a share in an apartment by the composition of the object: a house is inseparably linked to the land plot. The subject of the transaction becomes the share in the building and the corresponding share in the right to the land. A share in a house cannot be alienated without a share in the plot.

The set of documents is broader than for an apartment: title documents for the house and for the land plot, identification details of the parties, technical description of the building. If the plot is leased or privately owned, this is reflected separately in the agreement. The information is verified through the Legal Cadastre.

Notarial gifting of a share in an apartment: how it proceeds at a notary

When a gift agreement for a share in an apartment is certified by a notary, the notary does not merely record signatures but verifies the lawfulness of the transaction and the rights of the parties. Gift agreements are governed by the Civil Code of the Republic of Kazakhstan.

Before certification, the notary examines the title documents for the apartment and confirms that the donor owns the share and is entitled to dispose of it. Information on registered rights and encumbrances, and the absence of arrests and prohibitions, is checked. The identity of the donor and the donee, their legal capacity and the voluntariness of their expression of will are established. If the apartment was acquired in marriage, the notary checks the regime of the spouses' common property.

• identity document of the donor and the donee
• title document for the apartment and the share
• information on registered rights and encumbrances
• consent of the donor's spouse, if the share is in common property
• document on marital status and the composition of the participants
• document confirming payment of the fee for state registration

Documents for gifting a share in an apartment: full list

The list of documents for gifting a share in an apartment depends on the form of the transaction and the parties involved. The basic set confirms the identities of the parties, their rights to the property and the absence of encumbrances. Documents on marital status and the spouse's consent are additionally required if the share forms part of jointly owned property.

With notarial certification, the list is broader: the notary verifies the legal capacity of the parties and the ownership of the share, and explains the consequences of the transaction. The draft agreement and documents confirming the basis on which the donor acquired the right are added to the package. The notary submits the information for registration of the transfer of right himself.

Without notarial certification, the documents are submitted directly. The transfer of right to immovable property is registered with the State Corporation Government for Citizens. The application is submitted by the parties to the agreement in person or through a representative acting under a notarised power of attorney.

• identity document of the donor and the donee, and for foreign nationals — a document confirming lawful stay;
• title document for the share: a sale and purchase agreement, a certificate of right to inheritance, a privatisation agreement or another document;
• document confirming registration of ownership of the share, stating the property and the size of the share;
• technical passport or another document containing the characteristics of the apartment;
• consent of the donor's spouse if the share was acquired during the marriage, or a document on a separate property regime;
• document confirming payment of the fee for state registration of the transfer of right.

The list may be clarified depending on the type of right and the requirements of the registering authority.

Comparison: gifting a share in an apartment with and without a notary

Gifting a share is governed by the Civil Code of the Republic of Kazakhstan: the contract is concluded in writing, and notarial certification is mandatory where required by law or by agreement of the parties. The difference between the options lies in who checks the documents and is responsible for the correctness of the text.

The notary checks the title documents, spousal consent and encumbrances, certifies the contract, explains the consequences and submits the information to the Legal Cadastre. Without a notary, the contract is prepared independently, but registration of the transfer of right goes through the Public Service Centre or the Legal Cadastre; errors and omission of mandatory terms lead to refusal of registration.

• Notarial certification is mandatory if required by law or by agreement of the parties.
• The requirements for the form of the contract should be clarified before signing — an error leads to refusal of registration.
• The notary checks the legal capacity of the participants, spousal consent and the absence of arrests.
• Without a notary, the parties themselves are responsible for the completeness and legality of the contract.
• Registration of the transfer of right with the State Corporation "Government for Citizens" is required regardless of the form.
• A notarial contract is harder to challenge because of the checks carried out.

The Civil Code of the Republic of Kazakhstan governs a gift agreement regardless of the form chosen.

Registration of a gift of a share in an apartment: where and in what order

The transfer of a share in the ownership right to an apartment under a gift agreement is subject to state registration with the State Corporation "Government for Citizens". Without registration, the donee does not become the owner of the share and cannot dispose of it.

The application is submitted by the parties to the agreement through the public service centre at the location of the apartment or electronically through the e-government portal. The gift agreement in the form required by law, identity documents of the parties and title documents for the apartment are attached. Registration is confirmed by an entry in the Legal Cadastre and an extract.

• application of the parties for state registration of the transfer of the share
• gift agreement in written form
• identity documents of the donor and the donee
• title documents for the apartment
• consent of the donor's spouse, if the share is in joint property
• document confirming payment of the fee for state registration

Challenging a gift of a share in an apartment: when the transaction may be annulled

A gift agreement is governed by the Civil Code of the Republic of Kazakhstan. The transaction may be declared invalid if the requirements of the law or the rights of third parties are violated. Co-owners, heirs, the donor's creditors and the donor himself may challenge a gift in the cases established by law. The outcome depends on the basis of the claim and the evidence of the violation.

If the law or an agreement of the parties requires notarial certification and the contract has not undergone it, the transaction is invalid. An oral gift agreement for immovable property does not produce legal consequences. The parties are returned to their original position, and the entry on the transfer of the right is subject to cancellation.

• Disguising the sale of a share as a gift agreement to circumvent the pre-emptive right of co-owners to purchase
• Failure to comply with the form of the contract where notarisation is mandatory by law or by agreement of the parties
• A sham transaction concluded without the intention to create legal consequences
• A simulated transaction concealing a sale or other transfer of property
• Infringement of the rights of minor co-owners
• The dispute is heard by the court at the location of the immovable property, with the possibility of appeal