Want to sell the house your parents gave you? In the case of real estate, a donation requires the signature of a notary. When drafting it, the donor can ask the notary to include some clauses that may prohibit the sale of the property transferred by donation. In certain cases, he even has the right to return the accommodation.
Give throughout your life
Donation consists in the fact that a person hands over all or part of his real estate during his lifetime while respecting the applicable rules (e.g. not touching the share that belongs to legal heirs, e.g. children). This decision, which requires notarization, is irrevocable.
It has several advantages. As with an inheritance, every 15 years there is a €100,000 reduction in property value per child and donor, allowing you to avoid tax on this amount.
The property will no longer be taxed at the time of inheritance. This means that the obligations and costs are borne by the parents, not the children as in the case of an inheritance.
A clause prohibiting the sale of real estate
A non-alienation clause (or “inalienability clause”) can be included in the gift agreement. It prohibits the person who receives the property as a gift from selling it. The house thus remains in the family heritage. If a purchase contract has been signed with the buyer, this may invalidate the sale.
To sell the property, you must obtain the consent of the donor, who then waives this clause.
Clauses on inalienability cannot last forever: according to the Civil Code, “they are valid only if they are temporary and justified by a serious and legitimate interest. Even in this case, the donee (the one who receives the property as a gift, editor’s note) may be legally entitled to dispose of the property if the interest that justified the clause has passed, or if a more important interest arises. »
The right to take back property in the event of the death of the beneficiary
A so-called “conventional reversion” clause, which can also be included in a gift deed, allows the donor to recover the donated property if his donee predeceases him, without children. It is also a way to keep good in the family.
Clause on reservation of right of usufruct in connection with donation for dismemberment
It is possible to decide on a donation when selling the property. Only the bare ownership (what we call “walls”) is transferred, while the usufruct (the enjoyment of the property) remains the property of the donor.
Thus, the recipient of the gift, who has only bare ownership, cannot sell the house without the consent of the donor. Upon the donor’s death, full ownership of the property passes to him.
A judicially revocable gift
Although the gift is irrevocable, it can be judicially annulled in three cases. The donor can apply for judicial annulment of the donation due to “non-payment of fees”. Donations may indeed be accompanied by the obligation of the donor to house, feed or even provide care. If the recipient does not fulfill his obligations, the donor can initiate legal proceedings to recover his property.
This is also the case when the donor donated property when he did not yet have a child. A subsequent birth or adoption may be grounds for legal restitution of property. For this to be valid, since 2007, the gift contract has to state this option.
The last case, the “cause of ingratitude”: for example, if the recipient tried to kill the donor or committed crimes against him…