I inherited 1/6 of a one-room apartment - what to do with it?

Question: The apartment was privatized more than 10 years ago for three people: mother, father and me. Today, relations with parents have deteriorated due to the fact that they drink. I live separately from them. I want to sell my share of housing. As much as possible? Will there be any obstacles from the co-owners during the sale?

Answer: If housing is privatized for three people, then each is entitled to one third. Selling your part is quite possible. However, it is necessary to comply with the rule of first refusal : initially offer to buy out the share to the co-owners, and only if none of them wants to do this, you can safely sell it to an outsider.

In addition, you need to carefully study the documents for the apartment. If the object is privatized into shared ownership, then there should be no difficulties in selling 1/3 of the part. If the apartment belongs to family members under the right of joint ownership, then before the sale it is necessary to allocate the shares of each owner.

How to divide an apartment into shares

In accordance with Art. 252 of the Civil Code of the Russian Federation, the owner of real estate can allocate his share from the common property. The allocation of a share can be real (dividing a separate room into one or several residents with the right to use the common area) or ideal. The ideal allocation of a share is carried out only according to documents and is done solely so that you can fully manage your property.

It is almost impossible to allocate a share in an apartment in kind. It is unlikely that the owners will be able to make a separate entrance and provide personal access to communications, but it is quite possible to award equal shares based on documents.

The best option in any case is to reach an agreement between all owners and have the agreement to determine the size of shares in the apartment certified by a notary. After certification of the agreement, it is necessary to register the rights with Rosreestr. If it is not possible to reach an agreement, then you need to go to court to determine the shares in the apartment.

Who can you sell your share of the apartment to?

If a co-owner of an apartment intends to sell his share, then the pre-emption rule must be followed. This requirement is contained in Art. 250 Civil Code of the Russian Federation. This provision provides that when selling a share, the owner must notify the other co-owners in writing about the upcoming transaction. It is necessary to indicate in the letter the terms of sale and price.

The co-owners have one month to think about it. If none of them wants to purchase part of the apartment, then the owner can sell it to any other person.

The rule of first refusal cannot be ignored. If you do not inform the co-owners about the sale of the share, the case may end in court. Co-owners can file a claim within three months to transfer the rights and obligations of buyers to them. In this case, the court will cancel the original transaction, and the primary buyer will lose the apartment.

Determination of shares in an apartment

In order to determine the share of each owner, it is necessary to establish the total area of ​​the apartment. As a rule, it consists not only of living rooms, but also of common areas. When dividing, certain factors must be taken into account:

1. Number of co-owners. The greater their number, the smaller share of the apartment they can count on.
2. The owners' shares are initially equal. If one of the co-owners wants to increase or decrease the size of his share, he must coordinate this with the other residents and draw up an agreement.
3. Separating a share in kind is impossible without creating an individual premises. The apartment must have a separate entrance and free access to all communications.
4. The area of ​​the allocated share should not be less than the established parameters. Otherwise, the owner is entitled to receive the cash equivalent.

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What to do if parents do not allow you to live in the apartment

The situation is somewhat different when parents do not allow them to live in the apartment. In this case, you should also analyze all the nuances thoroughly.

If a citizen has a share in the ownership of housing, then no one has the right to interfere with living in this apartment. To solve the problem, it is advisable to call the police or go to court.

You need to file a claim in court for moving in and causing obstacles to living. Since the court decision is a mandatory document for execution, family members will be required to stop the violations. Otherwise, moving into the apartment will be carried out with the help of the bailiff service.

If a citizen is not a co-owner, but is registered in the apartment, then it is impossible to simply evict him. There must be compelling reasons for this, namely serious violations of the rules of living in a residential area. Only then can owners initiate eviction proceedings through the court. Until there is a court decision that has entered into legal force, a person can live in the apartment or leave it voluntarily.

Minimum share in an apartment

The minimum share implies ownership of the smallest part in the apartment, while the legal rights of its owner are commensurate with the rights of the other share owners. The owner of the minimum share has the right to register and sell his part of the property. It should be noted that if the owner’s share in the apartment is less than the size established by law, he cannot sell it, but has the right to live there and be registered. Unfortunately, this right is used by apartment scammers. Having bought a minimum share in the apartment, they begin to live in it and create unbearable conditions for the remaining residents, thereby forcing them to sell their shares for next to nothing.

Recently, cases of such fraud have become more frequent, the peak was in 2017-2018, so now the State Duma is considering a bill limiting the minimum share in an apartment for sale. According to the law, the minimum share in an apartment for sale is calculated based on the total area of ​​the apartment according to the scale:

Joint ownership of an apartment

Property that is owned by two or more persons is common property (Article 244 of the Civil Code of the Russian Federation). There are two types of such property:

1. Equity;
2. Joint.

With shared ownership, each co-owner owns a certain part of the property (1/2, 1/3, etc.). This share can be sold, donated, or exchanged for any other property.

In case of joint ownership, the shares of the co-owners are not indicated. To alienate your part, you first need to isolate it. This is done by concluding an agreement to determine shares in joint property or by a court decision. And only after that you can carry out any legal transactions with your share.

If you do not allocate shares in the right of joint ownership, then transactions with this object must be carried out on behalf of all owners simultaneously.

As a rule, common property arises in the following cases:

• During privatization (housing is privatized for all family members registered in the apartment);
• When purchasing with common family funds;
• When donated to all family members;
• When receiving an inheritance in the name of several heirs.

The disposal of such an object is carried out by agreement of the owners. And if disagreements arise, then many issues related to property have to be resolved in court.

Law on the sale of shares in real estate

On January 2, 2021, amendments to Federal Law No. 218-FZ “On State Registration of Real Estate” came into force. The law separately regulates new rules for the sale of shared ownership.

The essence of the bill:

1. Allocating a share in an apartment is impossible if its size does not allow the owner to fully live in the allocated area. The law establishes an accounting minimum for living with all amenities. If the share does not reach this standard, it will not be possible to sell it;
2. Each region of the Russian Federation has its own norm for a separate share. Its footage, depending on the region, ranges from 8-15 square meters per participant. For Moscow, for example, the minimum norm is 10 sq.m.

The same rules apply for registration. Registration of a citizen is impossible if the size of his share does not reach the established norm. An exception is allowed for relatives of the owner, but this aspect has not yet been approved. The apartment can no longer be divided into an indefinite number of owners. It can be divided into shares as a percentage based on the minimum size of the share area.

Please note that the bill only provides for cases of sale of a share of property. If we are talking about the allocation of a share during privatization, inheritance or division of property during divorce, it does not apply to these situations. It should be noted that some provisions of this law will not enter into force until January 1, 2020.

From the point of view of law and reality

From a legal point of view, owners of a smaller share are protected much less. The fact is that Article 252 of the Civil Code of the Russian Federation

, provides for the possibility of owners of a larger share in court to recognize the share as insignificant and buy it back. But the law does not apply in the opposite direction: the owner of even the smallest share cannot force others to buy it back.

It would seem that the law provides for the right to sell a share to other persons, having first offered it to the co-owners in writing and given them a month to think about it. In this case, the price offered to other persons must not be lower than that offered to other owners.

But in fact, it is simply impossible to allocate 1/6 of the share in a one-room apartment in kind. Therefore, the amount for which it can actually be sold is extremely small. Our hero certainly would not have been able to solve his problems with the proceeds.

Calculation of tax on shares in an apartment

The tax rate is calculated on a scale based on parameters such as the cadastral value of the apartment, the area of ​​the owner's share and the established property tax rate.

Thus, if the cadastral value of an object:

• less than 300,000 rubles, the property tax rate is 0.1% of the cadastral value;
• from 300,000 to 500,000 rubles - up to 0.3%;
• over 500,000 rubles - up to 2%.

The rate also depends on the region of the Russian Federation. Local governments may increase or decrease the rate depending on the size of the property share, its intended use, and the type of residential building. For example, the minimum tax rate can be either increased to 0.3%, decreased, or even completely abolished. We should also not forget that certain categories of citizens, such as disabled people or WWII participants, are exempt from taxation.

Bottom line

As you can see, the situation is not simple. Theoretically, it would be possible to conclude a rental agreement for 1/6 of the share with the co-owner. This would make it possible to smooth out the costs of maintaining the share and receive a small amount each month. But in fact, this is just a ridiculous amount in exchange for the fact that the owner of the share will not be able to use it.

If your neighbors refuse, you can be forced to pay for the use of your property in court. But, given that we are talking about a small share and little money, we still need to think about whether it is worth it. However, you can wait a little and recover funds for the past three years, and this is a more serious amount.

What do you think about this? I invite you to participate in the discussion and thank you for your attention. Take care of yourself.

Normative base

In accordance with the Civil Code, shared property is property owned by common ownership to two or more persons at the same time. There is a division between joint property, where everyone’s shares are not allocated in kind, and shared ownership, where specific parts of the property are documented for the owners.

Joint property , as a rule, arises as a result of the acquisition of an apartment by spouses during a registered marriage. In the event of a divorce, it is subject to an equal division or, taking into account the circumstances, for example, a larger share is allocated to one of the spouses with whom the minor children remain.

In shared property, the shares of the owners have a strict meaning and are expressed in fractions: one second, two thirds, etc. For strangers, in the case of an apartment, the share is determined based on the occupied area of ​​the room (for example, in a communal apartment).

Owning a share in an apartment does not allow the owner to fully dispose of it. When alienating, compliance with the law is mandatory. Only some actions can be performed without the consent of co-owners. In particular, when selling a share in an apartment, you will need to notify other owners and offer them to buy out under the preemptive right.

Alienation of a share is subject to mandatory notarization. The exception is the case when all owners simultaneously sell an apartment under one contract.

What can you do with your share in the apartment if you inherited a small part of it?

The inheritance is divided between relatives by law, unless otherwise provided by the will. Thus, you can inherit only a small share in a standard apartment. And often the owners of such shares have a question about what can be done with them.

In reality, it is difficult to use a small part of the apartment without the consent of other owners. If we are talking about a one-room apartment, then it is almost impossible to live in it, register other people or rent it out. Without agreement with the co-owners, you can only register yourself on your own small number of square meters. Part of the premises can be sold or exchanged only by agreement with the co-owners.

Usually, if proceedings regarding the use of shares reach the court, the court sides with the owners of large shares. The principle of least infringement of their interests works here. But it also takes into account what kind of relationships bind the co-owners. If people are strangers or are in conflict, then the court is unlikely to make a decision on placing the owner of a small share in the apartment, who will actually interfere with others’ ability to live peacefully.

The most obvious disposal of a small part of the housing would be to sell or rent to other co-owners. But they cannot be forced to do this, and it is necessary to pay utility bills and taxes in proportion to their share (Article 249 of the Civil Code of the Russian Federation).

According to general rules, an insignificant fraction is considered to be too small to be isolated in kind. For example, one owner of a one-room apartment has a documented ¾ share, the second – ¼. In fact, the share of the second person in the housing is 7.5 sq.m., it is impossible to allocate it in kind.

Why is it necessary to allocate shares?

Allocation of shares may be required in the following cases:

1. if one of the owners wants to dispose of the share at his own discretion - sell part of the living space belonging to him, place tenants in it or live in it himself;
2. if the owners cannot determine who will pay utility bills for the apartment;
3. if other disputes arise between the owners that do not allow full use of the housing with comfort for each of them.

The Supreme Court allowed to change the size of the owners' shares

The land plot with an area of ​​6 acres and the house located on it are in common shared ownership between Olga Sakharkova*, Marina Volkovskaya* and Nikolai Kirev*. Kirev asked through the court to allocate his share in the property rights. And although Kirev is owed a little less than two acres of land, he asked to give him 2.65 acres - since such an allocation corresponds to the established procedure for using the plot and house. Sakharkova and Volkovskaya objected: they wanted to keep the 2 acres of land on which the house is located in common shared ownership.

The Kaluga District Court of the Kaluga Region satisfied Kirev's claim. The court rejected the defendants’ option, since the allocation of a share in kind should terminate the share of the allocated co-owner in the entire land plot, and they proposed to partially retain it. At the same time, the court decided to allocate a 22 sq. m path for the common use of all three co-owners. m.

CASE No. 85-КГ18-14

PLAINTIFF: Nikolay Kirev*

DEFENDANTS: Olga Sakharkova*, Marina Volkovskaya*

ESSENCE OF THE DISPUTE: About the allocation of a share in the ownership of a land plot

DECISION: The appeal ruling is canceled and the case is sent for a new trial to the appellate court

The Kaluga Regional Court overturned the decision and adopted a new one, which rejected the claims. He explained: the version of division proposed by the plaintiff does not take into account the size of the parties' shares in property rights, which is contrary to the law.

The Supreme Court recalled: Art. 252 of the Civil Code allows for the allocation of a land plot whose area exceeds the size of the share allocated. If the appeal disagreed with the decision of the first instance court, it was necessary to choose other division options. By completely rejecting the claim, the appeal court did not resolve the dispute, and therefore did not fulfill the tasks of civil proceedings, the Supreme Court noted. Therefore, the Supreme Court overturned the ruling of the second instance court and sent the case for a new trial on appeal. The Kaluga Regional Court should take into account: the allocation of a land plot and the creation of new land plots means that nothing should remain in common shared ownership (No. 85-KG18-14). The case has not yet been considered.

Expert opinion

In judicial practice, there are divisions of a land plot with a deviation from the size of the shares of each owner. To maintain a balance of interests, the court usually orders one of the parties to pay compensation (clause 4 of Article 252 of the Civil Code). In addition, to determine the most acceptable option, the court may order a land survey.

It should be taken into account that the law prohibits the endless subdivision of land plots whose area is less than the minimum size limits (review of judicial practice of the Supreme Court No. 4 of 2021). The minimum dimensions depend on the intended purpose and permitted use of the land. Formation of a plot of 22 square meters. m in shared ownership is unacceptable.

• The Supreme Court allowed the division of shared property against the will of the owners
  April 18, 9:33
• Minor share: when the owner can be forced to sell his part of the home
  September 13, 15:09

If the parties to the dispute want to resolve the situation, the court should help in this. Only in exceptional cases does the legislator allow a forced resolution of the issue if the allocated share is insignificant. “The ruling of the Supreme Court is a successful example of a judicial resolution of a problem that has arisen. The Supreme Court did not reject the claim, despite the formal grounds for this, and did not limit itself to explaining the current legislation, but went further, applying the law in practice. The appeal was recommended to invite the parties to reach an agreement on the method and conditions of division of property, including through the payment of compensation. Previously, such decisions have not been made at the level of the Supreme Court,” noted the head of the “Real Estate” department of MGP Lawyers MGP Lawyers Federal Rating. Group Bankruptcy (including disputes) (high market) Group Corporate Law/Mergers and Acquisitions (mid market) Group Land Law/Commercial Real Estate/Construction Yuri Marfin. “This definition of the Armed Forces should be viewed positively. If the allocation of a share in kind is not prohibited by law and does not entail disproportionate damage to property in common ownership, there are no grounds for refusing the claim. At the same time, the court could, at its discretion, determine the most acceptable option for division,” says Sergei Omelchenko, a lawyer in the real estate and PPP practice of Duvernois Legal. “The Supreme Court rightly noted that the allotment procedure does not allow leaving part of the plots in the common shared ownership of the allotted person and other co-owners,” added the head of the additional office of the National Legal Service AMULEX National Legal Service AMULEX Federal rating. Andrey Eremin.

* – first and last names have been changed by the editors.

• Alina Mikhailova

• Supreme Court of the Russian Federation

What can you do with the received share?

The owner has the right to independently decide what to do with his share. According to paragraph 2 of Art. 246 of the Civil Code of the Russian Federation, he can perform the following actions with it:

1. sell;
2. give;
3. bequeath;
4. pledge;
5. dispose of otherwise.

The restrictions that the owner may encounter when exercising his rights relate only to the sale of his share - he can perform other actions without hindrance.

Art. 250 of the Civil Code of the Russian Federation establishes the concept of a pre-emptive right to purchase - it means that in the event of a sale of a share of an apartment, the owners of the remaining shares have a pre-emptive right to buy it back at the price for which it is sold.

To sell a share taking into account this rule, the owner must:

• set a sales price (note that it will no longer be possible to reduce it for third-party buyers);
• notify in writing all owners of the remaining shares about the upcoming sale and offer them to buy out the share being sold at the specified price;
• wait for a response from all owners (and if there is no response, wait until the 30-day period has expired from the date the notification was sent).

You can do it another way - gather all the owners and invite them to enter into an agreement to refuse to purchase a share in the apartment at the price offered to them. The agreement must be drawn up in writing and certified by a notary.

Some share owners (most often on the advice of realtors) try to circumvent the requirement for a pre-emptive right to purchase by concluding a gift agreement with the buyer. In this case, first of all, the buyer is at risk - if it turns out that the donation covered an actually completed purchase and sale agreement, the transaction will be declared invalid and the share in the apartment will have to be returned. Whether it will be possible to return the money paid is a rather controversial issue.

New law of shared ownership

Back in 2021, the first reading was adopted by a law that should regulate the size of the minimum share, as well as the rights and obligations that arise from it. This should only apply to moments of purchase and sale or donation, but not to privatization or inheritance. As of the date of writing this article, the law has still not been adopted and it is not yet clear when it will be adopted, as well as what exactly will be written in it.