Division of land for an apartment building

Living in an apartment building inevitably entails the emergence of various disagreements and conflicts with neighbors. The situation is especially aggravated in low-rise apartment buildings, where there are 4-8 apartments per building. Formally, they are all isolated premises, but legally they are sometimes in shared ownership of all residents (owners) of the house. If disagreements arise regarding their use, the question arises: is it possible to divide the site for an apartment building?

Definition of an apartment building

According to the Decree of the Government of the Russian Federation dated January 28, 2006 No. 47, the concept of an apartment building can be defined as a building that is equipped with two or more premises for living, with separate exits to common areas or to the local area.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

In addition, a feature of an apartment building is that such real estate has signs of joint ownership, for example, a common roof, foundation, elevators, landings, etc.

Formally, the so-called houses “for two owners” also fall under the concept of an apartment building. Court practice increasingly comes down to the fact that if each apartment has a separate exit/entrance and it does not pass through a common area, then such a building cannot be considered an apartment building (Decision of the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation).

Is it possible to divide the land plot under an apartment building?

According to current legislation, all homeowners in an apartment building have a share in ownership proportional to the total area of the residential premises.

The same principle applies to a land plot located under an apartment building, which is also subject to division commensurate with the living space of the apartment.

Example . On the plot of land there is a residential building, which consists of four apartments, two of them have one pair of rooms, the area of which is fifty square meters each, the rest consist of four rooms - one hundred square meters each. In this case, the distribution of shares of the said joint property will be as follows: owners of two-room apartments will acquire 1/6 of the property, and owners of four-room housing, respectively, will acquire 1/3.

However, the distribution of land has a slightly different order. Thus, according to the norms of the Housing Code of the Russian Federation, the territory that is located under a multi-apartment residential building can belong to all residents of the apartments of the specified building only as collective property. Thus, the law clearly states that division of the land plot under this building is unacceptable.

The Real Estate Department of the Ministry of Economic Development of the Russian Federation adheres to the same position in its letter dated May 18, 2016, referring to the provisions of Art. 36 of the Housing Code of the Russian Federation.

However, despite the aforementioned clarifications from the legislator, the procedure for dividing land under an apartment building still has exceptions that apply to one-story residential buildings.

It is impossible to divide the plot under a multi-storey and apartment building! Even if the adjacent territory belongs to the house, it is impossible to allocate any part in favor of the tenant. Even court buildings (garages, sheds) can be owned, but the land remains “tied” to the residential building.

Preparatory measures for dividing a land plot

The division of the local area involves the formation of several new plots, and this process requires careful preparation. It consists of several stages:

Studying information about a divisible object.
Valuation of land authorized by an organization. The indicator will affect the cost of work.
Field work - includes surveyors visiting the site, land surveying, defining boundaries, and placing signs.
Registration of a cadastral plan. If available, plot owners will be issued certificates of their property. Each part will be assigned an individual number upon cadastral registration.

The collected documents can be sent for registration through the multifunctional center (MFC). Before this, you must pay the state fee.

Based on the information received by Rosreestr, a decision is made to transfer the land plot to the private ownership of the owners of the apartments.

After passing all stages, the owners of land plots take responsibility for their maintenance and improvement.

Grounds for dividing a plot of land under an apartment building

If there is a one-story house on the land plot, which contains from two to eight apartments, each of which has separate entry points to the adjacent plots, then such plots can be divided using allocation in kind.

Practice shows that, despite all the conditions presupposing division, such as a separate entrance and address, the land under the residential premises cannot be divided due to its belonging to the category of individual housing construction, and the premises themselves are assigned the status of an apartment building.

The only way out of this situation will be to transfer the house into joint shared ownership and, as a result, the real allocation of pre-allocated parts.

However, no special reasons are required for such a section. These may be completely everyday reasons:

disputes between heirs and subsequent division of inherited property;
disputes between neighbors who are co-owners of housing;
disagreements between residents of the same apartment;
the desire to separate and allocate property in kind, in order to avoid disputes and agreements with other property participants.
other reasons.

The law does not establish any exceptional cases, therefore, when dividing a land plot for an apartment building, everything depends on the status of housing.

Features of the division of land plots in state and municipal ownership

If the land is municipally owned or owned by the state, the process will be slightly different.

The site is divided, maintaining the original size, but new boundaries are added to it. To begin this event, it is necessary to have the written consent of the stewards of this land (local government bodies). Consent must be obtained before the main work is carried out: the development of plans and diagrams. For land surveying, the municipality or other authorized body of the local administration makes an application to the Technical Inventory Bureau (BTI) or hires an accredited cadastral engineer.

The process takes time to prepare and document, but in the end, the division of the territory that is the property of an apartment building brings more advantages than disadvantages. This is a good opportunity to legalize a shed in the courtyard of a house, build a garage, get the opportunity to place a small shopping pavilion on the ground, and also rid yourself of potential troublemakers who build entertainment establishments in the local area.

Section order

This procedure is quite complicated, but it is still possible. First of all, owners need to establish whether there is a possibility of dividing an apartment building in kind from a technical point of view. To this end, the latter need to seek help from expert organizations that can conduct an independent construction and technical examination and provide a comprehensive answer regarding the possibility and procedure for a real division.

Example. An apartment building, consisting of two rooms, is located on a plot of land with a total size of forty thousand square meters. Each apartment has a separate entrance, independent water supply and sewerage. The only thing that unites the building is the roof and foundation. Based on the results of the construction and technical examination, it was found that the actual division of the living space seems possible.

In case of receiving a positive expert opinion regarding the possibility of real division of the house, all owners need to collect the appropriate permitting documentation for carrying out work on reconstruction or redevelopment of the property. To do this, you should contact the territorial branch of the municipal authority located at the location of the disputed land plot.

Seek legal advice before you begin collecting documents. These disputes are extremely complex, and there is a high risk of refusal to divide the housing. It’s better to get help now than to urgently look for a lawyer later!

Thus, the next stage will be the division of the structure by allocating shares in kind. As a result, from one multi-apartment premises two or more independent parts of a residential building will be formed.

Remember:

After the owners decide on the real shares of the disputed real estate, the latter should begin the procedure for dividing the land plot located under it, as well as its local area. In this case, some nuances provided for by law should be taken into account.
The division of a plot may be permitted only if the newly formed real estate objects retain the same permitting purpose as the original plot.
The second condition for the division of land is regulated by Art. 1 of the Land Code of the Russian Federation, which defines the principle of indivisibility of the fate of allotments with the premises located on them. In this case, it is meant that the owner who received a specific share of residential real estate will also receive ownership of part of the land located under it.

Rules for dividing a land plot in common ownership

In order to begin the procedure, it is necessary to organize a meeting of the owners of the site and obtain the consent of everyone. The progress of the meeting and voting results are reflected in the minutes. The minutes of the meeting are a mandatory document as part of the package of documents. It is attached to the statement of intention to divide the territory between the owners.

An owners meeting is not always required. The exception is if the decision to divide was made during a trial, or the land was allocated by a municipal or federal enterprise.

After this, an agreement is prepared between the participants in the section. It states which part will belong to whom. The agreement specifies their area and location.

After the redistribution of territory, a scheme must be drawn up. It indicates the plan of the boundaries of the divided plots, their area, coordinates on the ground, red lines, plans for the adjacency of the land. Based on the data obtained, subject to approval of the division scheme, the specialist develops a cadastral plan.

What is needed for this?

In order to divide a residential building and a land plot, it is necessary to have either an agreement signed by all property owners, or a court decision authorizing such actions.

Agreement

If all homeowners agree with the allocation in kind of the agreed premises and the division of the land plot, the latter have the right to enter into a voluntary agreement.

To do this, you must adhere to a certain algorithm of actions, namely:

discuss all possible options and nuances of the division, as well as determine the possible material costs associated with such a process;
draw up and formalize the agreement itself;
in full force, contact a notary office to certify the specified document.

Important! When visiting a notary, all parties to the agreement must have personal identification documents with them, as well as papers confirming property rights to the divisible property. In this case, notarization of such an agreement is not required - but can be done at the request of the parties.

Subsequently, the agreement and package of documents are submitted to Rosreestr or MFC for re-registration of ownership of the land plot.

For more details, see the material “Division of a plot between owners by agreement,” which provides the most detailed information on the procedure for dividing land.

An important condition for division by agreement is that it must be technically and legally possible to divide the allotment between the owners of parts of the building. If the plot is indivisible, you can forget about the division.

Judgment

If persons living in an apartment building have not been able to find a compromise on the issue of dividing the disputed property, then the only way available for such action is to obtain a court decision.

For this purpose, one of the co-owners needs to file a claim for division of the house and land plot with the judicial authorities.

Statement of claim

To initiate the procedure for judicial division of a land plot, it is necessary to prepare a statement of claim and collect all the necessary documents. The claim is drawn up according to the provisions of Art. 131-132 Code of Civil Procedure of the Russian Federation.

The statement of claim must contain the following information:

name and address of the authority to which the document is submitted;
personal data of all parties to the trial (full name, place of residence, contacts);
price of the statement of claim;
a detailed statement of the circumstances that preceded the filing of the claim, including the shares of real estate belonging to the owners, as well as information about the pre-trial settlement of disputed relations;
a reflection of the plaintiff’s position regarding the fair division of the building and land allotment, argued by the norms of the current legislation;
a statement of the applicant's final claims;
list of attached documentation;
signature of the plaintiff and date of drawing up the document.

Sample claim

For an approximate example, you can use any claim relating to the forced division of a land plot.

At the same time, you should not overestimate your strengths and refuse the help of lawyers. Remember. That you will hardly be able to draw up a statement of claim on your own.

Documentation

In addition, the following documents must be attached to the statement of claim:

copies of passports of all parties to the case;
technical and cadastral passports;
title documents for the disputed real estate;
conclusion of the examination, if one was carried out
confirmation of payment of state duty.

Documents can be attached in copies (excluding the expert opinion), but be prepared to show the originals in court.

The claim and a package of documents are submitted personally by the applicant to the judicial authority or sent by registered mail. If you have an electronic digital signature, you can file a claim directly without leaving your home, using the State Services website and the portal sudrf.ru

Where to submit?

Claims for the division of real estate, taking into account the price of the statement of claim and the specifics of the dispute, will be considered only by the district (city) court.

Magistrates have no authority to hear such cases;
Geographically, such claims must be filed at the location of the disputed property and without regard to the place of registration of the plaintiff or defendant.

Example . If the plaintiff lives in Moscow, the defendant lives in Volgograd, but they decide to divide the land under an apartment building in Perm, the claim will be filed in Perm. In this case, neither the place of official registration of the parties nor the place of their actual residence matters.