Two buyers: the Supreme Court decided who would get the apartment

Last update: 03/16/2021

The joint purchase of real estate differs in its design and legal consequences, depending on who exactly is buying - spouses, relatives or strangers.

If we are talking about the purchase of common housing by spouses, then this is a common practice in the real estate market, and it does not raise any special questions. The rights of spouses to purchased housing are clearly and unambiguously established by the Civil and Family Codes. You can read more about them at the given link in the Glossary.

How to buy an apartment in common joint or shared ownership if the buyers are NOT spouses? And is it possible to jointly take out a mortgage loan for such a purchase?

This question is asked, as a rule, by young people living in a civil marriage , or by close relatives (brothers and sisters, for example), or by those who buy common real estate together for investment purposes . In all these cases, people who are formally independent from each other want to jointly invest in the purchase of housing. So is it possible to do this?

Can. The law allows this. But there are some nuances here that distinguish such a transaction from an ordinary purchase of personal property. What's special about this?

Buying an apartment and renting it out – is it profitable? Calculations and answer in this post.

First, let's clarify the terminology. When two or more people own real estate, the property may be:

• general joint , or
• common share.

More details about the types of ownership of an apartment and their fundamental differences from each other are described in the Glossary at the link. Here we will only note that buy an apartment as “common joint” property . For everyone else, the purchase of real estate must be registered as “common shared” ownership .

Obviously, the law has made “common joint” ownership available only to those who are in very close family relationships (husband and wife), and can only dispose of their housing in agreement (jointly), as a single owner.

What about the rest? How to register an apartment as common property (for two or three) to other relatives or even strangers ? Let's look at typical options.

!!! Online order Extracts from the Unified State Register and other SERVICES for purchasing an apartment - HERE.

Scams and fraud with housing (special section). Instructive stories with practical examples.

What the buyer needs to know

Joint ownership of real estate is the norm rather than the exception. The reasons why two people turned out to be co-owners of an apartment may be :

• buying an apartment during marriage;
• inheritance of housing by several people;
• privatization of their apartment by spouses;
• purchase of housing by several people at the same time, etc.

There are two types of such property:

• shared - a situation where shares are clearly distributed among the owners;
• general - the shares are not distributed, but each owner cannot dispose of the property without the consent of the other.

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Stanislav Ershov

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Each type of ownership has its own characteristics that the buyer must take into account. If you purchase housing from shared owners, you will need to include each of them in the contract or even draw up a separate agreement with each of them. If the managers of the property are several people united by common property, then the agreement is drawn up with one of them, but the rest must give their consent.

Also, “common” owners can distribute their shares in advance and sell them separately or under one agreement.

Buying real estate for two people who are not spouses

For many young couples these days, a stamp in a passport is an empty formality. The lack of official registration of marriage does not in the least prevent them from running a joint household, giving birth and raising children, or making large “family” purchases. But the spouses realize the full vulnerability of their position only when the union breaks up - which happens with “civil” marriages even more often than with official ones. Therefore, the correct registration of expensive joint property and, first of all, real estate is not only reasonable precaution in case of discord, but also a sign of truly respectful relations between partners.

Apartment inspection: beware of the scammer

Before finalizing the price and other aspects of the purchase and sale agreement, it is necessary to check the apartment for legal purity, and also make sure that all owners agree with the sale.

So, when purchasing an apartment from spouses, you need:

• check whether there is official consent to the sale on the part of the second spouse;
• if there is a child among the owners, then request permission from the guardianship authorities;
• if the share belongs to an incapacitated person, permission from the guardianship will also be required.

When checking legal purity you need:

• check the information contained in the certificate of ownership - it always indicates the number of co-owners and the ratio of their shares;
• order an extract from the Unified State Register to make sure that the housing is not under an encumbrance, for example, under a mortgage, or under arrest;
• request from the owner a notarized permission to sell from other persons who have a priority right of purchase (for communal apartments);
• look on the bailiffs website to see if enforcement proceedings are ongoing against the seller;
• check on the court website whether the seller is a defendant in a property dispute.

Only when you are sure that there are no problems with the apartment you are purchasing can you proceed to the purchase process.

Common property: reasons for its occurrence

Privatization of an apartment for several people determines several owners

Most often, common ownership of a real estate property is a consequence of the joint acquisition of such an object by two or more persons. Although this reason is not the only one and the law allows housing to remain in common ownership due to some other circumstances:

• in case of privatization of an apartment for several people;
• when spouses purchase an apartment during marriage;
• when inheriting a residential property by several heirs.

These reasons are the basis for citizens to fully dispose of their property, but only jointly. The concept of common property has two components:

1. shared - in this case, the shares in the real estate of each of the co-owners are clearly defined and are most often equivalent;
2. joint - housing has several owners, whose shares are not allocated. Most often this happens when purchasing an apartment during marriage and registering it in the name of one of the spouses.

In case of joint ownership of property, it is possible to conclude an agreement between the owners on the allocation of shares of each of them and have it notarized. Thus, joint ownership will become shared ownership.

If a specific share in real estate is allocated, it can be sold. In joint ownership, only the common area can be sold.

Acquisition from shared owners

If the owners of the property are two owners, and each has an allocated share, then when selling the whole apartment they are independent sellers . But there is no need to work with them under two contracts, despite the fact that, in principle, this is allowed. It is better to draw up one agreement that specifies the roles of all three - two sellers and one buyer.

The contract contains the details of both certificates of ownership – for each seller separately. Technically, it looks like each owner of a share sells it independently of the other.

But sometimes drawing up two contracts cannot be avoided - for example, when sellers are located in different regions or do not fundamentally communicate with each other. In this case, the buyer will be able to buy a share from one owner, and then from another. The consent of the other party is not required in any case.

In addition, one of the owners can issue a power of attorney through a notary for the right to sell his share. Then the buyer interacts with only one seller: he sells him at the same time his share and the second co-owner by proxy .

How to purchase an apartment that is in common shared ownership

When purchasing an apartment from two owners, you need to pay special attention to the paperwork

When selling an entire property that has two owners whose shares are allocated, they must act as sellers together. But this does not prohibit one of the owners from putting up their share for sale without coordinating their actions with the second owner.

If a transaction is concluded for the purchase of an entire home that has two owners with allocated shares, then each of the sellers must present a document confirming ownership of his share.

That is, everyone will sell their part of the premises, but there is no need to conclude two separate contracts. One contract specifies each party: one buyer and two sellers.

If the main agreement is preceded by an agreement on the payment of a deposit, then it also indicates two sellers, and the amount of the deposit is distributed equally between them. In this case, each of the sellers draws up a written receipt of receipt of the deposit (its part, proportional to the area).

There are times when the second owner of the home is absent for some reason. In this case, one of the owners can dispose of the property, provided that he has a notarized power of attorney, which gives him the authority to conclude an agreement independently.

What is a share in an apartment and is it worth buying? Answers - in video consultation:

If the owners own the property jointly

Joint ownership is usually formed when a home is purchased by married spouses. In fact, only one of them is the owner of the property - in whose name the apartment was registered. But if real estate was acquired during marriage, then in the absence of the consent of the second spouse it is not possible to sell it. Otherwise, the actions of the participants in the transaction are regarded as fraud, and any court will terminate the illegal transaction.

Consent is drawn up on a special form and certified by a notary.

The only exception to the rule is if the spouses have entered into a marriage contract between themselves, which stipulates that only one of them is the full owner and can dispose of the living space at his own discretion.

In addition, joint ownership may arise among heirs and close relatives if the apartment was purchased with a mortgage and one of them acted as a co-borrower. So, if the seller has relatives, it is necessary to obtain their consent.

Contract for sale with two owners

The document confirms the consent of the parties to the transaction to re-register the property. Copies of the agreement are drawn up depending on the number of legal sellers and buyers.

Regardless of the type of ownership, the contract includes the following mandatory clauses:

• name of the document, date and place of execution;
• personal data, indicating full name;
• description of housing - method of acquiring real estate, basis, location, area, with the footage of residential and non-residential rooms, as well as the share of each owner;
• real estate price – total and divided into shares;
• rights, duties and responsibilities of the parties to the transaction;
• a note on the legal capacity of buyers and seller;
• handwritten signatures of the participants.

Documents for the transaction:

1. Participants' passports.
2. Documents confirming ownership.
3. Documents for the apartment (technical, cadastral passport, house register, housing and communal services certificates about the absence of debt).
4. Agreement.
5. Deed of transfer of real estate.
6. Other documents in case of additional encumbrances (mortgage, minor, incapacitated, etc.).

Features of the purchase if the owner is a child or incapacitated

If the sellers are parents, and there is a child among the share holders, then it will simply not be possible to buy such housing. To purchase such property, parents will first have to obtain consent from the guardianship authorities. In turn, officials will give permission for the sale only if the child is simultaneously given a share in other property. Thus, it is realistic to buy such real estate only through an alternative transaction.

Most often, the child becomes the owner of the share if the housing was purchased with maternal capital. Therefore, check whether the mortgage has been issued and whether the encumbrance has been removed. Otherwise, when conducting a transaction, you may encounter unpleasant “surprises”.

If among the owners there is a citizen declared incompetent by the court, then the other owner of the property will also need to obtain the consent of the guardianship authorities.

You should also pay attention to the moment of discharge. It is better if children and incapacitated citizens are discharged before the sale of housing. This will not prevent the registration of the transfer of ownership in any way, but in the future there may be difficulties with the extract.

Purchasing an apartment in a building under construction

When deciding to buy real estate in a building under construction, you need to be aware of a certain risk, since the seller will have the property only after the house is delivered. For this type of transaction, it is necessary to draw up an agreement for the assignment of the right of claim. And also for legal re-registration you will need the official consent of the developer, who is the owner of the apartment. If the seller has repaid the debt to the owner, then notice is provided, but in the case of a residual debt, consent will have to be sought.

Another type of ownership with established shares is a partnership. The buyer will have to join the community and pay shares, which are determined by an agreement with prescribed terms and amounts. After delivery of the house and payment of the described shares, the buyer becomes the full owner of the property.

How to buy a communal apartment

If the buyer wants to purchase a room in a communal apartment, then the situation is somewhat more complicated. A room in such an apartment is often registered as the common property of the residents, for example, a husband and wife. But the apartment has common areas - toilet, kitchen, hallway. This area must be distributed into shares.

This is done in front of a notary with the general consent of all owners, including the owners of other rooms. In addition, the remaining residents must give written consent to the sale of the room, since they have a priority right to purchase. This is done again at the notary.

How to register real estate?

Although in recent decades the attitude towards “civil marriage” in our society has greatly softened, partners in unregistered relationships must clearly understand that from the point of view of the law, their union is considered cohabitation, which does not entail any legal or property consequences for the “spouses .

From the point of view of the law, a “civil” marriage is considered to be one registered in the registry office, but not supported by a church wedding. But people use this word to call “unofficial” relationships.

What does this look like in practice? An apartment acquired by legal spouses during marriage is their joint property, to which each of them has the right to a share. However, if the relationship is not registered and the couple decides to separate, the property remains with the owner in whose name it was registered. In order to claim their share in court, the other half will have to put in a lot of time and effort, and the likelihood of a successful outcome of the case is extremely low.

How to get a mortgage?

Today, many banks are quite loyal to “civil” marriages and allow unregistered spouses to obtain a mortgage for an apartment purchased jointly. In this case, the income of both partners can be taken into account, which means more favorable loan terms. However, unregistered unions cannot qualify for preferential “family” mortgage programs (for example, shares for young families in Sberbank) and may face restrictions if they want to use maternity capital when repaying the loan.