Case of forced purchase of 1/3 share in a one-room apartment

9

The legislation of the Russian Federation does not clearly indicate what the smallest size of a share in a residential building can be. Often, having received a small part of the apartment in one way or another, the owner uses it as a lever of pressure on other co-owners or does not want to sell it for the amount that they can offer. He quite reasonably believes that his right to housing is inviolable and is protected by the provisions of Art. 35 of the Constitution of the Russian Federation.

required by a court order to sell his property. You will learn which ones and how to correctly initiate this procedure by reading our article.

When is it necessary to contact the courts?

The definition of shared ownership is enshrined in Article 244 of the Civil Code of the Russian Federation. It arises when one residential property has several owners, each of whom has the right to a part expressed in a shared ratio (for example, ½, 2/5, 7/16, etc.).

Typically, co-owners of a residential property can agree with each other and either allocate a share in kind to each, or determine the procedure for using the apartment. Of course, in some cases you have to go to court for this.

Expert opinion

Stanislav Evseev

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

However, it also happens that the share of one or more owners is so small that it is not possible to allocate it (that is, to equip separate entrances, living and utility rooms). Sharing is also not possible (for example, due to the small size of the apartment).

In this case, the only way out is to buy out the share. Some owners of a tiny part do not want to voluntarily sell their property, since they cannot agree with the other co-owners on the price of such a transaction. Is it worth going to court to force a co-owner to sell his share? Indeed, in fact, no matter what size part of the housing is, it is still private property. It turns out that this is possible.

Arbitrage practice

When considering claims of this type, the court relies on:

• Article 247 of the Civil Code of the Russian Federation – use and ownership of property in shared ownership.
• Article 252 of the Civil Code of the Russian Federation – division of shared property.
• By definitions of the Armed Forces of the Russian Federation No. 46-KG16-8, 18-KG16-65 and 5-B11-134.

Example No. 1: A woman went to court who wants to forcibly buy out a small share of her ex-husband, which he does not want to sell due to a negative attitude towards his ex-wife. Having studied the case materials and being guided by the above-mentioned norms of legislation, as well as the rulings of the Supreme Court of the Russian Federation, the court decides that the man’s share is indeed insignificant, he cannot use it, and also has no interest or need to live in this particular apartment (have their own, other housing). Based on the court decision, the woman is obliged to pay compensation for the specified share of the property, after which she receives ownership of it.

However, it is not always the case that a small share is truly absolutely insignificant. Some apartments can reach several hundred square meters in area and even 1/10 of them - this is a solid room that can really be used separately from the rest of the housing.

Example No. 2: A man who is one of the owners of an apartment with an area of ​​200 sq.m. appealed to the court. He owns 9/10 of this property. He wants to forcibly buy the remaining 1/10 from the other owner. However, the court refused him, because 1/10 in this case is 20 sq.m., and such an area is commensurate with some one-room apartments.

Forced redemption of a share in an apartment through the court can be a difficult task, especially when it is difficult to clearly recognize it as insignificant. In addition, for some owners this small share may be their only home. Even if a person permanently lives in a rented apartment, a share in other real estate allows him to maintain registration, which is why he does not want to sell it. In such a situation, the court may take the side of the defendant. At a free consultation, experienced lawyers will provide answers to the most popular and controversial questions. They are ready to act as representatives of the client in court. In practice, working through a specialist significantly increases the likelihood of getting exactly the solution you need.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then

:

• describe your situation to a lawyer in an online chat;
• write a question in the form below;
• call Moscow and Moscow region
• call St. Petersburg and region

Save or share the link on social networks

(
2 ratings, average: 5.00 out of 5)
Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

Ask a question Author's rating

Articles written

513

- FREE for a lawyer!

Write your question, our lawyer will prepare an answer for FREE and call you back in 5 minutes.

By submitting data you agree to the Consent to PD processing, PD Processing Policy and User Agreement

Useful information on the topic

Eviction from a mortgaged apartment

One of the ways to get your own home if you don’t have sufficient funds...

2

Eviction from the hostel

If a person does not have his own housing, he is forced to look for an alternative….

3

Eviction of minor children from residential premises

Minors are one of the most vulnerable categories, until they reach adulthood...

1

How to evict alcoholic neighbors

Neighbors leading an antisocial lifestyle mean constant noise, brawls,...

Privatization of a house with land

Privatization has been going on in the country for many years now and...

Privatization of apartments, housing

Privatization of housing is one of the few ways to officially and...

Grounds for going to court

If it was not possible to agree with the owners on the voluntary sale of a share of the apartment, then the only way is to buy the property by court decision. However, before contacting the justice authorities, you need to decide whether your demand has legal grounds? The are required :

Only the presence of a combination of all three circumstances will allow the court to make a decision on the forced redemption of the share.

Order and procedure for going to court

Consideration of cases of forced redemption of shares falls within the competence of district courts of general jurisdiction for the territorial location of the disputed property.

In order to obtain a court decision on the mandatory sale of a share, you must follow a certain algorithm:

1. Pre-trial settlement. This procedure is not mandatory, but if the judge receives information about an attempt to implement it, this will work in favor of the plaintiff. To do this, you need to send a letter to the owner of a small part of the apartment, indicating that you want to buy out his share. Even if there is no response, a copy of the notification letter will become evidence. If you receive consent, then you will need to act as we described in this article.
2. Determining the value of a share. To do this, it is best to use the services of a professional appraiser and provide the court with a ready-made expert opinion. An increase in the value of a minor share can occur due to a number of reasons. For example, the owner has significantly improved the housing at his own expense (made repairs, installed communications, etc.). If the co-owner does not agree with the results of the examination, then a forensic examination may be ordered. However, it is worth remembering that in the event of a positive verdict in a court case, all costs (state fees, examinations, etc.) can be recovered from the defendant in favor of the plaintiff.
3. Collection of documents. The more complete package of documents you provide to the court, the more likely it is that the decision will be in your favor. Each of the grounds for forced redemption of a share must be proven. Remember that there is no “extra” evidence.
4. Filing a claim. This document initiates the legal proceedings. Therefore, you should approach its writing responsibly. Study the norms contained in the Civil Code and Civil Procedure Code of the Russian Federation. However, it is best to contact a professional lawyer.
5. Depositing the amount for the redemption of the share onto the court deposit. The applicant's lack of funds for ransom automatically entails the return of the statement of claim. In case of refusal to satisfy the claim, the court will return the credited funds in full. If the value of the share increases by court decision, the plaintiff will have to additionally contribute the established portion.
6. Submitting a statement of claim and documents. The collected papers are sent to the office of the judicial authority. This can be done either personally or through a representative. If you decide to send an application by mail, then use the simple notification service. After all, it is from the moment the claim is received by the office that the countdown of the consideration of the civil case begins.
7. Trial. After the court has accepted the claim for consideration, the most important and lengthy stage begins. At the appointed time, all participants in the process must appear in court and express their point of view on controversial issues. At this stage, the help of a lawyer is also indispensable - special legal knowledge is required to argue your position.
8. Making a decision. After the trial, the court makes a decision. It may be either completely in your favor or in favor of the defendant (refusal of forced redemption), or your demands may be partially satisfied (for example, the amount for the sale of a share is determined to be slightly higher than you demanded). If you are not satisfied with the decision, you must appeal it to a higher court).
9. Registration of a share in property. As soon as the court decision comes into force, funds from the court deposit are transferred to the defendant’s account. And the plaintiff must obtain a court decision and contact the MFC or Rosreestr to register the acquired part as personal possession. If at the same time you become the sole owner of the entire apartment, then you can immediately receive the corresponding extract from the Unified State Register of Real Estate. We described this procedure for merging shares in detail in this article.

Required documents

In order for your claim to be accepted by the court for consideration, you must prepare and attach the following documents:

• applicant's passport;
• the required number of copies of the application (for each of the defendants and one for the court);
• an extract from the house register or an apartment card (can be obtained from the Department of Migration Affairs of the Russian Federation);
• technical documentation for the apartment;
• an extract about the owners and the size of shares from the Unified State Register;
• receipt of payment of state duty;
• documentary evidence of the validity of the claim (receipts for payment of utility bills only by you, an extract from the Unified State Register of Real Estate about the availability of other housing for the defendant, etc.);
• other documents that, in your opinion, confirm that you are right (for example, an appraisal report, etc.).

Deadlines

Once the statement of claim is received by the office, the countdown for the trial begins. The judge has 5 days to study your petition and determine whether it is subject to acceptance for consideration on the merits or whether there are gross violations of the Legislation and the claim is returned to the applicant.

The review itself usually takes no less than two months. Most often, it is delayed due to the fact that the parties cannot agree, they require more and more examinations, hearing witnesses, etc. But even after the decision of the court of first instance (district court), more than one month may pass - both the plaintiff and the defendant can appeal the verdict.

Example . After the death of Proskurin V.P. his one-room apartment was inherited in equal shares by his three children - Proskurin S.V., Sviridova L.V. and Kostina D.V. Since all three could not live in the apartment together, the family council decided that Proskurin S.V. will buy out the sisters' shares and become the sole owner of the home. With Sviridova L.V. he managed to agree on the price, and the deal went through. Proskurin became the owner of 2/3 of the apartment. However, Kostina (she still had 1/3) believed that her brother owed her twice the amount offered for her share in the apartment. Proskurin turned to an independent expert and he estimated the part belonging to Kostina at 320,000 rubles. The woman was not satisfied with this amount. Then the brother filed a lawsuit for forced redemption of the share. He argued that the allocation of a natural share, as well as joint use of housing with Kostina, is impossible, that the defendant owns two more apartments, and she permanently resides in another city. The court accepted all these arguments and sided with the plaintiff. At the request of the defendant, an additional assessment of the cost of housing was also carried out. According to its results, the amount remained the same - 320,000 rubles. The judge ruled to satisfy the claims in full, and Proskurin became the sole owner of the one-room apartment, and the costs of conducting the examinations were assigned to Kostina.

Price

When going to court, you must pay a state fee. Its size depends on the price of the claim (the cost of the share that you want to buy out) and is defined in Art. 333.19 Tax Code of the Russian Federation. It cannot be less than 400 rubles, but it also cannot exceed the amount of 60,000 rubles.

✅ Pre-trial settlement of the issue

Before entering into litigation, it is necessary to try to resolve the issue peacefully through negotiations with the owner of the share.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

The parties often cannot agree on the price, and the reference point in this dispute should be the appraisal . You should order a determination of the market value of real estate from independent appraisers or specialized expert organizations licensed to engage in such activities.

The assessment specialist will need to be informed about the purpose of the examination, the form of ownership of the subject of assessment (share) and present documents confirming the rights to the living space. Based on the information received and statistical data, he will calculate the market value of the purchased share and formalize it in a report.

All this is necessary to obtain the most current and reliable price indicator, however, the owner of a small share may not agree with it. In this case, litigation is inevitable (unless the buyer agrees to the terms of the potential seller, despite their inconsistency with the results of the examination).

Another intractable problem may be the fundamental reluctance of the owner to sell the meters he owns. There are many reasons for this, and depending on their nature, you can try to find a common language with your opponent. But, if his position is unshakable, the interested co-owner of the living space will have only one thing left - to apply to the court for resolution of the issue.

Claim for forced purchase of a share in an apartment (sample) 2021

The statement of claim is drawn up in accordance with the provisions of Art. 131, 132 of the Code of Civil Procedure of the Russian Federation in writing. The claim must contain the following information:

• name of the judicial authority;
• data (profile and contact) of the plaintiff;
• information about the defendant;
• the price of the claim and the amount of state duty paid;
• name of the application (“on recognition of the share as insignificant and its forced redemption”);
• a description of the circumstances under which ownership rights arose for each owner;
• location of the apartment, its description;
• the size of the share of each co-owner;
• reason for the dispute;
• were there any attempts at a peaceful settlement;
• results of the assessment examination (if available);
• motivated demands, with references to the norms of the current legislation of the Russian Federation;
• list of attached documents;
• date of preparation and signature of the applicant.

What is a minor share?

The laws do not provide a strict definition of an insignificant share. However, judicial practice shows that very small parts of the apartment that cannot be separated into a separate room are considered as such.

Accordingly, the owner of this share is not interested in living in the apartment or otherwise using his property.

In some cases, without an examination of the apartment, it is difficult to understand how small a particular share is.

A small share in the apartment may be forced to be sold to the remaining owners. Article 252 of the Civil Code of the Russian Federation allows such a transaction even against the will of the share owner. For this purpose, it is necessary to recognize the share as insignificant.