Persons who have entered into a social rental agreement with the municipality or government authorities have a chance to obtain ownership of the apartment transferred to them for use.
This process is called privatization and is carried out absolutely free. In practice, residential premises become the property of not one, but several persons.
Which one is the owner? How is a privatized property inherited after the death of the owner? You will find answers to these questions in this article.
Who has the right to an apartment?
It is necessary to immediately note who has the right to a privatized apartment. Regardless of how this right is acquired, the scope of powers is equal . A person could receive an apartment as a gift, under a sales contract, as an inheritance, or as a result of privatization - there is no difference.
The content of the concept is disclosed in Chapter 13 of the Civil Code.
According to Article 209, the owner owns, uses and disposes of property at his own discretion.
This is the most complete of real rights.
For example, a tenant exercises fewer rights and cannot sell, mortgage or inherit an apartment.
In addition to the general norms of the Civil Code, which are directly related to the issue under consideration, it is also regulated specifically - Chapter 18. GK. Part 1 of Article 288 specifies: proprietary rights are exercised in accordance with the purpose of the apartment. That is, you cannot open a nightclub or burn it down, but you can only use it for living. This is also indicated by the 3rd part of Article 288: no industrial production.
As for renting out under a contract, this does not contradict the purpose if the tenant uses it for living (Part 2). The law also requires the execution of an agreement and payment of tax . Chapter 5 of the Housing Code contains similar provisions.
210th Art. The Civil Code adds that the owner bears the burden of maintaining the property :
- Pays taxes;
- communal payments;
- carries out repairs;
- compensates for damage caused (for example, to neighbors after flooding).
Unless otherwise provided by law or contract. Let’s say, a property insurance contract, which you can use to protect yourself in case of accidental loss of an apartment, for example, in a fire (Article 211)
Parents privatized the apartment for themselves: how to manage it?
Both owners can equally use and dispose of their home , that is, exchange, sell, donate, make it a pledge, or rent it out.
After the owners pass away, the home will pass to their heirs, and it does not matter whether they were registered there or not.
Those who are registered in it can become hosts.
Those who are not family members can be evicted from their living space through a court order. The procedure for using and disposing of housing is also decided through the court if friction arises among the owners and agreement cannot be reached.
Shares can be distributed at your own discretion by concluding an agreement with the other participants in the privatization , which is then certified by a notary.
Read in what cases it is possible to challenge the privatization of an apartment in court. After reading the article you will learn what an apartment warrant is and why it is needed.
The agreement for the transfer of ownership of an apartment confirms the transfer of municipal housing into the ownership of individuals. faces. Read about how to register it here
What does property rights provide?
Comparing the scope of the owner’s rights to a privatized apartment with the rights of the tenant, it is necessary to highlight the main difference: the ability to own, use and dispose of real estate in the most complete way:
- Present;
- Sell;
- Change;
- Leave a legacy;
- Encumber with collateral;
- Etc.
Entering into an inheritance is possible in 2 ways: by will and without a will.
In return, the owner has to put up with:
- Increased rent;
- The need to pay property taxes;
- Loss of a real opportunity to improve your living conditions;
- The prospect of becoming a victim of scammers and losing your home.
That is, privatization not only gives, but also takes away, which is why the laws “On the implementation of housing complexes” and “On the privatization of housing” provide for abandonment and some resort to this means.
Rights of shareholders in a privatized apartment
Common property can be joint (without allocation of shares) and shared - with allocation (244th Civil Code). Unless otherwise indicated, it is implied to be shared (3rd part of Art. 244)
General joint property, for example of spouses, can be allocated by agreement or by the court (5th part). In this case, we are talking about a share in the right, and then you can demand the allocation of a share in kind (Article 252). In general, Chapter 16 of the Civil Code is devoted to these issues.
Comparing the rights of the owner of an entire apartment with the rights of a shareholder, we can say that in addition to the burden of property in general (210th), he also bears the burden of taking into account the interests of other shareholders .
From Article 246, in particular, it follows that the disposal of common property is possible only by agreement of all participants.
We can talk about a pledge, a rental agreement, or a sale.
And if, for example, an apartment is rented, then in addition to the general consent to conclude an agreement, the payment will be divided between the owners in proportion to their shares (Article 248).
In case of sale of a share under an agreement or its exchange , Art. 250. it is established that the owner is obliged to first offer his share at the same price to other owners . There is only one exception to this rule - sale at public auction . If this is a gratuitous transaction (donation or will), other shareholders naturally lose their right, because the donor or testator is not indifferent to whom to transfer the apartment for free.
Being the owner of a share in the right to an apartment, the shareholder is also an even more fractional owner (shareholder) in the right to common house property (289th Civil Code).
How to sell an apartment privatized for two?
Do you want to sell a property, but don’t know what to do if the apartment is privatized for two?
A citizen who is a co-owner of the premises has the right to freely dispose of his part of the property (sell a share of housing, bequeath it, donate it, etc.). However, in doing so, he must not violate the rights and interests of other co-owners.
In such a situation, you have 2 options:
- agree with the second owner of ½ of the apartment and sell the property as a whole (finances received as a result of the transaction will be divided between the sellers in those parts that correspond to the size of their shares of the property);
- find a buyer (third party) and notify the co-owner of the residential premises about the sale of a share of the property (notification of the owner is mandatory by law, since he has the pre-emptive right to purchase the share of the apartment).
In the latter case, it is necessary to focus on the behavior of the co-owner of the property. The notification is issued in writing and sent to the owner of the second share of the premises by mail (the notification can also be delivered in person).
A citizen has one calendar month to purchase part of the housing put up for sale. In this case, the co-owner has the right to buy it back at the same price that was offered to a third party.
If the co-owner of the apartment refused to purchase the second share, the seller has legal grounds to enter into a purchase and sale agreement with a third party (potential buyer). The same applies to the situation if the co-owner of the property has not responded to the notice after a month has passed from the moment it was sent.
Children's rights
Minor child owners, including those who are completely incompetent, are not deprived of the rights to a privatized apartment (Article 17).
They can own, use and dispose of an apartment or share on a general basis .
The difference is that they acquire and exercise their rights not personally, but with the help of representatives - parents (adoptive parents), guardians or trustees.
These issues are regulated by Chapter 3. GK. As a general rule, guardianship is established over persons under 14 years of age, and from 14 to 18 - guardianship .
From 37th Art. The specificity of the guardian's or trustee's disposal of the ward's apartment (shares) follows
- The need to obtain the consent of the guardianship and trusteeship authority for transactions (Part 2);
- The impossibility of making transactions (even with the consent of the authorities) with the ward (that is, being one of the parties to the contract), with the exception of gratuitous and clearly beneficial for him (for example, donation).
Since 2015, the general provisions of the Civil Code have been supplemented and specified by the Law “On Guardianship and Trusteeship” (48th Federal Law). In particular, 19th Art. prohibits the transfer of the ward's property for use for a period longer than 5 years . In exceptional cases, the consent of the guardianship authorities will be required.
We can talk about a rental agreement for an apartment or part of it, and the prohibition of the 19th Art. due to concerns about compliance with the housing rights of a minor.
What it is
In the process of a privatization transaction, the rights to a residential property that was in municipal ownership are re-registered. All citizens who lived in an apartment on social rent and who expressed a desire to obtain ownership of housing have the right to draw up a privatization agreement. Participation in the privatization program can occur in the following options:
- the decision to participate in privatization can be made by all tenants of residential premises, and ownership will be established in joint or shared form;
- individual family members have the right to refuse to take ownership of housing, giving consent to privatization for the remaining residents;
- Minor citizens are required to take part in a privatization transaction; their exclusion from the list of potential owners is not allowed without the consent of the guardianship authority.
If all family members took part in the privatization transaction, they acquire equal rights after registration with the Rosreestr service. At the same time, permanent registration for the residential premises is maintained, and all rights and obligations when using the apartment will be of an equal nature.
If any citizen decides to refuse privatization, he does not lose the right to permanent use of housing even after re-registration of property. At the same time, such persons retain registration at their place of residence, and arbitrary deprivation of their housing is not allowed.
Let us consider the key nuances of the use and disposal of residential premises acquired by citizens as a result of a privatization transaction.
Who has the right to housing?
In addition to the Civil Code, the right to living space in a privatized apartment is regulated by the Housing Code. The owner has the right to live together with family members (Articles 30 and 31 of the Housing Code).
From the 2nd part it is clear that the owner can dispose of housing under contracts : rent, lease or for free use. At the end of the contract, he can evict these persons, and no one will interfere with him.
Residents' rights of use
Family members have the right to live in a privatized apartment , unless otherwise established (31st), which terminates when family ties are broken and can be extended by agreement or by court decision.
The Housing Code additionally establishes a number of restrictions that serve the interests of low-income people and minors who are deprived of their only home. The owner needs to be careful, taking into account the special nature of housing relations, their social, and not just civil nature.
Next, we suggest watching a video that explains what members of the owner’s family are entitled to:
Rights to an apartment after privatization
It matters on what basis the apartment was registered. Article 31 of the Housing Code defines the rights of residents in a privatized apartment living with the owner.
If, for example, the basis was the conclusion of a rental agreement, then upon expiration of its term, the resident will lose the right to use the residential premises , unless otherwise established by the agreement (5th part of Article 31)
The main difference is that the rights of the owner of a privatized apartment are absolute and unlimited, while the rights of a registered person living in the apartment are urgent and limited .
It is also possible to note the rights of persons who received the opportunity to live by testamentary refusal (Article 33) - for the period specified in the will and on the basis of Article 34. Housing Code - when concluding a lifelong maintenance agreement (and Chapter 33 of the Civil Code).
Article 35 of the Housing Code provides for the eviction of a person who has lost the right of residence. If he does not agree to leave the apartment voluntarily, his expulsion occurs by court decision .
What rights does the owner of a privatized apartment have?
The rights of a citizen who is the owner of a residential premises after the end of the privatization procedure do not differ from the rights of any other owner who received an apartment in a different way (for example, by concluding a purchase and sale agreement).
Listed below are the main rights of the owner of a privatized apartment, namely:
- free alienation of the object to third parties or close relatives (sale, donation, exchange, etc.);
- conclusion of any property transaction (rent, transfer for free use);
- bequest of an apartment or its transfer by inheritance to the owner’s successors after his death;
- provision of housing on bail;
- registration of third parties in residential premises;
- etc.
It should be noted that the list of housing rights a citizen has is influenced by the presence or absence of other co-owners participating with him in the privatization procedure. In this case, the person will be limited in his rights.
For example, he will be able to sell his own share of an apartment to third parties only with the consent of the remaining owners. They also have the primary right to repurchase this share. Without receiving a written refusal from each of the co-owners of the home, a citizen does not have the legal right to sell the share to other persons.
Regardless of the basis for privatization (free or paid), the scope of powers of each co-owner is equal, that is, the same. Carrying out various transactions for the alienation of an apartment also requires consent from all owners.
If housing is leased or rented, the resulting payment must be distributed among the co-owners in amounts that are proportional to their shares.
Interesting article : Drawing up a statement of claim for recognition of property rights.
Owner's responsibilities
In addition to the rights to free disposal and ownership of housing acquired as a result of privatization, a citizen receives obligations to pay utility bills, taxes, as well as monetary compensation in the event of damage to neighbors (for example, flooding of the lower apartment).
Rights of minor owners
Often, a citizen who has not reached the full age of 18, as well as a partially or completely incompetent person, can be either the sole owner of a privatized object or one of the co-owners in common ownership. However, until he reaches adulthood, he cannot freely dispose of his own property.
Children are able to carry out certain transactions with an apartment with the help of representatives:
- guardians (for a child under fourteen years of age);
- parents;
- trustees (for a child over 14 years old, but not fully 18 years old);
- adoptive parents.
In this case, the child’s representatives must take into account the following nuances:
- To carry out any transaction, it is mandatory to obtain permission from the PLO;
- transfer of a child's property to a representative is impossible.
Rights of the refuser
It is necessary to distinguish those who refused to participate in privatization from those who refused the privatized apartment. The first, when carrying out privatization, represent a refusal .
They do not lose their right of residence , but, according to the provisions of the Law “On Privatization,” they can subsequently take part in another privatization , becoming home owners.
If a citizen, in accordance with the norms of the Laws “On the Entry into Action of Housing Codes” and “On Privatization,” refused a privatized apartment , handing it over to the state or municipality, then he remains a party to the social rental agreement and has the same housing rights as before privatization . The peculiarity is that he will no longer be able to take part in it .
The law provides for only one attempt for citizens. The exception is for minors : having reached maturity, they again receive the right if the terms for the free distribution of apartments have not expired by that time.
The owner's rights are the most complete and provide the opportunity to dispose of the apartment at his own discretion. We must not forget that property obliges the payment of taxes and other payments, compliance with the rights of other owners and neighbors.
Who is the heir?
the person who entered into a social tenancy agreement may become the heir .
In any case, whether to privatize housing or not is up to the tenant to decide. Of course, it would be a good idea to consult with an experienced lawyer the day before, especially if you are not particularly knowledgeable in legal matters. The services of a lawyer will also be required when drawing up an agreement on the procedure for using the apartment - after all, as they say, the most boring notary is better than the most fun court.
Where to start privatization, what documents are needed for this and who has the right to privatization, read the materials on our website.
