The apartment was privatized in marriage to one of the spouses

Married spouses can privatize an apartment for both or one of them. During the divorce process, the pressing issue of dividing privatized real estate arises. During a divorce, only jointly acquired property can be divided in equal or other shares. On the one hand, since the apartment was registered as a property (privatized) during the marriage by one of the spouses, it should be classified as joint property, however, in reality this is not the case. In this case, a family dispute lawyer is simply necessary.

When dividing the property of former spouses, the court is guided by the principle: whether the divorcees had a marriage agreement (contract) or do not have one. If there is, then the division of property is carried out in accordance with the provisions of this document voluntarily concluded by the spouses. Regardless of whether it was signed during marriage or before marriage. In addition, already in marriage, the spouses had the opportunity to make additions to the main provisions of the original agreement, and they will also have legal force if these amendments were made in the manner prescribed by law.

If there is no such agreement between the spouses, then the court is guided by the provisions of the Civil and Family Codes, and in the case of the division of privatized living space, also by the Law of the Russian Federation No. 1541-1 “On Privatization...” dated July 4, 1991. This act states that At its core, a real estate (apartment) privatization agreement is a free transaction. The state transfers ownership of the apartment to the citizen (one of the spouses) free of charge. Therefore, such property is not subject to division during a divorce.

This decision is supported by clause 1 of Art. 36 of the RF IC and clause 2 of Art. 256 of the Civil Code of the Russian Federation, namely: everything acquired as a result of a gratuitous transaction becomes the indivisible property of the person to whom it is registered and cannot be divided during a divorce. The privatization of an apartment is such a transaction. Therefore, it cannot be divided if privatization is registered for only one of the spouses. A similar situation would arise if the apartment was bequeathed to one of the spouses and registered as their property under a will.

In the case where the apartment is privatized for only one of the spouses after a divorce, the family lawyer will be able to suggest to the second spouse only one legal basis for challenging the current situation. Only if the privatization procedure was carried out in violation of the norms of the current legislation, which means that the ownership of the apartment was registered illegally, only then will the second spouse be able to challenge the privatization, and subsequently take part in its legal registration.

Is a privatized apartment considered joint property?

Divorce is a rather unpleasant moment in people's lives. But in addition to the impact on the psychological state, this period is also associated with material aspects related to the division of property.

At this stage, many controversial issues arise. Quite often, spouses who are on the verge of divorce are interested in under what circumstances will a privatized apartment participate in the division of common property?

Inheritance of privatized housing by another spouse

After the death of one of the spouses, all property that belonged to him on the day of death is included in the inheritance.
The surviving spouse, as a general rule, has the same rights to property jointly acquired during marriage, even if it is registered in the name of the deceased. Therefore, he receives from a notary a certificate of title to half of this property. The other half goes to the estate and is divided among all heirs by law or by will. If the deceased owned an apartment that was privatized only by him, it goes entirely to the heirs, and not its ½ share, as in other cases. Thus, the surviving spouse will have less living space than if he participated in privatization, or if the apartment was purchased during marriage.

Types of property

The Family Code of the Russian Federation defines property acquired after marriage as the common property of the spouses, even if it was acquired by them separately. At the same time, the husband and wife have the right to agree in writing among themselves that any things will not become their joint possession.

To do this, when concluding a marriage or at any point in their family life, they draw up a marriage contract and have it certified by a notary.

The rules for recognizing types of property are established by family law and consist of the following provisions:

1. For the general property regime, matrimonial property is distinguished: common and jointly acquired. There are restrictions in contractual relationships.
2. When spouses own jointly, the law recognizes the existence of personal property.

Joint property

Jointly acquired property is property that was acquired and accumulated by spouses over the years of marriage, and its definition does not depend on who is the direct owner: husband or wife. The common property subject to division between spouses includes:

• income received as a result of official work activities;
• income received as profit of an individual entrepreneur;
• profit received from the results of intellectual activity;
• pension income;
• other finances generated from proceeds as compensation for harm or social payments;
• movable property;
• real estate;
• shares and other securities purchased from the family budget.

According to Article 36 of the RF IC, it is customary to recognize the following as personal property of spouses:

1. Things and objects acquired before the registration of marriage. A special case is the situation when one of the spouses sold an apartment before marriage and bought a new one after its conclusion. In such circumstances, the court recognizes as personal property that part of the funds that were received from the sale of housing before the creation of a family, but only if there is documentary evidence of this.
2. Items and real estate received through a donation transaction.
3. Inheritance.
4. Property received by a husband or wife as a result of a gratuitous legal transaction, including as a result of privatization.

Property division procedure

The Family Code of Russia provides for the division of property of spouses upon divorce in pre-trial proceedings. By mutual consent, a husband and wife while still married can agree on the division of jointly acquired property. The main goal of negotiations between them is an agreement that takes into account the interests of each party and eliminates uncertainties on key issues. Successfully conducted and legally competent negotiations will allow you to save on legal fees, attorney fees and other expenses.

In the process of dividing property, it should be taken into account that the court decision may differ significantly from the expectations of the divorcing spouses. The court has sufficient powers to do this.

It is not always possible to reach mutual agreement during the divorce process, especially if it is necessary to take into account the interests of not only the spouses, but also the children. In this case, a claim for division of property is filed through the court. The case is considered within three years after the divorce.

The interests of one of the spouses are given priority by the court if:

- the spouse thoughtlessly spent the jointly acquired property;

- the spouse has no income (only if the reasons are valid, for example due to health).

To divide property through the court, you must follow a similar scheme:

— it is necessary to determine the entire composition of the property with precision. It is advisable to make an inventory of things. In this case, you must indicate the year of purchase and the price of the item;

— Next you need to prepare documents for the court. Their list can be obtained from any lawyer or from the court itself;

- you will need to fill out a statement of claim confirming the division of property. A sample of filling out an application can also be obtained from a lawyer or in court;

- after this, all that remains is to submit an application to the court and take part in the trial, where a decision on the case will be obtained.

Impact of privatization on property rights

Housing privatization is the process of free transfer into the ownership of ordinary citizens of residential areas belonging to the estates of federal or regional significance. The procedure for conducting it depends on many individual conditions, and the impact on property is directly related to the time and circumstances of the transaction.

To determine whether the living space privatized during marriage is the joint property of the spouses, it is necessary to take into account the legal and personal attitude of citizens to the privatization process.

In this case, you need to consider two options:

1. Registration of property for both spouses.
2. Registration of property in the name of one of the spouses.

If we talk about joint privatization of municipal housing, then we can distinguish two types of family property rights:

1. Share. When spouses, as a result of receiving housing free of charge from the state, have their own shares and the right to dispose of them. In this case, they have two certificates in their hands and during a divorce they will not have to share housing.
2. General joint. Then, in the event of termination of the marriage relationship, the spouses will have to resort to dividing the living space and allocating shares.

If an apartment is privatized by one of the spouses before the conclusion of a family relationship, then his other half has no rights to it. Such real estate is recognized by law as personal property. Therefore, even if the second family member registers in the territory of the apartment privatized by the first before marriage, in the event of a divorce, ownership will remain with the latter.

Even joint children born after the family’s registration in the registry office will not be able to claim a share in such an apartment.

The law defines a number of exceptions when one of the spouses will be able to claim part of the cost of such housing during a divorce. When an apartment has significantly increased in price during the marriage, for example, due to reconstruction or major repairs.

Participation of minors

If we talk about whether minors are entitled to a share in the apartment, then the answer is clear - this is decided by the person who privatized the apartment . If, after acquiring ownership of the apartment, it wants to donate the share to a minor, he can do so.

Also, the child automatically becomes the heir to the given living space, unless otherwise provided by the will.

A minor can be registered in this apartment, since the guardianship and trusteeship authority requires that the child must be registered and live in the place where his representative, that is, one of the parents, is registered.

What happens if privatization is registered in the name of one of the spouses?

How will spouses divide an apartment during a divorce if privatization for it was registered during the marriage for one of them? First you need to know that to carry out such a procedure, one of the conditions must be met:

• refusal of the other half to participate in the registration of property;
• participation in privatization again.

However, in spite of everything, the law clearly defines a participant in the privatization of housing as its full owner. This means that such an apartment cannot participate in the division of property, unless otherwise agreed in the marriage contract.

Of course, as in the case of privatization before marriage, the second spouse has the right to present evidence of significant investments made from the general family budget for repairs, reconstruction or redevelopment of housing. Then the confirmed costs can be assessed by the joint property of the family and divided between the spouses. In this case, the half without rights has a chance to obtain ownership of some part of the apartment.

As a result of refusal to privatize housing, the second spouse loses the right to real estate, but retains the legal opportunity to live on its territory until he decides to move out.

Therefore, if the owner decides to sell the apartment, then his ex-other half, possibly with children, will have to share it with a stranger.

As a result, if you answer the question of whether a privatized apartment is joint property of the spouses, then first you need to decide on the procedure for obtaining ownership rights in a particular case. If an apartment was privatized by one of the spouses, it does not matter whether before marriage or during it, then it is his full possession, and, therefore, personal property. Therefore, only housing in the privatization of which the married couple participated jointly can be recognized as jointly acquired real estate.

How is the apartment divided?

In some cases, there is still a right to a share in privatized property. For example, as mentioned above, when investing a significant amount of joint funds in it.

A privatized apartment, like any property of spouses, can be divided peacefully or in court.

Division in court

Is it possible to divide housing privatized by two spouses at once? The answer to this question depends on whether the court recognizes such an apartment as joint property. Courts in different regions treat such cases differently.

There are 2 main positions:

1. Such an apartment is recognized not as joint property, but as shared property - in this case, after a divorce, everyone will receive their share without taking these shares into account when dividing the rest of the property.
2. The apartment is recognized as common joint property. In this case, the shares are assumed to be equal, but the court has the right to increase the share of one of the spouses in the presence of special circumstances (for example, the presence of small children and the need to support them when the parent’s income is low).

In the latter case, the court also has the right to award an apartment to one of the spouses with the obligation to pay the second monetary compensation in proportion to the lost share.

Important! Taking into account the specifics of such housing as an apartment, its division in kind is practically impossible. The only exceptions are apartments with a large area, which can be used jointly by both former spouses after appropriate redevelopment.

It is the division of a privatized apartment in kind that becomes the main method of division carried out in court. The law does not provide other grounds for division between spouses in court regarding privatized real estate.

Section by agreement

The best way to divide marital property is by agreement, because:

• it allows you to take into account all the nuances of existing property relations;
• the costs associated with drawing up an agreement are significantly lower than legal costs;
• Compared to the judicial method, this is a very fast method of division.

To divide a privatized apartment, spouses can conclude:

A prenuptial agreement can be signed during the entire period of marriage or even before its conclusion. In the latter case, the terms of the contract come into force after official registration with the registry office. A special feature of a marriage contract is its wide scope of regulation - it covers all property relations of the spouses up to alimony obligations, although it may concern purely the division of property.

If life circumstances have changed, spouses can make additions to the marriage contract. All changes to the marriage contract are drawn up in writing and recorded by a notary.

If the marriage contract is not fulfilled voluntarily, then you should go to court with a demand for division. When considering the application, the court will rely on the contents of the marriage contract without regard to the provisions of the Family Code on the legal regime of the spouses.

In a marriage contract, spouses can change the legal regime of property from personal to joint and vice versa.

A division agreement can be drawn up during a marriage or after its dissolution and exclusively regulates the division of the spouses’ property (all or only part). This agreement does not require a notarial form, protecting the family budget from additional expenses.

A settlement agreement is signed by the spouses if agreements on division were reached during the trial. A settlement agreement is an agreement approved by the court by issuing an appropriate judicial act. A writ of execution is issued against this act-determination, as well as against a court decision, in the event that one of the spouses evades the division of a privatized apartment. In other words, the spouse can be forced to execute the settlement agreement by bailiffs.

A relatively new type of family law agreement is a mediation agreement. Mediation is a peaceful out-of-court settlement of a dispute under the control of a mediator, the result of which is an agreement on mutual rights and obligations, for example, on the division of joint property. This agreement is considered as an ordinary transaction, therefore, if its terms are violated, the parties have the right to go to court to protect their rights.

Property privatized during marriage

The next article in the series “Encyclopedia of complex cases in the division of property” is devoted to the legal status of property privatized by one of the spouses in marriage.

From this article you will learn how to divide property that is privatized by one of the spouses in marriage.

The answer to the question posed is contained in Art. 36 of the Family Code and Art. 1 Law of the Russian Federation dated July 4, 1991 No. 1541-1 “On the privatization of housing stock in the Russian Federation.” According to Art. 36 of the Family Code of the Russian Federation, property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse) is his property.

Article 1 of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation” establishes that the privatization of residential premises is the free transfer into ownership of citizens of the Russian Federation on a voluntary basis of residential premises occupied by them in the state and municipal housing stock, and for citizens of the Russian Federation who have reserved occupied residential premises - at the place of reservation of residential premises.

Thus, we see that privatization is a free transaction. Under the privatization agreement, the residential premises are transferred to the purchaser free of charge. The acquirer (future owner) does not pay any amount for the purchased residential premises (apartment) and does not make any other consideration (that is, does not provide services, does not perform work, etc. for the transfer of ownership of the residential premises to him) .

Residential premises obtained as a result of privatization do not become the joint property of the spouses, but become the personal property of the spouse who entered into the privatization agreement and received the property on the basis of this agreement.

If both spouses privatize an apartment or other residential premises, then they become shared owners of the residential premises and can dispose of their share in ownership independently of each other. These shares are not divided. The division in this case occurs at the stage of concluding a privatization agreement and registering ownership of shares in the property right.

This is a general rule.

But when dividing the privatized property of spouses, the following points must be taken into account.

1. If an apartment or other residential premises was provided under a social tenancy agreement to both spouses, but one of them refused privatization in favor of the other spouse, then the person who refused privatization retains the indefinite right to live in this residential premises.

Suppose there lived a husband and wife. The husband was provided with living quarters under a social tenancy agreement. Subsequently, he moved his wife in as a family member. Changes have been made to the housing tenancy agreement or order. One day they decided to privatize the apartment. But they decided that only the wife would privatize the apartment, and the husband would refuse privatization in favor of his wife. And so they did. The husband refused privatization. The wife single-handedly privatized the apartment. Registered property rights.

Based on Art. 1 of the Law on Privatization of Housing Stock and Art. 36 of the Family Code of the Russian Federation, the privatized apartment became the sole property of the wife. However, Art. 19 of the Federal Law of December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation” provides that the provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation (this article provides for the loss of the right to use residential premises by a former member of the owner’s family, for example, ex-spouse upon divorce) does not apply to former family members of the owner of the privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.

Additionally, clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation” clarifies that former family members of the owner of a residential premises, named in Article 19 of the Introductory Law, cannot be Clause 2 of Article 292 of the Civil Code of the Russian Federation was applied, since by giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which it would have been impossible (Article 2 of the Law of the Russian Federation of July 4, 1991 N 1541-1 “On the privatization of housing stock in the Russian Federation"), they proceeded from the fact that the right to use this residential premises for them would be of an indefinite nature and, therefore, it should be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, exchange, donation, rent, inheritance).

Features of privatization

Privatization is the free transfer of state and municipal property into the ownership of citizens. You can privatize housing that is rented under a social rental agreement and is also under the departmental management of various state-owned enterprises and institutions. Office residential premises, apartments located in dilapidated buildings, as well as closed military camps are not subject to privatization. You can privatize housing for free only once in your life. The legal rights of spouses to privatized living space are regulated by Article 36 of the RF IC, the Code of Civil Procedure of the Russian Federation, as well as the Law on Housing Privatization No. 151-1.

Privatized apartment - joint property or not?

Family law determines the list of property that is classified as jointly acquired and which is classified as personal. The Civil Code of the Russian Federation (Article 256) and the RF IC (Article 34) establish that everything that was purchased after marriage belongs to common property, which means that property can be divided during a divorce.

The legislator does not pay attention to which spouse spent how much and on what exactly. If the wife was a housewife, and the husband worked, but did not bring much income, they will have equal rights to property.

It also does not matter to whom the apartment purchased during marriage was registered. If it was purchased during marriage, it will be considered community property.

Not all property can be joint. Before marriage, each spouse may have personal property that will no longer be subject to division, that’s why it is personal.

Wife's rights to her husband's privatized apartment

If the husband privatized the apartment before marriage, the wife’s rights extend to the use of the residential premises for her own purposes, but not in violation of the laws of the Russian Federation.

After the divorce , the spouse whose apartment was privatized did not lose his powers , which means he could no longer carry out any actions in the apartment without the permission of its owner.

If the apartment was privatized after a divorce, then the ex-spouse has no rights to it.

Housing during marriage

It is worth drawing the attention of spouses to the fact that property can be recognized as joint property in court if one of the spouses invested their personal funds in the purchase or the couple’s common money was added. In this case, even the personal work of one of the spouses is taken into account.

If, for example, repairs or redevelopment have been carried out, the apartment will already be classified as joint ownership.

It will be useful to save all receipts and receipts, which will be confirmation of joint purchases and personal improvements.

Types of property

Common joint property that is subject to division during divorce proceedings includes:

• income from permanent employment;
• profit from doing business;
• profit from intellectual activity;
• pension payments;
• other funds received through compensation for damage or material assistance).

Jointly acquired property can be:

• movable or immovable property;
• stock;
• securities;
• a share that the spouses acquired using joint funds, and it does not matter to whom it was registered and who contributed funds for it.

1. Property acquired before marriage: it is inviolable. What should you do if your spouse had an apartment before marriage, then he sold it and bought a more spacious apartment? In this case, the court recognizes the spouse as only part of the apartment, which will correspond to the material resources contributed by him, and recognizes the rest as joint property. In this case, it will be necessary to prove that the spouse invested exactly the funds that he received from the sale of his own apartment.
2. Property that was transferred under a gift agreement: in this case, the spouse will not be able to even claim a share of the apartment when dividing the property. You just need to be sure that the deed of gift was drawn up correctly, in accordance with the requirements of Chapter 32 of the Civil Code of the Russian Federation.
3. Property received by inheritance.
4. Property that the spouse received under a gratuitous transaction: this also includes the privatization process. The majority specifically refuse to participate in privatization. For example, a couple lived under a social tenancy agreement, the husband refused privatization, and the wife became the owner of the apartment. In such a situation, the spouse will think that the apartment will remain joint property, because they received it during marriage, but it is now the personal property of the spouse.

Homeowners are required to pay tax on privatized apartments in 2015.

How to privatize the land under an apartment building alone? See here.

What is needed for registration

Privatization issues are dealt with by the housing departments of the local administration or municipality. To privatize an apartment, you need to send an application to the municipal authority, as well as other papers:

• social tenancy agreement, privatization order;
• copies of passports of both spouses, certificate of marriage/divorce;
• copies of birth certificates of children under 14 years of age;
• cadastral and technical passport for residential premises;
• an extract from the house register with information about all registered persons;
• certificate of non-participation in privatization;
• refusal to privatize one/several family members.

If one of the spouses (husband or wife) refuses privatization, then the living space is registered in the name of the second, who becomes the owner. In this case, it is important that the first spouse draws up a written refusal and has it certified by a notary. The application for privatization must clearly state what share of the property will belong to each spouse. This will help avoid problems if the need suddenly arises to divide property. When registering ownership of minor family members, you must obtain permission from the guardianship and trusteeship authorities to conduct the transaction. Sometimes administration staff request additional documentation at their discretion.

Is a privatized apartment a joint property?

The Federal Law “On the privatization of housing stock in the Russian Federation” classifies privatization as a gratuitous transaction. This means that during privatization, one of the spouses registered the apartment in his/her own name, and the property will become his/her personal property.

The apartment will not be included in the list of jointly acquired property and will not be subject to division when dividing property.

However, the spouse can file a claim in court to recognize the privatized apartment as joint property. In his claims, he can justify that during the marriage he invested money in its improvement, which significantly increased its overall value.

Such improvements could be:

In general, a privatized apartment does not belong to the common property of spouses acquired during marriage.

Division of housing during divorce

In practice, spouses often ask whether it is possible to divide a privatized apartment. Let's explain this with examples.

So, the couple received an apartment and were registered in it. They received two certificates that confirm their ownership, respectively, each owns ½ share of the entire property:

1. In this case, there is no need to divide anything, because everyone has their own share, which can be disposed of at their own discretion.
2. If the apartment is registered as common joint property and not shared ownership, then it is better to contact a notary and draw up an agreement on the division of shares of the apartment.

When one of the spouses privatizes an apartment in their own name, the second of them cannot claim to receive a share in the division of property.

Illegal privatization of an apartment

If one of the spouses carried out illegal actions to register ownership of the apartment, then, as a result, if they were proven, he also does not have the right to live in this living space.

This sanction also applies to the second spouse, therefore, in the event of illegal privatization of the apartment, neither of the divorcing spouses can lay claim to the living space.

Here you can download a claim for illegal privatization of an apartment by a husband, wife or other person.

FAQ

In practice, citizens are faced with many questions regarding the division of marital property. Most often, they cannot independently determine how the division will take place and what they can claim in a divorce.

Wife's property

If the housing was privatized for the spouse, the apartment becomes her personal property.

Such property is not subject to division. Accordingly, the spouse will not be able to apply for an apartment.

Article 36 of the RF IC stipulates that when property is received under a gratuitous transaction, it is the property of one of the spouses.

Right to housing

What to do if, when the wife privatized the apartment, the husband gave his consent, but he was not registered there? Will he get a share of the apartment in a divorce?

In this situation, the fact of its registration in the apartment is important. If during privatization he was not registered in the apartment, then he will not have rights to it.

The wife is the full owner and can independently dispose of her property, because a privatized apartment is not subject to division.

But, if the spouse was registered in the apartment and could participate in privatization, but refused, then he can use this apartment until he refuses, but cannot dispose of it.

He will be able to apply only if he makes an investment in the apartment through:

As practice shows, in this case compensation is often paid for the corresponding share.

So, the division of a privatized apartment has many nuances. In practice, the division of property can only be dealt with based on the specific situation and the list of evidence provided to the court.

If you want the privatized apartment to be joint property, you should not refuse privatization, carry it out jointly, and then the privatization agreement can immediately determine everyone’s share in the apartment.

How to divide?

Next, we’ll look at how to divide a privatized apartment during a divorce.

Marriage contract

In addition to the rules on the division of privatized property, there are other acts that can challenge this decision. For example, a marriage contract.

A marriage contract is an agreement that is built on the mutual rights and obligations of the spouses.

It also spells out possible options for the division of property , which is acceptable during a divorce.

Thus, if the marriage contract states whether the spouse has the right to a privatized apartment, despite the fact that the wife privatized the apartment. If yes, then she remains to her husband - this provision must be fulfilled.

challenge this decision only through the court if he provides reasons that prove why the privatized apartment cannot be taken away from him. Otherwise, she will still go to her husband.

Agreement

The agreement is more applicable in our country. It is drawn up by a notary immediately at the time of family life or before a divorce.

The agreement specifies the reason why this or that property after the divorce, regardless of the law, went to one or another spouse. The same applies to privatized apartments.

For example, if an apartment is privatized to the husband during a divorce, and the agreement states that the housing will be transferred to the wife after the divorce, then naturally it will be transferred to the wife.

The drawn up agreement is signed by both parties . The originals are kept by the notary. Copies can be provided to spouses.

This agreement is valid after a divorce for any type of property specified in the agreement .

Through the court

Sometimes, when there are no agreements, and the husband has privatized the apartment for himself, this decision can and even should be challenged in court.

To do this you need:

1. Draw up a statement of claim;
2. Pay the state fee;
3. Send an application with documents to the court.

Do not forget that your package of documents must contain evidence that it is you who should receive a share of the privatized apartment. For example, checks in your name when paying for utilities or purchasing materials for repairs, as well as witness statements.

Is a privatized apartment a joint property?

Everything is not as clear as it seems at first glance.

Privatization refers to a gratuitous method of realizing property rights (as opposed to purchase), which excludes, when dividing, taking into account the funds brought by each spouse into the joint family wallet.

Does the distribution of shares among household members play the main role here?

If one of the couple did not take part in the process of denationalization of the home, having issued a refusal, then he is no longer legally the owner .

In this case, during division, the privatized apartment is not jointly acquired property: it is in sole ownership.

How did my husband privatize the apartment without me, deprived women ask?

Injustice can be restored if the other spouse goes to court with a claim to recognize the housing as jointly owned . for which it is necessary to present evidence in the form of checks, receipts, testimony that the plaintiff participated financially in the reconstruction or renovation of the apartment.

A privatized apartment will be a joint asset acquired during marriage if each of the couple received a share during distribution (this is written in the title documents for the home, and the size of the shares is determined by family members when filing an application for privatization).

What laws govern it?

Issues relating to the marital share in a privatized apartment are considered in the following legislative acts:

It is necessary to clearly distinguish what property belonged to each of the representatives of the family union before marriage, and what was acquired together during the period of marriage.

The procedure for dividing a privatized apartment after a divorce in kind

A typical situation is that a ½ share legally belonging to both spouses becomes the subject of a legal dispute on issues of real division in kind. Alas, such an operation is not applicable to all real estate properties, but in theory it is still possible.

The main reason for such disputes is the reluctance of each of the co-owners of a privatized apartment to part with their share or a financial situation that precludes the purchase of housing in the future.

As a result, the former spouses are forced through the court to divide the apartment in kind in order to somehow use this living space.

Also, an ordinary individual residential building for 2-4 owners, which does not have the status of a multi-apartment building, but according to documents has individual apartments for each owner, may be subject to division. The division of housing privatized by a husband and wife, in this case, will also be a division of a privatized apartment in kind.

Statement of claim

A claim for the division of a privatized apartment is drawn up according to the general requirements of Art. 131-132 Code of Civil Procedure of the Russian Federation. The law does not prescribe any individual characteristics for this category of cases, therefore, correlate the requirements for the content of the claim in Art. 131 of the Code of Civil Procedure of the Russian Federation and the available information will be necessary for an experienced lawyer.

In particular, the claim will need to indicate:

• the names of all participants in the case - from the court to the parties. Full name, location and registration addresses must be indicated.
• third parties must also be indicated: these may be other co-owners or neighbors;
• description of the essence of the dispute - when the marriage was concluded, when it was dissolved, when the apartment was privatized, and so on;
• the essence of the plaintiff’s claims against the defendant, what rights are violated and in what way;
• justification for the need for partition in kind, options for partition;
• request to the court to divide a privatized apartment;
• personal signature and date of signing the document.

Evidence for the claim is indicated taking into account the individuality of each dispute. You should not think that the procedure for filing a claim will be easy and relaxed - this category of cases is almost too tough for those who do not have legal knowledge.

The statement of claim is filed with the court at the location of the residential premises subject to division and without taking into account whether the defendant is registered in the privatized apartment. Disputes regarding the division of real estate will definitely be considered by the district court.

Sample claim

You can download an approximate sample claim for drafting yourself below. This is an example of the simplest requirement for the division of a privatized apartment, while in practice such cases are usually burdened with a mass of various disputes.

We strongly advise you to consult with a lawyer before drawing up an application yourself, especially since the help of our specialists is absolutely free. They will tell you the basic rules and nuances of drawing up a claim and help you correctly formulate your requirements.

Where to submit?

Disputes regarding rights to real estate, including its division, will be considered by district (city) courts.

The claim will be filed at the actual location of the property - a privatized apartment subject to division.

If the claim is combined with other issues relating to the division of property, this will not lead to a change in jurisdiction.

Expenses

The main cost item will be spent on drawing up a statement of claim, legal assistance from specialists and conducting a forensic technical examination to determine the option for partition in kind.

The fee, unlike claims for recognition of property rights, will be calculated according to the rules for non-property claims. In this case, it will be 300 rubles.

After all, the plaintiff does not gain anything as a plus as a result of the division in kind; the court only determines the procedure for using and disposing of the housing. Therefore, such claims cannot be assessed.

Example . The plaintiff made a demand to share the privatized apartment with his ex-wife. He spent 5,000 rubles on drawing up the statement of claim, and another 15,000 was spent on conducting the examination. The fee was 300 rubles. Subsequently, the costs of the examination were divided equally between the parties, and in total the division of the privatized apartment in court cost the plaintiff 12,800 rubles.

What rights do spouses have to own an apartment?

But it is not always possible to immediately recognize who will get what when sharing the goods. It turned out that there are a lot of nuances.

1. If one of the spouses privatized the apartment only for themselves - before marriage. This property is inviolable ( clause 1 of Article 36 of the RF IC ), it is not included in the list of property subject to division . and will remain personal property even after divorce.
2. If the apartment is privatized - married. During the period of marriage, there may be various options for the privatization of a home, and it depends on this, if official family relations are to be terminated, how property rights will be distributed:

Does a husband have the right to his wife’s privatized apartment?

If the apartment was privatized during marriage to one of the spouses, then this gives this family member the sole right of ownership ( Clause 1 of Article 36 of the RF IC ), due to the gratuitous nature of the procedure.

The second representative of the couple . Those who refuse to participate in the denationalization process acquire the right to use living space, but not the right of ownership.

At the time of filling out the application for privatization, shares are determined and fixed. In case of joint privatization in equal shares, both husband and wife receive the same amount of funds upon sale or division; in case of unequal shares, the property is divided according to the size of each part.

Without the consent of one of the spouses

If the apartment is privatized in the name of the husband without the consent of the wife, what rights does the spouse have?

If a person does not consent to the denationalization of housing, then such a tenant must issue a refusal . or the other spouse will obtain permission to privatize the apartment through the court, otherwise it would not have been possible to obtain the apartment into family ownership.

By refusing, that is, by not agreeing, the spouse deprives himself of the right to own part of the living space.

Is it possible to share?

To say for sure whether a privatized apartment is divided during a divorce, you need to consider different situations.

When is division possible?

The division of a privatized apartment after a divorce is possible in some cases. True, these cases are quite rare.

For example, if a spouse who did not take part in the registration proves that expensive repairs were made with his money or he is the direct guardian of children who live in privatized housing.

In such cases, it is permissible to divide a privatized apartment into equal parts .

When is it impossible?

It is impossible to divide when the apartment is privatized for one of the spouses and in the absence of children or when they reach the age of eighteen years, and also if during the divorce the other party also received property, for example, other real estate.

In this case, if the husband privatized the apartment for himself during marriage, it remains with him - the owner of the property.

Also, if it is proven that during the renovation and use of the privatized residential premises one of the spouses did not make any contribution at all, then the apartment will also go to the person privatizing it.

Privatization of a service apartment is possible only through the court, find out what the procedure is. How to go through the procedure for privatizing an apartment at the MFC or through State Services, read here.

A complete list of documents for privatization of an apartment can be found at the link. Here you will find out where to get them.

Features and nuances

When the process of registering housing for family ownership takes place, people do not think that their current incompetence will someday result in them not even having part of the property. For example, with the best intentions, you shouldn’t write a waiver so that the children get more . as a result, this act can severely punish its author.

Another interesting point may be the division of parts of the apartment indicated in the application for privatization.

It is most reasonable to define it in shares; in this case, the living space will be in shared ownership, which is not difficult to carry out a division.

If then you did not pay special attention to this point, and the documents for the apartment include parts instead of shares, then it is worth making a targeted visit to a notary to draw up an agreement on the division of living space .

When registering public housing as family property, there is no need to try to fool your spouse by persuading him to refuse .

It would be more honest to immediately divide the living space equally, in shares, this will save you from going to the notary and from remorse during the division.

Stages of registration

The completed package of documents is submitted to the administration or municipality. Within 60 days, local governments will review the application and respond. Next, they sign a privatization agreement, in which they indicate:

• detailed information about the property;
• information about the parties to the transaction;
• rights and obligations of the parties;
• size of shares for each participant in the transaction.

The last stage of privatization is the transfer of documents for registration to the MFC or Unified State Register. After privatization, the husband and wife or one of the spouses receive a certificate of ownership of the apartment, as well as an agreement on the transfer of housing. Privatization documents must indicate shares, not parts. Only in this case will the spouses be able to divide the property equally if necessary.

Allocation of a share for foreclosure

There are cases when, in order to foreclose on a spouse’s share of jointly acquired marital property, it is necessary to allocate it. This happens in court. As a general rule (if there is no marriage contract), the shares of the spouses are recognized as equal, therefore, when allocating a share, all common property is taken into account. Its value is divided in half, and then the specific property to be transferred to the husband and wife is determined. The cost of a privatized apartment, if the debtor is not its owner, is not taken into account when determining the shares of the spouses and this amount will not be collected.

When registering ownership of housing through privatization, before making a decision, you need to think through the possible consequences in advance, provide for various options and not refuse to participate in this procedure without really compelling reasons.

Final stage

The last step of privatization is to contact Rosreestr or the MFC to re-register housing rights. According to Federal Law No. 218-FZ dated July 13, 2015 (as amended on February 28, 2018) “On State Registration of Real Estate,” state registration is the only acceptable way to confirm the existence of rights to property.

Therefore, from the point of view of the legal sphere, there is no need to be afraid of this procedure: it is fully regulated.

Rosreestr provides a list of documentation similar to when contacting the local government, as well as:

• application for state registration of rights (Application form for registration of property rights);
• receipt of payment of state duty (for 2021 - in the amount of 2 thousand rubles);
• privatization agreement.

In some situations, other documents are also required; government officials must be notified of this. Upon completion of registration, citizens are provided with a document confirming their title.

Law on the division of a privatized apartment

The legislation provides for the right to use real estate on the basis of a social lease agreement, when the actual owner is the state or municipal authorities. Over time, such housing can be privatized with the complete transfer of property rights to a family or an individual.

This is a completely free procedure that allows you to become the owner of real estate. The procedure for dividing property rights will depend on the specifics of privatization.

Table No. 1 “Legal regulation of the issue”