How does joint property of spouses arise?

Myths about shared ownership of residential premises

Let's start from afar and first consider what property rights actually are.

In my opinion, the emergence of some housing conflicts occurs due to confusion of concepts of property.

It is necessary to distinguish between property as an economic category and as a property right.

Property as an economic category characterizes relations in society between citizens regarding material goods, these are things, cars and apartments.

These certain economic relations are subject to legal registration - for example, registration of property rights.

In a general sense, property law is a set of legal norms that establish and regulate relations regarding the appropriation and ownership of material goods to a certain person or persons, the exercise by the owner of the powers of ownership, use and disposal of a thing by his own will and in his own interest, regardless of other persons.

In a narrow sense, the right of ownership is the legally enforceable ability of the owner to own, use and dispose of the thing belonging to him.

Article 209 of the Civil Code of the Russian Federation establishes that the owner has the rights of ownership, use and disposal of the property.

Those. There are three independent rights - possession, use and disposal. Which only together constitute the right of ownership.

Possession is the legally secured ability of the owner to possess a thing, have it physically, and dominate over it.

Here we should not confuse the right of ownership and actual possession of a thing. The owner of a thing can transfer it into the possession of another person, for example, rent it out. Such ownership will also be legal, since it is based on a certain legal basis - title. Possession of a thing not based on a specific title should be considered illegal.

Use is a legally secured opportunity to extract its useful properties from a thing. The owner of a thing exercises the right to use the thing, taking into account its specific consumer properties. The owner of a thing can use it for his own interests. So, the owner lives in the residential premises that belong to him. The owner can transfer the thing for use to other persons. So, in accordance with Art. 30 of the Housing Code, the owner of a residential premises has the right to transfer it for use to other persons on the basis of a rental agreement, free use or on other legal grounds.

An order is a legally enforceable opportunity to determine the legal fate of a thing. The owner can exercise the power to dispose of a thing belonging to him by performing both legal and actual actions. Legally significant actions (legal acts) include the execution by the owner of transactions aimed at alienating a thing, such as, for example, purchase and sale, donation.

The right to dispose of a thing may also belong to the non-owner. So, in accordance with Art. 76 of the Housing Code, the tenant of a residential premises under a social tenancy agreement, with the consent of the landlord and family members living together with him, has the right to transfer it for temporary use under a sublease agreement. But the non-owner is never given the right to dispose of the thing in full.

The current legislation, having granted the owner these powers, also establishes the limits of their exercise . The limits of property rights are the boundaries established by law for the exercise of property rights.

For example, in accordance with Art. 30 of the Housing Code, the limits of the exercise of ownership of residential premises include the need to use it only for its intended purpose, the inadmissibility of mismanagement of residential premises, the need to respect the rights and legitimate interests of neighbors, the rules for the use of residential premises, the rules for maintaining the common property of the owners of premises in an apartment building.

Violations by the owner of the established boundaries of the exercise of property rights entail negative consequences for him, including sometimes in the form of forced termination of property rights (Articles 240, 241, 293 of the Civil Code of the Russian Federation).

And this moment is the second reason why housing conflicts arise - most owners remember their rights - to reside, to use, to dispose of. But they forget about boundaries. Use rights extend until the rights of other owners begin.

With the inclusion of residential premises in civil circulation, relations of common ownership in relation to residential premises increasingly arise: the overwhelming amount of state and municipal housing is privatized into the common property of the citizens living in them; very often apartments are inherited not to one, but to several citizens; Cases of joint acquisition of housing by citizens are widespread. In addition, as will be shown below, in the absence of a marriage contract, spouses, as a rule, have the right of common joint ownership of the purchased home.

Just like other objects of civil legal relations, residential premises can be in common ownership of citizens with the determination of the share of each owner in the right of ownership (shared ownership) or without determination of such shares (joint ownership).

According to the Civil Code of the Russian Federation, common property is assumed to be shared.

Possession and use of residential premises in common shared ownership are carried out by agreement of all co-owners , and in the absence of such an agreement are established by the court. If the parties reach an agreement, separate use of the residential premises is possible, regardless of the size of their share in the common property.

The disposal of property in shared ownership is carried out by agreement of all its participants (clause 1 of Article 246 of the Civil Code of the Russian Federation).

With this we will finish the theoretical part and move on to the practical one.

Many people believe that our legislation is like wood - what is written is what should be.

But if we open the civil or housing code and look more closely, then almost every article looks something like this: “it should be like this, like this and like this... unless otherwise established by law or agreement of the parties.”

Questions regarding shared ownership are no exception.

As I have already said, all questions regarding the disposal of ownership rights in an apartment that has several owners must be resolved with the consent of all co-owners. Those. The law directly states that with shared ownership, citizens must agree and find solutions on all issues. This applies to registration in residential premises, residence, use, etc.

If we want to dispose of and sell or exchange our share, we must first offer the other owners the preemptive right to buy out the share.

Let's look at real situations so that this theory can be applied to practice. Example:

The apartment is in shared ownership - ½ each - father and adult son. The mother is registered and lives in the apartment. After the divorce, the father filed a lawsuit to evict the woman and remove her from the register. The court satisfied the claims.

Why?

After all, the law establishes that family members of the owner have equal rights with him, the owner.

It would seem that they ceased to be spouses, but the woman remained the mother of the second owner.

The court followed this logic - the woman was moved into the apartment and registered there on the basis that she was a member of the man’s family, his wife. After the divorce, she ceased to be a member of his family.

In court, the son expressed his consent to his mother’s residence and registration, but the court rejected these arguments.

Because the move-in by the owner of a residential premises with members of his family and other citizens is the exercise of the right to use and dispose of the residential premises belonging to him, which, by virtue of the above-mentioned rule of law, requires the consent of all co-owners of this residential premises.

Father is against it.

So what, you can be mean like that and evict a person?

No. The court found that the woman owns an apartment that is quite suitable for living.

Therefore, the court considered it possible to evict and deregister the citizen from the disputed apartment.

This decision was upheld on appeal.

An example of the common property of spouses, which is assumed to be shared:

The married couple purchased an apartment and registered it in the husband's name. After a while, their marriage was dissolved. But they did not divide the property, there was no need, the ex-wife remained to live in the apartment, the man left.

After a while, he remarried and registered his wife in this apartment.

The ex-wife filed a claim to recognize the new wife as not having acquired the right to use the apartment and to remove her from the registration register. The right to use an apartment is interconnected with registration at the place of residence, with registration. Since the law obliges citizens to register at their place of residence. Those. If you have the right to reside, register. You cannot deregister and retain the right of residence. This does not apply to nomadic cases - lived here, lived there. Registration is carried out at the place of primary residence of the citizen.

The court satisfied the claims. Despite the fact that the ownership right in the Unified State Register of Real Estate is registered only in the name of the man, since the apartment was acquired during marriage, it is the common property of the spouses and in this case the consent of the ex-wife is also required.

And another very interesting example:

The man and his second wife lived in a one-room apartment. After the man's death, his second wife and adult son took over the inheritance. They became shared owners of ½ share in this apartment.

Apparently, their relationship was not good, since the son filed a claim to move into the apartment and considered it possible for himself and his family to move in. The woman filed a counterclaim - that this family did not acquire the rights to use the apartment and that all of them were deregistered.

The court granted the counterclaim, since it was established that the son’s family had another living space, where they lived all the years. But the size and layout of a one-room apartment do not allow such a number of people to live.

The court regarded the move-in claim as an abuse of his right by the son and denied his claim.

That is, the picture develops in such a way that with shared ownership, any actions must be carried out by agreement with all owners.

An exception is minor children of the shared owner. Children can be moved in and registered in the apartment only at the request of the parent owner.

In other cases, consent will be required.

One of the frequent manipulations is that if you don’t let us live here in peace, then I will rent out my room to visitors from neighboring countries and they will arrange a sweet life for you here.

Will not work. You can move someone in for a fee or free of charge only with the consent of all owners. Even if it's a family member.

And it seems that there is only one way out in such a situation - to go to court. But, as practice shows, the decision will not always be in your favor. Sometimes, a judicial act turns out to be very unexpected and very unpleasant.

And there is a solution for this problem!

As I wrote above, the civil and housing codes directly establish that all issues must be resolved by agreement between all owners.

It is almost impossible for people at the epicenter of the conflict to reach agreement on their own.

Therefore, the law provided for the Mediation Procedure. These are negotiations structured in a certain way, led by an impartial person - a mediator.

The mediation procedure allows people to relieve the intensity of emotions, understand and realize their needs, interests and desires, which ultimately allows them to find the necessary solution.

If we look at the file of court cases, we will see that on average one case is considered for about six months.

Negotiations take an average of 2 weeks, and as a result, the parties receive a document equal in legal force to a judicial act.

Any housing conflict has a solution. The question is: who will make this decision? Are you on your own or will you shift the responsibility to others?

Real estate transactions, New construction

Share building

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Algorithm of actions

A simplified scheme for changing the place of registration is now in effect. Now a person does not need to be deregistered first. It is enough to contact the territorial office of the migration service that serves the address of future residence. The algorithm of actions is as follows:

1. submitting an application and a complete package of documents to the Federal Migration Service at the place of future registration;
2. waiting three days, during which the registration must be completed in full;
3. obtaining a personal passport with a new registration;
4. Migration service employees send a written notification to the FMS at the place of previous residence for the purpose of deregistration.

According to the current norms of the law, if a citizen has previously checked out of the property, then he must re-register the apartment no later than a week after the check-out.

List of required documents

Participants will have to prepare originals and copies of the following documents:

• personal document (birth certificate, passport);
• statement;
• home Book;
• title documents for property;
• written consent of other owners;
• an extract from the Unified State Register of Real Estate, issued a maximum of one month before the date of submission of the application for registration (contains information about all owners).

A separate category of cases includes registration in real estate purchased with maternity capital funds. According to the law, if housing is purchased using government subsidies, then each family member (mother, father and children) must receive equal shares of the property, that is, after paperwork they will become co-owners.

If a mortgage lending agreement is drawn up at the same time, then the owner becomes the citizen in respect of whom the loan was issued. Immediately after signing the loan agreement, the family goes to the notary and the spouse indicated in the loan agreement draws up a guarantee that after full payment of the loan, the property will be divided equally between family members.

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Secondary market transactions

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Preparation of transaction documents

Preparation of documents, verification, negotiations, organizational issues, transaction registration

Important points

Once you have entered into the registration process, you must complete several steps:

1. The permission of all shareholders will be required to register a new tenant.
2. Presence of owners when submitting documents.

One owner can represent the interests of all shareholders. But he must have a document in his hands, notarized, with the signatures of all owners who agree to register a new tenant.

Required Documentation

To register, you will need the usual package of documents, which includes:

• identification document of the citizen (all owners);
• a written application where the co-owners personally write consent to add a new tenant (this is certified by the citizen’s personal signature);
• documentation of shareholders on property rights;
• power of attorney (not always).

Instructions for drawing up an application

The passport office will issue a form that must be filled out according to the sample and presented for consideration. The application must contain the following details:

1. Designer details.
2. The address of the living space in question and its status.
3. Grounds for registration.
4. Permission in writing from all shareholders with a personal signature.

In order not to contact the FMS office, you can get a sample on the government services website or at MFC branches. You can fill out the application in advance or right on the spot in the presence of the employee accepting the documentation.

Permanent registration

Registration is carried out by territorial divisions of the migration service, which accept documents from interested parties, confirm the legality and validity of the stated requirements, and also make new amendments to the current federal registration.

Registration in a house with common shared ownership can occur on the initiative of only one co-owner, but it is necessary to obtain the written consent of the second owner.

Permission to register third citizens is issued in writing without the involvement of witnesses or a notary. It is also necessary to take into account that the permit document is sent to the migration service personally by the co-owner. In addition, the owner must:

• submit a copy and original of your passport;
• personally confirm your consent and its voluntariness to the FMS employee.

This rule does not apply when the owner wishes to register his minor child. In this case, no consent is required. It is enough to warn the co-owner of your intentions. The privilege extends to biological children and adopted children.

Temporary registration

The need to register an outsider temporarily arises only when the minimum period of residence in the apartment is three calendar months.
As a rule, this applies to all cases of concluding a commercial lease agreement for real estate. The second reason is temporary residence in the housing of close relatives of the owners themselves. When applying for temporary registration, the following factors must be taken into account:

1. It is mandatory to obtain written permission from all co-owners. Even if the visiting citizen is related by ties of kinship to all the owners.
2. If the basis of residence is a commercial lease, then it is necessary to conclude an agreement, a copy of which is submitted to the migration service. Another copy must be submitted to the tax office for further calculation of 13% income tax on the profits received.

If co-owners are engaged in renting out real estate together, then taxes can be paid equally to the Federal Tax Service.

Where can I register, and is this necessary?

Every citizen of the Russian Federation is required to have his own permanent place of residence. Registration points allow the state to keep track of where a person currently lives. Registration is the task of every citizen of the Russian Federation, whose responsibilities are enshrined in the code of laws of the country.

You can register yourself and your relatives either permanently or for temporary residence. According to the Government Decree, it is necessary to take into account the fact that registration is only possible in residential buildings. That is, if anywhere in your plot of land there is no territory suitable for annual residence, then you cannot register for registration here.

You can register current residents in your apartment if:

• there is a house on the land plot suitable for year-round living;
• the owner owns an apartment;
• the room is isolated.

How to register a newborn?

If a mother wants to register her newborn baby, and she herself is the owner of the property in question, then there will be no problems. The designer has the right to submit a package of circulars for consideration without the presence of his child. This is how it should be, because the interests of the teenager are represented by legal representatives. If the child is over 14 years old, he must be present during the preparation of the application order and sign. With registration of a temporary appointment, the procedure follows a similar procedure. None of the owners has the right to refuse to register a young child if his mother is registered in the given territory.

And in order to register a spouse on your territory, the permission of all owners of the property in question is required. The agreement does not need to be certified by a notary office.

When the shared property is allocated and separate, that is, it has a separate exit, bathroom and kitchen, then the owner of the property in question has every right to register a new tenant on his territory without the consent of the other owners.

Responsibilities of owners

In addition to rights, each owner of common property also has responsibilities. The main one is respect for the rights of other owners. He must voice his intention to dispose of his share to them, since they have the pre-emptive right to repurchase this share. In addition, if this condition is ignored, the owners can challenge the transaction in court and declare it invalid.

The responsibilities of each apartment owner also include mandatory payments, which are calculated in proportion to the corresponding share:

• taxes on general real estate;
• payments for utilities.

In addition, the shared owner is obliged to comply with sanitary and hygienic standards and eliminate emergency situations, even if he does not live in the apartment.

Please note that evasion of duties is a violation of the law, entailing administrative punishment.

Each of the shared owners of the apartment can change the size of their personal share. For example, one of the owners renovated the premises and equipped it with new equipment. These costs can affect your equity ownership and increase equity, but also increase your tax and utility payments.