The Supreme Court clarified the features of the forced purchase of a share in an apartment during the division of common property

Let's start with the fact that the procedure for common shared ownership is regulated by Article 244 of the Civil Code of the Russian Federation. It is necessary to distinguish between such concepts as shared ownership, when a share is determined for each of the owners, and joint ownership, when the shares are not defined. The disadvantages of joint ownership of real estate are obvious:

1. Without the consent of the co-owners, it is impossible to make repairs or install air conditioning in the apartment;
2. you cannot register yourself or your family members in the apartment unless there is the consent of other participants in shared ownership;
3. the law establishes the right of first refusal - before selling the ownership of his share to a third party, the owner is obliged to offer it to other participants in the property at the price at which it is sold;
4. a share in an apartment represents some virtuality, so selling a share in joint ownership is much more difficult than with a dedicated share;
5. it is not possible to rent out a share in the apartment; this requires an agreement on the joint disposal of property and the allocation of a share in kind;
6. if there is a creditor, there is a possibility of receiving from him a demand for the allocation of the debtor’s share from the common shared property. If the allocation of a share is impossible or other owners object to this, the creditor has the right to demand the sale of the share by the debtor to the remaining participants in the common shared ownership at the market price.

Division of an apartment in shared ownership

Common shared ownership right is the right when the shares of each owner from the common property are determined. Allocation of rights implies the transfer of part of the property in kind through the provision of ownership of a part of the apartment or by paying monetary compensation for this share. The division of an apartment in shared ownership can be carried out in two legal ways:

• Contractual allocation of a share is a division of ownership based on mutual agreement of the parties. Participants can independently reach an agreement on the procedure and conditions for the division of property or contact the judicial authorities.

Important! It is necessary to distinguish between the concepts of division of common property and allocation of a share from common property. In the first case, the division entails the termination of the right of common property, an equal right of ownership to each share arises, but the allocation of a share occurs without the termination of this right; citizens who have separated their property from the common property are subsequently deprived of the right to common property.

• Judicial allocation of a share is made by allocating a share in kind in accordance with a court decision. If a share cannot be allocated due to its insignificance relative to other shares, the owner is awarded monetary compensation from the funds of the remaining shareholders. After receiving compensation, the owner loses his rights to a share in the property.

What is the difference between separation of shares and division of property?

From a legal point of view, separation of a part and division of real estate are completely different concepts.

If a citizen has allocated his own part of the living space, he becomes the owner of the space in which he can live autonomously. The legal status of the remaining neighbors does not change; they remain joint owners.

Division of property means that each resident gets a new premises, which is in his sole possession. Common property ceases to exist as a separate category.

Division of premises in joint ownership

Joint ownership implies the existence of a right when citizens own property jointly without precisely determining the size of shares for each of them. The allocation of a share from joint ownership is carried out after a procedure for determining the size of the shares of all participants, and if there is no indication in this regard in the legislation or agreement of the parties, then the shares of the co-owners are usually considered equal. The procedure for allocating shares in joint ownership corresponds to the procedure for allocating shares in apartments with shared ownership, that is, by contract or by applying to the judicial authorities.

Separation through court

If the parties were unable to reach a common denominator during the negotiations, the owner who wishes to allocate a share in kind must apply to the court with a statement of claim.

• This application contains: Complete information about the applicant himself (passport details, registration);
• Complete information about the property (address, area, description);
• Rules for the use of premises and common areas;
• Technical justification for the possibility of allocation;
• If necessary, the amount of the desired compensation;
• A reasoned request for permission from the court to carry out the separation procedure.

The court will study the information received, listen to the parties' arguments and make a decision.

If the decision is positive for the owner who is going to “stand out”, he needs to register the resulting right. The remaining co-owners will go to register changes in title.

Agreement on determining shares in an apartment

The standard version of the agreement on determining shares between co-owners must contain the following information:

1. Title of the document;
2. place and date of document preparation;
3. Full name, passport and address information, birth information of each party;
4. data about the property - location of the apartment, indicating the full address and size of the total area;
5. details of the certificate of ownership or other title document for the apartment;
6. registration number of the entry in the Unified State Register of Rights to the property;
7. cadastral number of the apartment;
8. the size of the shares of the parties to the agreement;
9. all available information about encumbrances imposed on the common property of the parties to the agreement;
10. the number of copies in which this agreement is drawn up;
11. signatures of each party.

After concluding an agreement on the allocation of shares, the owners must submit an application for state registration of ownership rights, attaching the following documents:

• identification document of the applicant;
• extract from the Unified State Register;
• floor plan of the apartment from BTI;
• receipt of payment of state duty;
• other documents, for example, a power of attorney for a representative.

Important! Like any agreement, the agreement on the determination of shares may be subject to changes, which requires the mutual consent of all co-owners.

A share in the ownership of property that is in shared ownership can be allocated in kind by agreement of all owners. If such an agreement is not reached, the allocation is made through the court (clauses 1, 2, 3 of Article 252 of the Civil Code of the Russian Federation).

Note!

It is impossible to allocate a share in kind if such allocation is not permitted by law or is impossible without disproportionate damage, in particular from indivisible things (a car, a musical instrument), a collection of coins or paintings. In this case, the owner has the right to have other owners pay him the value of his share (Article 133, paragraph 3 of Article 252 of the Civil Code of the Russian Federation; paragraphs 35, 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 01.07 .1996).

The procedure for allocating a share by agreement of all owners

To allocate in kind a share in the right of common ownership by agreement of all owners, we recommend adhering to the following algorithm.

Step 1. Check whether the allocated share meets the established requirements

Depending on the type of property from which the allocation is intended, the allocated share must meet certain requirements. For example, it is possible to allocate a share from an apartment if it is technically possible to transfer to the participant in shared ownership not only residential premises, but also utility rooms (kitchen, bathroom, corridor), and also to equip a separate entrance (Review of judicial practice of the Supreme Court of the Russian Federation; paragraph 12 of the Resolution Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 No. 8; Appeal ruling of the Moscow Regional Court dated June 29, 2015 in case No. 33-15324/2015).

Note. If a share of a residential building or apartment is subject to separation, it may be necessary to carry out reconstruction and (or) redevelopment work to form an isolated premises, for which it is necessary to obtain the appropriate permits and approvals in the prescribed manner.

The land plot formed as a result of the allocation must also comply with the established requirements of land legislation, in particular on the maximum minimum size and location of boundaries (Article 11.9 of the Land Code of the Russian Federation).

Step 2. Form the property to be allocated

If we are talking about allocating a share of a residential building or apartment, it may be necessary to carry out reconstruction and (or) redevelopment work to form an isolated premises, for which it is necessary to obtain the appropriate permits and approvals in the prescribed manner.

You will also need to contact a cadastral engineer to conclude a contract for carrying out cadastral work, as a result of which a technical plan and (or) a boundary plan will be prepared (Clause 7, Part 2, Article 14, Articles 22, 24 of the Law of July 13. 2015 N 218-FZ; part 1 article 29, part 1 article 35 of the Law of July 24, 2007 N 221-FZ).

Technical and boundary plans are prepared, including in electronic form, and are certified by an enhanced qualified electronic signature of the cadastral engineer who prepared such a plan (Part 12, Article 22, Part 12, Article 24 of Law No. 218-FZ).

The technical and boundary plan may be placed for temporary storage in an electronic storage facility maintained by the rights registration authority.

The contract for the performance of cadastral works may provide for the obligation of the cadastral engineer to place the technical and boundary plan prepared by him in the electronic storage (Parts 3, 5 of Article 20 of Law No. 218-FZ).

Note. If a share of a residential building is allocated and in technical terms the allocated residential premises will be called “part of a residential building”, registration of ownership will be possible only in court (Question “On the specifics of the state cadastral registration of real estate objects” (Rosreestr Office for the Moscow Region, 2018)).

Step 3. Conclude an agreement on the allocation of a share in kind

The agreement between the participants in shared ownership must determine the method and conditions for allocating the share of one of them.

As a general rule, when allocating part of the property, the value of such property should be proportional to the allocated share. If the value of the allocated property is disproportionate to the share, the difference must be compensated by monetary payment or other compensation (clauses 3, 4 of Article 252 of the Civil Code of the Russian Federation).

The agreement is drawn up according to the number of co-owners of the real estate and must be signed by each of them. Such an agreement is not required to be notarized.

Step 4. Contact Rosreestr

For cadastral registration of allocated property and registration of changes in property rights, the following documents should be submitted to Rosreestr (Parts 1, 2, Article 14, Parts 1, 4, Clause 3, Part 8, Article 41 of Law N 218-FZ):

1) a statement from each of the co-owners;

2) documents proving the identity of the applicants;

3) agreement on the allocation of a share in kind;

4) legal documents for the original property;

5) a notarized power of attorney, if the documents are submitted by a representative.

If the technical and (or) boundary plan is placed in an electronic storage, the identifying number of the technical plan can be indicated in the application, then its submission will not be required (Part 4 of Article 20 of Law No. 218-FZ).

To register property rights, you must pay a state fee. It is not necessary to submit a document confirming payment of the state fee along with the application. The applicant has the right to do this on his own initiative. However, if there is no information about the payment of the state duty in the State Information System on state and municipal payments, after five days from the date of filing the application, Rosreestr will return the application and the documents attached to it without consideration (Article 17, Part 7, Article 18, Clause 3, Art. 25 of Law No. 218-FZ).

Reference. State duty amount

The amount of the state fee for registering property rights for the allocating co-owner is:

— 350 rub. in case of allocation of a land plot intended, for example, for running a personal subsidiary or dacha farm;

— 2,000 rub. in case of allocation of another property.

The state duty for other co-owners whose shares are changing is 350 rubles.

If it is possible to submit an application and pay the state fee through public service portals and other portals integrated with the Unified Automated Identification of Information System (USIA), the state fee is calculated taking into account the coefficient of 0.7 (clauses 22, 24, 25, 27, clause 1, article 333.33, clause 4, art. 333.35 Tax Code of the Russian Federation).

The application and the necessary documents can be submitted to Rosreestr in one of the following ways (parts 1, 2, 12 of article 18 of Law N 218-FZ; clause 2 of the Procedure, approved by Order of the Ministry of Economic Development of Russia dated November 26, 2015 N 883):

- directly to the Rosreestr branch or through the MFC (regardless of the location of the property according to the list of divisions that carry out reception on an extraterritorial basis posted on the Rosreestr website) or to an authorized person of Rosreestr during on-site reception.

Note. In Moscow and the Moscow region, documents for state registration are accepted only through the MFC, except for acceptance on an extraterritorial basis;

- by postal item with a declared value when forwarding it, a description of the contents and a notification of delivery (in this case, the authenticity of the signature on the application must be notarized, the agreement and power of attorney of the representative must be notarized, and copies of identification documents must be attached);

- in the form of electronic documents via the Internet, for example through the official website of Rosreestr.

Step 5. Get an extract from the Unified State Register of Real Estate

Cadastral registration and state registration of rights are carried out within 10 working days from the date of receipt of the application and documents by Rosreestr, and in the case of submitting documents through the MFC - within 12 working days from the date of receipt of the application. This period begins on the next working day after the date of receipt of documents.

The completed state registration is certified by extracts from the Unified State Register of Real Estate, which can be sent to you, including in electronic form (clauses 5, 6, part 1, article 16, part 1, article 28, part 6, article 62 of Law No. 218 -FZ; Letter of Rosreestr dated August 22, 2017 N 14-10188-GE/17).

Judicial procedure for allocating shares

If it was not possible to reach an agreement on the method and conditions for the allocation of the share of one of the participants in shared ownership with the remaining co-owners, you have the right to demand the allocation in kind of your share from the common property in court (Part 3 of Article 252 of the Civil Code of the Russian Federation).

To do this, we recommend following the following algorithm.

Step 1. Prepare a statement of claim and necessary documents

The statement of claim should describe the property, the share of which is supposed to be allocated (indicate the cadastral number, address, area, other characteristics), the established procedure for using this object between the owners, indicate the part of it that is desired to be allocated against the existing share, as well as the size compensation and its calculation (in case of disproportionality of the allocated share).

The following documents must be attached to the statement of claim (Article 55, Part 1, Article 57, Articles 131, 132 of the Code of Civil Procedure of the Russian Federation; Clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 1980 N 4; Subclause 1 Clause 1 Article 333.19, paragraph 3, paragraph 1, Article 333.20 of the Tax Code of the Russian Federation):

1) legal documents of co-owners for the property;

2) an extract from the Unified State Register of Real Estate on the main characteristics of the property;

3) technical passport or explanation and floor plan (if a residential building or apartment is subject to division);

4) documents confirming the technical possibility of allocating a share in kind (for example, a conclusion from a design organization);

5) other documents confirming your requirements (if available);

6) copies of the statement of claim according to the number of defendants and third parties;

7) a receipt for payment of the state duty, the amount of which is usually calculated based on the price of the claim.

Step 2. File a claim in court and take part in a court hearing

A statement of claim for the allocation of a share from a real estate property is filed with the district court at the location of such an object (Part 1, Article 30 of the Code of Civil Procedure of the Russian Federation).

During the consideration of the case, to resolve the issue of the technical feasibility of the proposed allocation and the proportionality of the allocated part, the court may order construction, technical, land management and assessment examinations (Part 1 of Article 79 of the Code of Civil Procedure of the Russian Federation; Clause 4 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 4).

To resolve a legal dispute, you may need qualified legal assistance, as well as a notarized power of attorney to represent your interests in court. The court may fully or partially recover the costs of paying for the services of a representative, if a corresponding written petition is filed, from the defendant (Articles 185, 185.1 of the Civil Code of the Russian Federation; Part 2 of Article 53, Part 1 of Article 100 of the Civil Procedure Code of the Russian Federation; Clause clauses 2, 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1).

Step 3. Contact Rosreestr and receive an extract from the Unified State Register of Real Estate

By analogy with an out-of-court settlement of the issue, in the event of a positive court decision on the allocation of a share in kind, it is necessary to carry out cadastral registration and registration of changes in ownership rights to the allocated share. To do this, you should submit the documents specified in step 3 of the previous section to Rosreestr. In this case, instead of an agreement on the allocation of a share in kind, it is necessary to submit a court decision that has entered into legal force (Parts 1, 2, Article 14, Parts 1, 4, Clause 4, Part 8, Article 41 of Law N 218-FZ).

The deadlines for cadastral registration and state registration of rights in this case are the same as when concluding an agreement on the allocation of a share in kind (step 4 of the previous section).

Selling a share in an apartment: latest news

In August 2015, a bill was introduced to the State Duma of the Russian Federation on amendments to the Civil Code of the Russian Federation in matters of adjusting the alienation of property in common shared ownership (to date, this bill has not yet been adopted). Thus, the current version of Art. 246 of the Civil Code of the Russian Federation establishes the possibility of disposing of common property at the discretion and agreement of the property participants, including, the norm provides for the right of the owner of the share to independently decide on its alienation. If the legislative initiative is approved, it will be possible to dispose of property in shared ownership only by a court decision. So, if one of the co-owners wants to sell or donate his share, he must apply to the court for the appropriate permission. The exception is cases of leaving a share of property as an inheritance; the legislator gives the right of choice to the owner. The authors of the bill consider its main goal to provide additional guarantees to other participants in common shared ownership, who, by virtue of Article 250 of the Civil Code of the Russian Federation, have a preemptive right to buy out the share being sold. However, now the norm establishes no more than 1 month for this action, which is considered an insignificant period in a situation of raising funds to buy out a share. The participation of the court will allow taking into account the interests of all owners, based on the real needs of the participants and their financial situation.

Expenses

The main costs associated with the trial can be divided into 3 groups.

1. Legal expenses. This group includes the participation of a lawyer in the process, preparing a claim, representation in court, requesting documents, etc.
2. Administrative expenses. Costs for obtaining documents, drawing up a technical plan, etc.
3. Payment of state duty.

The amount of the duty is determined by Art. 333.19 of the Tax Code of the Russian Federation and is calculated based on the cost of the claim.

How is the selection made?

Judicial practice is based on the following norms:

Expert opinion

As a result of the division, two separate living areas are formed. According to Article 16 of the Housing Code of the Russian Federation, rooms are recognized as such. Accordingly, such housing will be recognized as communal - with a shared kitchen and bathroom, but separate living areas . If the owner has no obstacles to the allocation of his share, then he can apply to the authorized bodies to formalize the redevelopment of the apartment and change its purpose to communal use. A share equal to the living space of a separate room is allocated.

Reshetnikova R.N., lawyer

Registration of an allocated share

State registration of rights is carried out by Rosreestr within ten working days (if the set of documents is in order).

As a result, all owners who submitted an application will receive certificates of ownership of the established form.

The registration authority specialist is provided with:

• Statements from all parties to the transaction;
• Applicants' passports;
• A court decision on the allocation that has entered into force (2 copies);
• Receipt for payment of state duty from applicants - optional. This document is not required to be provided, because Rosreestr employees can independently check the fact of payment in a special program.

Isolation methods

There are two procedures for dividing premises into separate real estate objects:

1. By mutual agreement of shareholders - in the presence of a general decision to assign each owner a separate share, delineate residential areas and determine the procedure for using common areas.
2. In the absence of a unanimous decision, the interested party must file a corresponding claim with the judicial authorities. The issue of the possibility of separating isolated rooms and establishing a regime for using common areas, and the technical feasibility of equipping a separate entrance to each apartment is being resolved.

Important: the division of joint property should be distinguished from the allocation of a share, since in the case of the allocation of a separate premises, the formation of a separate real estate object and the registration of the right to it with the state registry authorities do not occur.

Case Study

The Ivanov family lived in a three-room apartment. After the divorce, the former spouses were unable to separate due to the lack of separate living spaces. It also did not work out to exchange housing for two separate ones, since it was impossible to purchase apartments for each without an additional payment due to the price. In this regard, they decided to decide on the allocation of shares. They turned to the notary and signed the corresponding agreement. Since the apartment was on the ground floor, a decision was received from the BTI authorities to redevelop the premises and equip a separate entrance to the entrance. The kitchen and bathroom remained in common use; the premises were transferred to the communal housing fund, for which permits were obtained.

Errors

• It is impossible to allocate a room in a communal apartment, since the living space is already isolated.
• Shareholders will experience difficulties with 1-room housing, since redevelopment and many approvals will be required.
• It is impossible to allocate a share; if one of the owners does not agree, it will be necessary to go to court; one of the owners will not be able to independently determine the procedure for using individual premises.