Allocation of a share in kind of a land plot from common shared ownership in 2021

If a participant in shared ownership wishes to obtain rights to a part of the plot for sole use, then he needs to allocate a share in kind.

The decision to allocate a share in kind of a land plot from common shared ownership is usually made when the co-owners cannot agree on the joint use of the land, and the initiator of the allocation of the share does not want to sell his share to another owner. How to correctly allocate a share in kind in 2021?

The legislative framework

In Art. 252 of the Land Code of the Russian Federation clearly states how to divide property, including a land plot that is in shared ownership:

the plot can be divided between all participants only if there is an agreement between them;
an interested person (participant in shared ownership) has the right to demand the allocation of his share from the common property;
if the participants fail to reach an agreement on the allocation of a share, then the interested party has the right to file a claim for the allocation of the share in kind to the court;
if, according to the law, it is impossible to allocate a share in kind, then the owner who intends to allocate a share in kind must be paid the cost of his share by other participants in shared ownership;
if a co-owner receives compensation for his share, then he loses the right to his share in the common property.

How is a section different from a section?

It is necessary to distinguish between the allocation of land in kind and the division of a land plot (ZU).

Allocation in kind is the allocation of a separate plot of land from common shared ownership. At the same time, according to Art. 11.5 of the Land Code of the Russian Federation, the remaining primary plot will continue to be the property of the remaining co-owners, and the new secondary plot will become the personal possession of the one to whom the share was allocated.

Allocation, unlike partition, is possible only from shared ownership.

The division of a land plot implies the termination of joint or shared ownership of the primary plot and the formation of new independent parts. In this case, the entire territory is divided equally between all owners (or into unequal parts if the shares are not equal) and new secondary shares are created, completely independent from each other. Each secondary plot of land, in accordance with Article 11.4 of the Land Code of the Russian Federation, is assigned its own unique cadastral number.

So, after the allocation of a share, the primary plot remains, only its borders change, and after the division it is actually liquidated, and in its place several new independent land plots are created.

What is needed to allocate a share of land?

If all co-owners are not against the fact that one of them wants to allocate a share in kind, then we need to consider the procedure for allocating a share of a land plot without buildings:

Carry out the surveying procedure. A land plot must have its boundaries specified, so if the plot has no boundaries, it cannot be divided. You can check whether the boundaries have been clarified or not through the public cadastral map: you need to enter the cadastral number of the land plot and click “Search”. If the boundaries are highlighted in yellow, this means that the land plot is demarcated. If the boundaries are not marked, then you need to do land surveying. And only after this can a share in kind be allocated.
Call surveyors to the land plot to check the boundaries, after which you can safely divide the land plot.
When the boundaries are clarified, the interested party needs to contact a cadastral engineer who will prepare a boundary plan.
Submit the prepared boundary plan to Rosreestr (documents can be submitted by both the applicant and the cadastral engineer), where after some time the applicant receives an extract from the Unified State Register of Real Estate. The following documents must be submitted to Rosreestr for the boundary plan: an application of the established form, the applicant’s passport, cadastral passport, an extract from the Unified State Register of Real Estate on the ownership of the plot. If a proxy will act on behalf of the applicant, then you will additionally need to prepare a notarized power of attorney, as well as a civil passport of the proxy.

How to divide the land

Current legislation provides that several people may have the right to own a plot of land. If the share for each owner is established, then such real estate is in common shared ownership. Despite the fact that the right to own such property has many advantages, owners often come to the conclusion about dividing it.

This process is not an easy task, given that co-owners do not always have a common position regarding this issue or that there are buildings on the land plot.

The division of common shared ownership of a land plot can take place in two ways: voluntarily or judicially.

Allocation conditions

The allocation of a part of a land plot from the whole must be carried out taking into account the following rules:

the newly formed plot must have free passage and passage for transport;
it is important to respect the boundaries of neighbors so that there are no problems in the future;
the size of the plot should not be less than the minimum size according to the standards, and if this is not possible, then the initiator of the allocation of the share must receive compensation. Depending on the location of the site, the minimum size may vary. Depending on the purpose of the land, the minimum size for gardening is 4 acres, for farming - 15 acres;
the actual size of the allocated part of the plot may differ from the ideal proportion.

The complexities of contested land divisions

In the process of considering the issue of dividing a plot, the original size of the plot and the area of each newly formed plot are taken into account. If the new plots turn out to be smaller than the permissible minimum size, the court will refuse to satisfy the claim.

If the judge establishes the indivisibility of the disputed object, a new procedure for use may be determined, taking into account the interests of all parties. The land is listed as shared ownership with the possibility of fencing its own part, erecting buildings and using it for the needs of a specific owner, however, in order to carry out legally significant actions, the issue will have to be resolved with the other owners of the entire object.

The outcome of legal proceedings on land issues largely depends on the justifications presented in the statement of claim and the correctness of the document.

The plaintiff's statement must include:

Information about the court where the owner applied. The place of submission is determined by the address of the territorial affiliation of the allotment.
Cost of claim.
Information about the plaintiff and defendants (they are the remaining owners of the land plot).
Substantive information – about the grounds for obtaining the right to a real estate property, its intended use, and establishing the scope of the right to ownership.
Reasons for filing a claim and measures taken as part of pre-trial settlement.
The applicant's requirements and legislative references giving the right to file a claim.
List of applications.
Date and signature of the applicant with transcript.

Each situation related to land disputes requires immersion in the details and knowledge of the nuances of litigation. To increase the chances of a successful resolution of the dispute, it is strongly recommended to contact a legal organization and receive qualified assistance.

In order for the claim to be accepted for consideration and approved by the judge, it is better to entrust the drafting of the document to a lawyer on land issues and consult on the list of documentation that will help convince the court of the correctness of the plaintiff’s position:

plaintiff's passport;
title papers for the disputed area;
cadastral passport and technical documentation;
opinion of an independent expert on the valuation of real estate;
receipt with paid court fee.

Legal costs are directly related to the value of the disputed property and the valuation of the share. The calculation is based on determining a percentage of the claim price, i.e. the estimated value of part of the plot.

Deadlines for allocating a share in kind of a land plot

To allocate a share of a land plot in kind, the interested party will have to spend a lot of time:

to reach an agreement between all owners (notification of the upcoming allocation of shares) - from 1 to 3 weeks, and if an agreement cannot be reached, then you will have to go to court;
for carrying out boundary work and preparing technical documentation – 2–4 weeks (depending on the workload of the BTI and the speed of work of the cadastral engineer);
to register ownership of a newly formed land plot in Rosreestr - 14 days from the date of submission of the application and all necessary documents.

It turns out that it may take from 4 to 9 weeks to allocate a share in kind to a co-owner of a land plot.

Partition on a voluntary basis

A voluntary procedure is primarily characterized by the consent of all owners of the disputed property to such a division. This procedure can be quite varied, for example, when allocating shares, one participant will receive a house and the land under it, and the second will receive a large part of the land plot.

The order of this process, as well as the order of actions, depend on many factors such as:

area of allocated area;
the total size of the land plot, since in each locality the minimum dimensions of the boundaries of plots are established;
its intended purpose, etc.

Important! Shares of a land plot can be established by the owners at the stage of its acquisition. If such actions were not carried out, and the division is impossible, then the division will occur equally both in kind and in the legal sense.

Each newly created plot has certain limits in its size, and therefore the division of the specified real estate may be unfair in relation to individual owners.

Example: Dividing an allotment into three owners is impossible due to the non-compliance of the minimum provided by regional rules with any of the allocated areas. In this case, one of the participants can claim monetary compensation for his share, and the land will be divided among the two remaining owners. The third will receive the agreed compensation taking into account the market price of the plot, but will lose the right to common real estate.

The size of the land plot when dividing the land plot

In order to begin the procedure for allocating a share of a land plot, it is first necessary to determine the area of the newly formed land plot, which should not be less or more than that established by law.

In each region of the Russian Federation, local governments have established their own maximum and minimum permissible sizes for the specified areas. Thus, in the Moscow region the following standards are defined for plots allocated from joint ownership:

For agricultural land – from 2 to 4 hectares;
For horticultural needs - from 0.06 to 0.15 hectares;
On lands for establishing a vegetable garden - from 0.04 to 0.1 hectares;
To build a summer house - from 0.06 to 0.25 hectares.

Partition process

If the owners find common ground on the issue of dividing the common land plot, the latter will need to take the following actions:

Determine the boundaries of newly created land plots, draw up land survey plans and approve them;
These documents are subject to submission to the administration authorities at the location of the allotment for subsequent approval by the head of the department of the draft new borders;
A division agreement is concluded between the parties, certified by a notary;
After completing these procedures, a full package of documents is submitted to the Registration Chamber or multifunctional center for registering ownership of new plots.

To complete this procedure, the following package of documents is submitted to the Registration Chamber:

Documents certifying ownership of real estate, for example, a purchase and sale agreement or a privatization act;
Cadastral documentation of the site;
Division agreement certified by a notary;
Written consent of persons related to the disputed plot, for example, banking organizations, if the plot is pledged to the latter;
Documents confirming payment of the state duty.

Sample voluntary separation agreement

The procedure for the voluntary division of a land plot by participants in shared ownership must necessarily be accompanied by the preparation and execution of an appropriate agreement.

The document is drawn up in writing and reflects all essential conditions and data. You will need to indicate:

Date and place of drawing up the agreement;
Full names of the parties, their passport details, registration and residence addresses;
Specifications for a land plot: information about the right; register and cadastral numbers; special purpose; location; square;
The achieved conditions for dividing the plot are described: to whom, in what size, under what conditions. Compensation and costs for processing changes are also stipulated;
Signatures of the parties;
Notarization.

The sample agreement presented below can be used for information in a simple dispute, but to draw up a more complex document, it is better to seek help from experienced lawyers. Consultation with our specialists on the website is completely free!

Allocation of a share if it was not possible to reach an agreement with other co-owners

If the remaining co-owners do not give their consent to the allocation of the share of one of the participants, then you need to move on to the next stage and find out how to allocate a share of the land plot from the common shared ownership in the absence of an agreement.

To do this, you need to go to court with a statement of claim for the allocation of a share. In the document, it is important to indicate what grounds the plaintiff has for allocating a share, on what right he owns part of the plot, in what size, what is the essence of the dispute, and whether he tried to resolve the conflict peacefully.

If the court does not have any obstacles to denying the claim (the rights and legitimate interests of third parties will not be violated, the formed plot will comply with all rules and regulations, the category of land will not change), then the plaintiff will receive a positive decision on the forced allocation of the share actually. The statement of claim is filed with the district court at the location of the property.

The role of the expert in court proceedings

During a trial on the forced division of a land plot, the judge can complete the process only if the case file contains the opinion of independent experts on the results of the land management examination. The powers of the expert organization include:

determination of the boundaries of the allocated land plot;
its legal status;
building control lines, etc.

After studying the characteristics of the disputed real estate, experts will offer several of the best options regarding its division. At the same time, experts act strictly with the task assigned to them by the court and have the right to go beyond its limits only with a reasoned justification about the impossibility of giving an opinion without an expanded interpretation of the problem.

In addition, this examination also determines the procedure for dividing buildings that are located on the disputed site, however, from a technical point of view, this is not always possible. Thus, in order to recognize part of a home as suitable for living, certain conditions must be met, such as isolation, the presence of a separate entrance, communications and other amenities. As a rule, experts, even at the initial stage of building houses, offer project options that determine the possibility of its future division, but this happens extremely rarely. Thus, when dividing a land plot, the buildings located on it are in most cases indivisible.

After completing the expert assessment, specialists offer several methods for dividing the disputed property; the owners of such property will only have to choose the most suitable one. If none of the options meets the expectations of the parties, the court will make its own choice, however, such a decision can be appealed.

Arbitrage practice

Judicial practice in cases concerning the allocation of a share of a plot in kind from joint property boils down to the fact that if the other co-owners have no legal grounds for refusal, and also if no encumbrances are imposed on the plot, then the judge takes the side of the plaintiff.

If the share in the common property is too small to be allocated, then the judge makes a decision on the forced payment of monetary compensation to the plaintiff by the remaining owners.

Let's look at an example: a grandmother left a plot of land without buildings with a total size of 6 acres as an inheritance to 3 grandchildren . When the grandchildren entered into inheritance, they registered the plot as common property. But after some time, one of them decided to sell his share of the plot because he needed money for treatment.

He approached the other two co-owners, but they refused to share the plot for the reason that they were already seriously engaged in gardening on it. Then the grandson decided to go to court with a claim for the allocation of a share.

The judge granted his claim, but partially - made a decision stating that the defendants (the remaining co-owners) would have to pay the plaintiff financial compensation for his share.

The allocation of a share in this case would have been impossible, since the size of the allocated share was too small. Thus, a plot of 2 acres in size cannot be registered in the cadastral register.

It is possible to allocate a share of a land plot in kind from joint shared ownership either by agreement of all co-owners of the plot or by a court decision.

It is imperative that you first carry out land surveying by contacting the BTI, and then submit documents for registration of property rights to Rosreestr.

If the size of the future plot formed is less than the established norm, then the one who wants to allocate a share will only be able to receive monetary compensation from the remaining co-owners of the plot.

With this outcome, the remaining owners will take ownership of the land, and the co-owner who receives compensation will lose such a right.

Algorithm for division through court

The process of forced division of an allotment through the court occurs in the following order:

The person initiating the division determines the size of the share of each owner of the disputed land plot, as well as the number of such shares commensurate with the number of owners.
Next, the interested party draws up a statement of claim, the subject of which is a demand for the allocation of a part of the disputed land plot to the latter.
After receiving the claim, the court determines the possibility of accepting it for consideration. If the document fully complies with all procedural norms, the judge sets a date for the hearing of the case and notifies all parties to the process.
The case is heard on the merits of the stated claims and the evidence provided, after which a reasoned decision is made to satisfy the claims or to refuse it.
If the court makes a positive decision, the co-owners of the disputed real estate provide it, along with other necessary documents, to the Registration Chamber to formalize ownership of the redistributed shares.

IMPORTANT: If it is impossible for the court and the parties to clarify the controversial issues. Related to the real or legal division of land, such questions can be raised before an expert institution. Regarding the division of a plot, a land management examination can be assigned (if there are no buildings on the plot) or a construction and technical examination, if various buildings and structures fall under the dispute over the division.

Sale of land in shared ownership

Any of the owners can dispose of their share. And if we are talking about a will, the owner is not obliged to notify anyone to whom he is transferring the land by inheritance. If he plans to sell his plot, the procedure turns out to be much more complicated.

The law assigns the right of first refusal to purchase a share to other owners of the same plot. Therefore, before putting the land up for sale, the owner should discuss this issue with the co-owners. Firstly, clarify their consent to the sale, and secondly, offer them to buy out their part. If there are buildings on the land, their sale or lease is carried out according to the same rule: unauthorized persons can lay claim to the object only if the co-owners refuse to buy or rent it.

The law also defines the sales procedure.

1. Preparation of notification. An owner who wants to sell his share must notify the other co-owners in writing by sending them a notice. This notice is prepared by a notary, indicating the cost of the share and other conditions of sale.

2. Meeting the deadline. It is one month. During this time, the co-owners who received the notice must make a decision to purchase. If they do not buy the proposed share within a month, the owner may look for another buyer. The waiting period will be shortened if the co-owners waive their pre-emptive right to buy out in writing, thereby agreeing to the free sale of part of the plot.

3. Obtaining a certificate. It is issued by a notary as confirmation of the notification being sent to other land owners. If they refused to receive the notification, instead of a certificate, the notary will issue a certificate to the applicant. Both documents have the same legal force and will be required to prepare documents for the sale in Rosreestr.

“It is important for the seller to take into account that the conditions he offers for the co-owners of the site and other buyers must be the same,” explains Angelina Grigorievskaya. - The law prohibits offering co-owners one amount, but in reality selling the share for less. In this case, the transaction may be declared invalid.”

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Preliminary procedures

Make sure the partition option is available. Newly created plots must comply in size and purpose with the requirements of the law (urban planning, land, civil legislation). Minimum and maximum dimensions can be obtained from the authorities in the field of architecture and construction.

Check whether the boundaries have been established and whether the cadastral registration of the original land plot has been completed. If not, first put in order the documents with the land plot to be divided.

Selling a house on a plot of shared ownership

The house, like the plot itself, is shared ownership, so the law limits its free sale. Property can be sold without restrictions only if all owners agree with this decision. If only one wants to sell their part, it is important to follow the procedure.

First of all, offer your share for redemption to other owners or only one of them. According to the law, it is not necessary to notify everyone if one has already agreed to buy a share. If such an agreement is reached, the transaction can be carried out. At the same time, the opinion of others does not matter: they cannot challenge or hinder the sale.

The most unfavorable option is when the co-owners do not consent to the sale. In this case, you can proceed in two ways.

Service of notice

Co-owners must read the notice and report their decision within a month. But what if they refuse to receive this notification? In this case, it is sent by registered mail, accompanied by a return receipt form.

It is not the property owner who prepares and sends the notice, but a notary. The specialist draws up a document indicating the terms of sale and sends it to the co-owner. The notary will record the fact that the co-owner of the house received the notification or refused to receive it. Both documents serve as the basis for the free sale of part of the house and registration of the transaction.

House division

A common house can be divided into parts, for example, into two isolated apartments, and then sell one of them. According to the law, this can be done if the building allows such allocation: independent access to the site can be organized from each created apartment. Apartments must have sufficient space for living, be equipped with a kitchen and bathroom, and comply with other parameters established by law.

The division can be completed by concluding an agreement with a notary or in court. In case of judicial division, an expert examination will be required.

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