Home / Housing disputes / Allocation of a share in an apartment in kind
Common shared ownership of an apartment requires not one, but several citizen-owners. Often people want to become the owners of a separate part of their housing, which means they ask the question - how to do this in the case of common ownership of a residential property?
Allocation of a share in kind is a legal procedure aimed at assigning to a specific person the right to dispose of part of an apartment. The interested party ensures complete autonomy of the separate room from other parts of the apartment. The nuances of the formation of shares are determined by Art. 252 of the Civil Code of the Russian Federation.
The modern allocation of a share in kind from the common shared ownership in an apartment is achieved through:
- establishing the procedure for using the apartment (for example, kitchen, bathroom, storage room, corridor);
- division of shares in joint property of spouses;
- allocation of part of the apartment for further sale or donation to third parties.
Expert opinion
Semyon Frolov
Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.
The first option is standard: the apartment is not divided into autonomous parts, since it has a specific redevelopment. The parties negotiate what share (room) they will allocate to one of them, and what parts of the apartment will be in common shared ownership.
The second option is suitable for dividing a jointly owned apartment between spouses. During a divorce, the husband and wife draw up so-called “ideal” shares - given that the property is divided equally, each will receive ½ of the apartment, and subsequently will be able to dispose of it at their own discretion.
The legal owner, if he owns the apartment solely, can also allocate a share. Suppose, if he wants to sell or donate not the entire apartment, but only part of it. Appropriate for “gifts” to close relatives.
✅ Is it possible to allocate a share in kind in an apartment?
Our society knows many examples of shared ownership of real estate. It means that the owners own the housing in equal proportions, but separate shares are not allocated.
Example 1
The couple divorced. The common apartment purchased during marriage also had to be divided. As a result, the joint property of the spouses turned into shared property - where the husband and wife had equal shares. However, the shares may not be equal, for example, if the wife remains with the child or the husband’s contribution to the arrangement of the apartment was significantly greater.
Example 2
Marya Vasilievna died. After her death, there were three applicants for the apartment - two sons and a daughter. Since there are several heirs, the housing is divided among everyone. According to the law, the inheritance goes to candidates from the same line in equal parts. This means that the apartment will become a common shared property, where each of the children will have 1/3 of the share.
Civil legislation in Art. 252 of the Civil Code of the Russian Federation allows for the option of allocating a share in kind , but subject to a number of conditions. The main one is that housing must remain suitable for living. Simply put, no one will allow you to break down walls and “capture” square meters of your neighbors.
Required documents
Before going to court, the plaintiff must prepare a complete package of documents. What documents are needed for this:
- Identification document - passport, birth certificate of children.
- Documents for the apartment - technical passport, extract from the Unified State Register of Real Estate, which contains cadastral data for this property.
- Expert - assessment of residential premises by BTI specialists, and an act of the planned allocation of shares must be attached.
- Receipt for payment for the service;
- Documents confirming ownership of this apartment: purchase and sale agreement, certificate of inheritance, agreement of exchange or gift, etc.
Take the trouble to make copies of all the originals in advance, since the specialist will create his package only from them. Be prepared for a long wait, as the process can take anywhere from two months to six months.
✅ In what cases is this necessary?
Very often, contradictions arise between apartment owners. The pursuit of personal goals may not please others, which means the apartment will instantly become a subject of dispute.
When it makes sense to allocate a share in kind:
- desire to sell your share (for example, a daughter got married and wants to move away from her parents);
- reluctance to live under the same roof with the other co-owners-tenants;
- intention to dispose of one’s share without regard to others;
- disputes with other apartment owners.
It should be noted that the allocation of a share in kind is the legal right of a citizen. Even if housing has recently become common property, the owner may demand the allocation of his share regardless of the wishes of the others. The most important thing is to adhere to the terms of registration and not to violate the requirements of the law.
Terms of consideration in court
Most often, the consideration of such cases takes from two to six months, but in special cases they can take much longer. Eg:
- independent examination of the apartment - up to a month
- collection of necessary documents and certificates - up to a month
- examination of the statement of claim by the court - 5 working days (an incorrectly drawn up application will be rejected)
- preliminary hearings - scheduled one month after filing the claim
- hearings - from 2 to 6 months
- time to appeal - a month
As a result: if the defendant does not delay the process, the process will last from a couple of months to a year. It should also be remembered that the participation of a qualified lawyer on both sides has a significant impact on the duration.
Due to frequent updates to legislation and the legal uniqueness of each situation, we recommend obtaining a free telephone consultation with a lawyer. You can ask your question by calling the hotline number 8 (800) 555-40-36 or write it in the form below.
✅ How to determine the share in an apartment if the property is joint?
Provisions of Art. 244 of the Civil Code of the Russian Federation determines that common property can be not only shared, but also joint - for example, owned by spouses.
The size of the shares is not determined, but this does not prevent them from owning and using the apartment together... Until the division of property occurs during a divorce. How to allocate a share in the joint property of spouses?
The legislation determines that the size of shares is considered equal, unless otherwise provided by agreement of the parties . For example, if the spouses drew up a marriage contract, where they indicated that the husband owns 70% of the apartment, and the wife only 30%, then in the event of a divorce, the allocation of shares will be 7/10 to 3/10, i.e. the spouse will be able to dispose of a larger share.
Although, by law or through the court, the apartment would be divided into equal parts - ½ for the husband and ½ for the wife.
Features and nuances
You can give a share to your wife if the owner is one husband. First, it is necessary to allocate the marital shares, and then gift them to the wife. But if a woman already has the right to ½ housing, then there is no need to carry out the procedure.
Allocation of spousal share in property acquired during marriage
When only the husband is the owner, he has the right to set any size of share. At the same time, he does not need to obtain permission from the other co-owners, since the donation is a gratuitous transaction.
When drawing up a gift agreement, you must go to an employee of a notary agency and have the document certified. Next, the alienation of the share is registered in Rosreestr.
If a man decides to give a share to his ex-wife, then the woman will need to pay income tax.
✅ When is allocation of a share impossible?
There is also the opposite situation, in which allocating a share in an apartment is not possible.
You cannot determine shares when:
- Decorating in kind will create a threat of collapse of load-bearing structures and/or make it difficult to access common areas in the apartment. For example, if, as a result of redevelopment, residents will not be able to get into the kitchen or bathroom, this is considered a gross violation of housing standards.
- The allocation violates the interests of individual citizens or organizations (creditors, dependents, disabled people).
- The newly formed residential premises (rooms) will become unsuitable for human habitation, which is a violation of Art. 16 Housing Code of the Russian Federation.
Practice shows that allocation in kind is difficult and does not always pay off. Therefore, the second option is allowed - compensation in monetary or other equivalent.
Price
The cost of the state fee for determining the share in an apartment through the court is not the most budget-friendly option for solving the problem. Lawyers disagree on how this state duty should be calculated.
One group of lawyers insists that such a group of claims is of a non-property nature, and therefore cannot cost more than 300 rubles. But the second group of lawyers, and these are the majority, are convinced that the cost of such a state duty should be calculated from the price of the claim, that is, from the cadastral value of the formed share.
That is, before paying the cost of the claim, it is necessary to order an assessment of the common property. The minimum cost of a statement of claim can be 300 rubles, the maximum – 60,000 rubles.
It is worth understanding that if the plaintiff pays the minimum 300 rubles, and as a result it turns out that the cost of the claim is much higher, the court simply will not consider this application until the missing part of the state duty is paid.
✅ Options for dividing a jointly owned apartment
So, the decision to divide the apartment has been made, there is no turning back - how to allocate shares from a practical point of view?
