Problems of joint ownership of a house and land
The situation when several owners own a house and a plot is not simple in itself. Especially when the co-owners are in hostile relationships and often simply cannot come to agreements on everyday issues.
However, since the real estate remains in shared ownership, they often need to make some general decisions regarding:
- registration of new residents;
- carrying out repair activities;
- reconstruction of technical networks.
In complex relationships, this is quite difficult to do, or even impossible, and most owners try to allocate their share by dividing property.
This can be done by separating a part of the house and the territory underneath it, in other words, through real division.
Concepts
The division of plots is expressed in the procedure of redistribution of plots, during which several are formed from one large one. The procedure under consideration is part of land surveying and also relates to geodetic activities. It is carried out in several steps:
- the possibility of carrying out the procedure is determined, compliance with administrative requirements is established;
- work is planned together with a cadastral engineer;
- section of the site;
- paperwork and registration process.
Division of land
To divide a plot of land, you need to contact a company engaged in geodetic activities. Such companies are private, so it is necessary to ensure that they have a license to carry out the work in question. It is also possible to contact the cartography and cadastre department at the local level.
Specialists draw up approximate versions of site plans that will be created; they are based on an extract obtained from accounting records from the State Property Committee. The extract is issued on the basis of the drawn up agreement.
Drawing of land plots and their parts
Questions often arise related to the division of an allotment in kind. This procedure is associated with the division of an allotment through land surveying. The section is made on the ground, so it got its name in kind.
To do this, specialists with the necessary qualifications go to the area to be divided and, using special equipment, mark survey lines. Marks are made in accordance with the previously drawn up plan.
The process is carried out quite carefully, a small error is allowed, which completely depends on the area of the plot. For each category of land, an error is established in accordance with the standards.
Land division plan
For example, when it comes to lands located within the boundaries of settlements, it cannot exceed more than 10 cm.
Persons performing geodetic activities, having established the area of the site and its boundaries, distribute boundary markers and corresponding lines at turning points. Next, the corresponding boundaries of the plots are drawn along such lines.
Fixation and certification of boundaries is carried out by all persons who have an interest in this issue. Such persons are understood to be the owner of the boundary plot and his neighbors.
To submit land surveying acts, an act is drawn up and handed over to the owner of the land. Their locations are marked on the survey plan diagram and cannot change over time. If such signs are changed, the violator is subject to a fine.
At the legislative level, the process under consideration is regulated by the Land Code and other acts adopted at the regional and federal levels.
What is a real partition?
Real division (allocation of shares) is the transfer of parts of the home ownership into the ownership of each participant in the common shared property in proportion to his share.
Division entails the termination of common property for all its participants. The allocation of a share of a house is characterized by the fact that one or more owners leave, while for others the relations of common ownership are preserved.
The division of the house begins with determining the size of the shares and the people who have rights to the share. In case of divorce, the owners of the shares will be the spouses, and in case of inheritance, accordingly, the heirs.
The real division of the house and land is permissible and possible only when legal and technical possibilities exist. Real estate objects, including a residential building and a land plot, can be classified as both divisible and indivisible things.
Donation or purchase and sale of a share of a plot
One of the parties to such a transaction is the owner of the site. The other party will be a person who is not yet the owner.
To complete a transaction, the following documents are required:
- Documents confirming ownership of the property.
- Identification documents of the parties. If the buyer or recipient is a minor, which is permitted by law, then the agreement is signed by his legal representative. For a child under 14 years of age, the legal representative carries out all actions and signs all the documents. If the minor is already 14 years old, then his representative writes the word “agree” in the contract, approving the transaction, and signs the contract.
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How to divide a house? And what can be shared and what cannot?
The actual possibility of dividing a house and land does not always coincide with the legal possibilities. The divisibility of a property, from a legal point of view, has an independent meaning and does not necessarily coincide with the real possibility of dividing walls and rooms.
All existing real estate objects are recognized as physically divisible, but they are legally divisible only if it is possible to divide them into parts in such a way that each part maintains homogeneity, that is, remains “residential” for its intended purpose and so that its use does not violate the rights of others copyright holders and users.
In other words, when dividing a house, each owner must have his own entrance, kitchen, bathroom, etc.
For the correct division of real estate, the law introduced the concept of Signs of residential premises:
- appointment;
- suitability for habitation;
- isolation;
- belonging to the category of immovable objects.
Of course, the last of the signs is the main one, however, the absence of any of the listed signs gives grounds to consider the premises non-residential.
It is unacceptable to divide a house as a result of which an independent part is formed that is not intended for living (for example, a built-in garage or just a kitchen).
Some features
They exist in almost any case in court.
Most often, questions arise if the house and plot:
- They are pledged on the basis of a mortgage agreement.
- Purchased before the wedding.
- Built with money allocated under the maternity capital program.
- Construction of the facility has not been completed (frozen).
Depending on the situation, these features will play a role and directly or indirectly affect the nature of the court decision. It is far from certain that the parties will receive equal shares of the acquired property.
House bought before marriage
In this situation, the property becomes the property of the person who acquired it before the marriage. All property purchased by a person before marriage is his personal property, which means it is not subject to division (Article 256 of the Civil Code of the Russian Federation).
If during the marriage the second spouse spent his personal savings or the costs of reconstructing the house, remodeling or repairs were from the family budget, this gives certain privileges.
It will be necessary to present in court irrefutable evidence of the expenditure of personal (or general) finances on the building.
According to the law, a significant increase in the market value of the object of dispute on the secondary real estate market, due to joint funds, gives the spouse the right to claim part of the home ownership, or payment of monetary compensation in proportion to the money spent.
House with mortgage
The solution to this issue is complicated by the fact that the property is pledged to the bank with which the mortgage agreement was concluded. Therefore, the named financial institution often acts as a third party in court hearings.
The main question that interests all participants is who will repay the contributions to the bank and who will ultimately receive the property.
There are several ways to solve the problem:
- With the consent of the lender, the loan is reissued to one of the parties. The second spouse receives monetary compensation proportional to the total funds invested in the loan.
- House construction is sold on the market (with the permission of the lender). The loan is repaid using the funds received, and the remainder is divided in equal shares.
- The former spouses continue to share the use of the building and site and pay mortgage payments.
Having chosen one of the options, citizens who have entered into an agreement with a credit institution draw up an additional agreement with the lender, which indicates the changes made to repay the debt.
In practice, one of the spouses receives money as compensation.
Purchased or built with maternity capital
As you know, this program of the Government of the Russian Federation is designed to improve the living conditions of Russian families with two or more children.
People often spend money on purchasing large real estate. In this situation, the object becomes common property of both adults and children.
Therefore, the division of the house between spouses is carried out with the participation of guardianship authorities, which monitor compliance with the rights of minors.
In this case, the living space is divided not into two parts, but into four, if there are two children, taking into account the invested funds of the mother’s certificate.
Construction in progress
Upon divorce, an unfinished house belonging to the spouses is located on the property. People don't know how to divide an unfinished house.
Formally, it is not yet a full-fledged structure, since it has not been taken into account by the Rosreestr authorities and a cadastral passport has not been issued for it.
In this situation, the object is still considered joint property and can be divided.
This can be done in the following ways:
- Assess the cost of the building materials used and pay half or divide them.
- Jointly complete the construction and then divide the house.
- Compensate the invested costs to the other party and independently put the facility into operation.
Often citizens choose the last two options during divorce proceedings. They involve obtaining greater material benefits from unfinished real estate.
Sequence (stages) of the section
Before starting the procedure, you should understand whether there is a possibility of its fragmentation. For these purposes, it is necessary to carry out an examination that will confirm or not confirm these possibilities.
The examination will also answer another question – whether the structure meets absolutely all technological conditions. In addition, in the final decision, at the request of the co-owners, the specialist has the right to add information about the actual price, redevelopment alternatives available for this property, and the costs of these types of work.
After approval of the examination, the owners are required to obtain permission for redevelopment. This can be done at local governments.
Owners will then be able to apply one of the alternatives:
- Allocation of shares;
- Dividing the house into 2 buildings.
This is only possible when divided into separate rooms with a separate entrance.
Important Tips
In order for divorce and division of a house to proceed without problems, disputes and unplanned financial expenses, you must adhere to the letter of the law and a few tips from the author.
5 useful tips:
- Come to a peaceful agreement on the division of common property.
- Have the agreements notarized.
- When resolving a dispute in court, prepare all documents in advance and correctly state your demands in the claim.
- Collect reliable evidence indicating that personal savings were spent on home ownership and land, which will significantly increase the plaintiff’s share in the divorce.
- Correctly evaluate real estate.
Thus, the process of dividing a residential property and land will not be difficult. It is important to take into account all the circumstances of the case and correctly analyze the current situation and, based on this, quickly make decisions.
Author: Oleg Vladimirovich Roslyakov, source.
Division of land under the house
When dividing home ownership, the question of the divisibility of the land plot inevitably arises.
The legal (legal) meaning of the criterion of divisibility of a land plot means that a plot is recognized as divisible if, as a result of the division, independent plots are formed, the permitted use of which can be carried out without transferring it to land of a different category and the requirement for the minimum size of a land plot established by legal acts of local government bodies (Article 11.2; 11.4; Clause 1, Article 33 of the Land Code of the Russian Federation; Article 1182 of the Civil Code of the Russian Federation).
In other words, the possibility of its actual division directly depends on the area of the land plot. For example, if a land plot with permitted use for individual housing construction (IHC) has an area of 6 (six) acres, then theoretically it can be divided into two plots of 3 acres each. Division of such a land plot into a larger number of parts is legally unacceptable. The exception is cases of division of land plots on the basis of judicial acts.
The amount of duty for dividing the property of spouses in court
If there are disagreements between husband and wife, jointly acquired property is usually divided through the court. The state fee when filing a claim for the division of property of spouses also depends on the amount of its assessment, and is established by Art. 333.19, 333.20 of the Tax Code of the Russian Federation. If an application to the court is filed for the first time, its amount is determined depending on the cost of the claim:
- 4% (at least 400 rubles) - with an assessment of up to 20 thousand rubles;
- 800 rub. + 3% of the amount over 20 thousand rubles. (from 20,001 to 100,000 rubles);
- RUB 3,200 + 2% of the amount over 100 thousand rubles. (from 100,001 to 200,000 rubles);
- RUB 5,200 + 1% of the amount over 200 thousand rubles. (from 200,001 to 1,000,000 rubles);
- RUB 13,200 + 0.5% of the amount over 1 million rubles. (over RUB 1,000,000).
The maximum amount of the fee for dividing the property of spouses in court is limited to the amount of 60,000 rubles. In the event that a re-examination of an appeal regarding previously divided property is carried out, it is paid in the amount of 300 rubles (Article 333.20 of the Tax Code). If, during the consideration of the case by the court, the parties entered into a settlement agreement, nothing additional is paid, but the amount previously paid is not returned.
How are private houses divided?
If it is not a semi-detached building, in practice it is quite rare to be able to divide the house so that all parties are happy.
The law provides two methods:
Settlement agreement
This is the most cost-effective (both in terms of money and time) option for owners. In this case, the house does not lose its position as a whole object, but is simply re-registered as shared ownership.
In the case of a peace agreement, everything is done on the basis of oral consent or a written agreement between the owners. It is more correct to choose the latter and have the contract notarized, which can eliminate all disputes in the future.
The contract stipulates the following points:
- ongoing maintenance costs;
- communal payments;
- procedure for using the common area.
When deciding on a peace treaty, it is important to consider how the division of the territory will be carried out. However, if everything is formalized as joint residence, this section is optional.
Even in this case, the property is divided into two premises. In certain situations, redesign will be necessary. Any redevelopment must be legalized and a corresponding specialist report must be drawn up.
Possible nuances
We told you how to divide a plot of land, but there are special cases that cause difficulties. For example, the division of land according to the above scheme is relevant only for empty territories. In practice, the site is rarely empty. Owners build houses and outbuildings. How to decide on division in this case, especially if an agreement between the co-owners has not been reached?
The court must make a decision in this situation. The owners file a statement of claim (a sample can be viewed by following the link) demanding the division of the territory and other property.
Sample statement of claim for division of land, house and outbuildings
As a result, the court decides to terminate shared ownership. In this case, each person indicated in the statement of claim is allocated a part of the common property and the procedure for its use is determined.
For example, if 4 owners claim a plot and a house, each will receive ¼ of the total property. But each of the newly minted owners must equip themselves with a separate entrance and delimit the adjacent territory.
The owners have the right to refuse their share in favor of other participants in the transaction. In this case, the refuseniks can count on material compensation, and the division of the land plot will continue among the remaining applicants.
