How to sue a share in an apartment from the owner: step-by-step instructions

Home / Real estate / Acquisition of real estate / Shared ownership

Back

Published: 08/28/2016

Reading time: 7 min

0

3867

Most often, close people have to go to court when it comes to the division of real estate. In order for this procedure to go as smoothly as possible, it must be approached with all responsibility and legal literacy.

Of course, the best option for dividing property is a peaceful agreement between the owners. However, it is not always possible to reach an agreement, so in judicial practice, cases of property disputes between close relatives are not so rare.

• When might it be necessary to go to court?
• Documents required to file a lawsuit
• Algorithm of actions
• Who bears the costs of litigation?
• Whose chances are greater to win the case?
• Judicial practice Example 1
• Example 2

Is it possible to sue the owner for a share in an apartment?

By law, two or more owners can own real estate.
They have joint rights to the apartment. Depending on whether specific parts are allocated to each of them, ownership can be common or shared. The size of shares can be changed either voluntarily or by going to court. You can voluntarily receive the share of the second owner by buying it out. But not all citizens agree to this option.

If it is not possible to resolve the issue peacefully, going to court is required. The claim is filed in case of divorce of spouses, contestation of transactions, violation of children's rights and in other cases.

In accordance with paragraph 4 of Article 252 of the Civil Code of the Russian Federation, a share can be forcibly redeemed by a court decision if:

• the buyer is the owner of another share;
• the share is insignificant;
• it is impossible to isolate a part in kind;
• the owner has no interest in using the share.

If the husband is the owner, what rights does the wife have?

In such a situation, one must proceed from the fact that this is the personal property of the husband. The legislator, with some exceptions, protects it from division and does not allow the interested party to take the apartment.

First you need to determine what real estate is personal. An indication of this is contained in Art. 36 IC RF.

Personal property:

• an apartment that belonged to the husband or wife before the formalization of the relationship;
• any real estate received during marriage by gift, by inheritance;
• privatized housing or part thereof.

Personal property is considered to be that property that, although it was acquired during family life, was acquired with funds accumulated by one of the spouses before the wedding. Naturally, this fact must be proven in court if a dispute arises.

However, during the divorce process, lawyers find opportunities to wrest the apartment from the ex-husband, which lead to the desired result.

In theory, there are 2 options in which the wife can claim, if not part of the apartment, then a certain amount.

In the first case, the conversation is about the accumulated large alimony debt, as well as penalties.

Here, the ex-wife has the right to seize the property and obtain a forced sale by court of the apartment purchased by the husband before marriage, if it is not his only one. Accordingly, the proceeds are used to pay off the alimony debt.

The second situation is spelled out in Art. 37 SK. The point is that when, at the expense of the wife or both spouses, major repairs or redevelopment, as well as inseparable improvements that increase its market value, were carried out in personal real estate, then the court has the right to recognize this property as common.

Here you need to document the costs of home improvements. The proof will be receipts for the purchase of building materials, built-in furniture, equipment, as well as contract agreements and certificates for work performed from master finishers.

Grounds for allocating a share of an apartment in court

The owner has the right to the inviolability of his property. He can only be deprived of it by a court decision. To request the allocation of a share in an apartment, you must have grounds. Common reasons for going to court are highlighted in the table.

Privatized

The privatization procedure is when a person living in municipal housing, by concluding a free transaction with the authorities, re-registers it in his name (transfers it to private ownership).

A citizen can take part in privatization according to the legislation of the Russian Federation only once.

If both spouses participated in this process, then after the divorce they have equal rights when dividing housing. For this purpose, everyone's share is determined. When children were also included in the procedure, the parents do not have the right to claim their share in the living space.

When only the husband was involved in the privatization, the wife, during a divorce, can sue for the share if she proves that she invested general and personal finances in the repair and redevelopment of the property during the process of living together.

To do this, you will need to prove that, due to the invested funds, the condition of the property has improved and its market value has increased significantly.

Then it is theoretically possible that the court will transfer the privatized apartment to the category of joint property or oblige the ex-husband to pay appropriate compensation.

Algorithm of actions

The issue is resolved in several stages:

1. Pre-trial settlement procedure. It is carried out with the aim of peacefully resolving the issue with the other party.
2. Collection of necessary documents.
3. Drawing up a statement of claim.
4. Submitting a statement of claim to the court.
5. Registration of ownership of part of the premises to the new owner.

Pre-trial settlement
Pre-trial settlement involves the formal submission of claims to the second owner of the property. In a written complaint, a citizen can reflect proposals for a peaceful resolution of the issue.

Reference! The procedure must be carried out before going to court. Without this, the lawsuit will not be accepted in court.

Possible options for resolving the conflict include:

• payment of the cost of the share;
• sale of part of the property;
• conclusion of a separation agreement;
• registration of consent to include a person in the list of heirs.

To confirm the fact of pre-trial settlement, it is better to send documents by registered mail with a list of the contents and acknowledgment of delivery. If the other party does not agree with the requirements, it issues an official refusal. You can go to court with him. You can also file a claim if a response to the claim is not received within 10 days.

Preparation of documents

The list of documents may vary depending on the type of dispute.

But there is a list that must be collected:

• applicant's passport;
• title documents for real estate;
• an extract from the Unified State Register of Real Estate on the availability of other real estate properties;
• registration certificate for the apartment;
• receipt of payment of state duty.

An additional list will be required in specific cases:

1. If a citizen decides to sell his share, then it is necessary to have a purchase and sale agreement, a notice of pre-emption.
2. During the inheritance procedure, the notary's refusal to issue a certificate and the heirs' refusal to include the citizen among the heirs will be required.
3. If spouses divorce and divide property, a certificate of divorce and birth of children will be required.
4. In case of repurchase of a small share, you must have the result of a technical examination and a proposal for repurchase.

Preparation of a statement of claim
A statement of claim is drawn up in accordance with the requirements reflected in Article 131 of the Code of Civil Procedure of the Russian Federation.

The document must indicate:

• the name of the judicial authority that will consider the application;
• applicant details (full name, residential address, contacts);
• information about the defendant;
• the cost of the claim;
• essence of the dispute;
• reference to the law;
• plaintiff's claims;
• list of attached documents;
• plaintiff's signature.

Payment of the state fee
When filing a claim, you must pay the state fee.

The amount varies depending on the type of claim and requirements.

To calculate the amount of state duty, you can use a special calculator. The value of the share, which is the amount of the claim, is entered into it. After this, a receipt will be generated for payment at the bank.

Transfer money to deposit

In accordance with Article 327 of the Civil Code of the Russian Federation, a citizen must make a deposit for a share into an account in order to fulfill obligations. The money is transferred to the court deposit.

To do this, you need to get the details from the regional department of the judicial department. Payment is made through the bank's cash desk. The receipt is attached to the claim in court.

Notice to the defendant

When filing a claim, you must notify the defendant. This can be done by registered mail by sending a package of documents to the other party. The rule also applies to third parties who participate in the case.

Sending documents to court

Real estate disputes have exclusive jurisdiction. Therefore, a package of documents along with the claim is submitted to the court at the location of the object. If the issue is related to inheritance, then the application is submitted at the place of registration of the defendant.

If the plaintiff's demands are satisfied, a court decision is issued. It comes into force after 30 days. Based on the document, property rights are registered in Rosreestr.

Registration of rights

Changes in ownership of residential properties must be entered into the unified Rosreestr database. To do this, a citizen must submit documents.

You can submit an application and a package of papers in person or through the MFC.

The list includes:

• the court's decision;
• the applicant's identity card;
• title documents for real estate.

Attention! You will also need to pay a state fee for carrying out registration actions. An extract from the Unified State Register is issued in hand after 7 days.

If the apartment is shared

When the need arises to decide the fate of the property, the husband and wife have the right, in the presence of a notary, to voluntarily sign an agreement on the division of the apartment among themselves. It stipulates the size of shares and the conditions for payment of counter monetary compensation.

If there are no agreements, the courts are guided by Art. 39 of the RF IC, according to which, as a general rule, assets are distributed in half. But there are exceptions.

Thus, the wife is given the opportunity to seize the apartment from her husband in a larger share if the latter does not provide for the family for a long time for unjustified reasons.

We recommend! State duty when dividing property, how to calculate the cost of the claim, is deferment and installment plan possible?

The above does not apply:

• housekeeping;
• child care;
• having a serious illness or disability.

Accordingly, the court does not have the right to limit a woman’s rights if she took care of the house or child.

The chance for a wife to receive her husband’s share, part of it, also arises when he irrationally used the general budget, causing damage to the family. By his actions, the negligent husband gives his wife a reason to act within the framework of the law, namely paragraph 2 of Art. 39 RF IC.

As an illustration, we can cite a fairly common life situation: an alcoholic husband began to take things out of the house in order to earn money for another portion of alcohol.

In practice, it happens that housing for a family is purchased in combination - through general and personal savings. Then, during a divorce, the apartment is divided between the spouses in appropriate proportions.

Or here’s another everyday situation. Two family members have a cottage purchased during marriage. Using the husband's personal funds accumulated before the wedding, the household acquired an extension. In this case, when dividing the house, the spouse’s share will be increased. It is therefore not surprising that courts pay close attention to the source of finance.

Expenses

A citizen who wants to sue a share bears the following costs for the procedures:

1. Conducting technical examination of real estate. The cost depends on the type of procedure and region of treatment.
2. State duty when going to court. You can get acquainted with the prices by referring to Article 333.19 of the Tax Code of the Russian Federation.
3. The cost of assessing a share of real estate ranges from 1000–3000 rubles (depending on the region and company).
4. Payment when purchasing a share in an apartment.
5. The state fee for carrying out registration actions in Rosreestr is 2000 rubles.

Who bears the costs of litigation?

The state fee for the statement of claim is paid by the plaintiff. Its size is determined as a percentage of the average cost of the share of the apartment for which the applicant is applying and ranges from 400 to 60,000 rubles.

The technical examination is carried out at the expense of the defendant, however, if he does not want to pay for this procedure, the plaintiff can do so.

Payment of legal costs is assigned to the party in the proceeding that is declared the loser by the court.

Costs include the plaintiff's costs for a lawyer, various legal consultations, etc. The amount of these costs is purely individual and depends on the prices of a particular law office, the number of court hearings, the number and complexity of technical examinations.

Registration of ownership of an apartment in a new building is a slow and painstaking task. Do you need to know the cadastral value of your apartment or house? There is detailed information on this issue here. Before buying an apartment, you should definitely check it. How to do it correctly, read this article.

Arbitrage practice

As judicial practice shows, the courts do not always side with the plaintiffs.
Therefore, many have to defend their rights in higher authorities. Thus, several Vladivostok courts sided with the brother, who did not want to give his sister 1/12 of the apartment’s share. A decision was made to allocate him a part of the property with a total area of ​​175 square meters.

But the Supreme Court of the Russian Federation ruled that in order to live in a room with an area of ​​16 square meters, it would be additionally necessary to give the defendant the right to use the kitchen, corridor, and bathroom. And, given the hostile relationship between brother and sister, this was impossible. After receiving a court decision, the sister bought out the share and became the full owner.

A similar case was considered in Nakhodka. The couple shared an apartment of 56 square meters. The husband was only entitled to 1/6 of the property. The Supreme Court took into account that the husband did not live in the apartment and did not pay utilities. Therefore, I decided to give the man’s share to his wife and children.

With maternity capital

In the Russian Federation, there are several ways to support families raising two or more children. Among them is the provision of maternity capital for the purchase or even construction of their own housing.

However, the division of real estate in the event of a divorce occurs according to the following rules. The part that is spent on maternal capital is not involved in the dispute and is distributed in shares between parents and children.

All information is presented in detail in the article: Section of an apartment with maternity capital.

However, here you need to be aware that maternity capital in many cases is not enough to solve the housing problem. Then the spouses are forced to add their own, borrowed funds. In this case, the division will affect only the part of the property that falls under the surcharge.

Is it possible to sue for a mortgaged apartment?

It's no secret that a loan for many families is the only way to solve problems with their apartment. But there is one significant circumstance - the presence of debt to the bank.

In this case, mortgage divorce has its own characteristics. Until the loan is repaid, the financial institution has the final say. And if the bank is against it, you need to file a statement of claim for the division of property. In this case, the court will divide the apartment 1/2 for each person.

There are several options for solving the problem and they all directly depend on the will of the creditor. For example, the main mortgage can be divided into two independent agreements, but not every bank will take such a step. Read more in the article: How to renew a mortgage during a divorce.

In practice, the scheme according to which the purchased apartment is sold is justified (of course, you must first obtain the consent of the bank). The loan is repaid with the proceeds, and the remaining money is divided in half by the ex-husband and wife.

It is worth adding here that if one of the spouses paid off most of the loan for the other, then he has the right to file a recourse claim for this money. The ratio of shares does not change.

Municipal apartment, and husband is the employer

Municipal, as well as service, residential premises cannot be the subject of division. After all, it belongs by right of ownership to the state, territorial entity, or organization.

In order for such real estate to become the property of citizens, it must be privatized. But here too there are legal subtleties.

Provided that only the husband will participate in privatization, the entire apartment will become his personal property by virtue of Art. 36 IC RF. True, the ex-wife will retain the right to live in it. In addition, she has the right to prove that she invested money in repairs. And if the amount is significant, the court may consider such property to be joint.

When both spouses, including children, have privatized housing, each will have their own share. In such a situation, the need for division will disappear by itself.

You can take a share if the apartment is shared ownership

Everything here is more or less clear, since common property speaks for itself. The parts are defined, and there is nothing special to divide.

Another thing is that it is possible to buy out a part of it from your spouse, provided that he agrees to sell it. The mechanism is spelled out in basic detail in Art. 250 Civil Code of the Russian Federation.

We recommend! Claim for divorce and division of property of spouses, sample, example of filling

In particular, the ex-husband must offer his wife to purchase a share, announcing the price in advance. If there is no response within a month or a refusal follows, the husband has the right to sell it to any buyer.

Is it possible to take an apartment from a husband during a divorce if there is a prenuptial agreement?

By virtue of Art. 41 of the RF IC, such a transaction is formalized both before the registration of the marital union and during its existence. Naturally, after a divorce, there can be no talk of a prenuptial agreement.

The full text of the document stipulates the entire property component of family life. The above also applies to the property that will go to the husband and wife in the event of a divorce.

Another thing is that the agreement can subsequently be invalidated. To do this, it is enough to find reasoned grounds provided for by the Civil Code of the Russian Federation for challenging transactions.

An additional argument is the deliberate worsening of the position of one of the parties. When a court annuls a marriage contract, the division of assets occurs on a general basis.

Underwater rocks

To get a share in an apartment without problems, you should remember some nuances:

1. It is better to try to negotiate peacefully with the owner of the share and buy it out. This is the option with the least time and financial costs. The trial is a more complex procedure in all respects.
2. If there are no grounds for receiving a share, the citizen may be refused consideration of the case. Before going to court, it is important to collect evidence.
3. The procedure requires the preparation of a large number of documents. Not everyone can file a claim or claim on their own without legal assistance.

Apartment during divorce: the most common problem

Let us turn to Article 34 of the Family Code of the Russian Federation. From this article it follows that property acquired by spouses during marriage is their joint property.

Property acquired by spouses during marriage includes:

• income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity;
• pensions and benefits received by them;
• other monetary payments that do not have a special purpose (amounts of material assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, and others);
• movable and immovable things acquired at the expense of the spouses' common income;
• securities, shares, deposits, shares in capital;
• deposited in credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of which spouse’s name it was acquired or in the name of which or which of the spouses contributed funds.

*In addition to the above, the right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income.

Based on this article, it is easy to determine if you or one of the spouses purchased real estate in the form of an apartment or other real estate, it should be divided into equal shares between the spouses. But it is worth mentioning that the property must be registered in the name of the spouse, this is very important!

Additionally

1. It is necessary to know who is the owner of the property at the time of division, and who was at the time of acquisition. If at the time of acquisition it was your spouse, and at the time of division the apartment does not belong to him as property, then the situation becomes more complicated, since the circumstances of the alienation could have been various circumstances and it is possible that you have completely lost the right to this share.
2. Look at the acquired property from the perspective of Art. 34 of the Family Code and determine whether you have the right to part of the property?
3. Next, try to resolve the dispute out of court, send a letter in the form of a peace agreement on the distribution of shares in your apartment to the spouse’s registered address.
4. If pre-trial settlement does not help, you need to draw up a statement of claim (above you will find links to information articles on how to draw up and file a claim in court)
5. File a claim in court in accordance with the provisions of the Code of Civil Procedure of the Russian Federation.

Example of real estate division from practice

Let's consider an example from judicial practice regarding a claim regarding the division of real estate between former spouses.

Statistics of proceedings on the division of property and real estate show that the largest number of cases considered relate to the division of living space between former spouses. Usually, such issues between an ex-husband and wife are not resolved peacefully, but are resolved only through the courts.

The plaintiff in the case of division of common real estate with his ex-wife is the husband. He submitted a statement in which he asked to share the 3-room apartment he shared with his ex-wife. The court accepted the claim for consideration and scheduled a hearing to which both parties were invited.

If the plaintiff or defendant does not appear in court, the hearing will be postponed.

After a certain procedure of proceedings, with consideration of all documents confirming the ownership of both parties, as well as other evidentiary factors, a decision was made. The verdict stated that the plaintiff’s application was partially satisfied, and he was recognized as having ownership of 1/8 of the apartment, and the defendant received 7/8 of the living space, since she has two minor children to support. It was also indicated that part of the apartment should be provided to the plaintiff in the form of monetary compensation, which the defendant was required to pay.

This is how, in reality, the question of how to sue for part of an apartment is resolved.

Usually, in most disputes between spouses regarding the division of residential real estate, the court takes the wife’s side, since children are almost always left to be raised and supported by their mother.

Recognizing the transaction as invalid as a reason to sue the apartment

Among the grounds for declaring a transaction invalid are the following:

• when concluding a transaction, the rights of minors or other incapacitated persons were violated;
• the transaction was concluded on conditions that were obviously unfavorable for the seller under the pressure of difficult life circumstances;
• the transaction was concluded by an unauthorized person on behalf of the owner;
• at the time of the transaction, the seller was in an insane or otherwise altered state.

These are just some of the grounds for declaring a transaction invalid. A more complete list of reasons is presented below.

There is no such transaction that one could not try to invalidate. The main thing here is to provide convincing evidence of your case to the court.

To minimize the risks of challenging and invalidating a transaction, the parties to an agreement often enter into such agreements with a notary. It is no coincidence that all transactions involving the alienation of part of shared ownership to third parties are completed by a notary.

How to sue an apartment in case of violation of the rights of minors

When selling the only residential premises in which minor children live at the time of the transaction, it is necessary to obtain permission from the guardianship and trusteeship authorities. It does not matter whether the children are the owners of the property, whether they are registered in it or not. The main criterion is living in a living space in the absence of anything else suitable for living. The same requirements must be met when incapacitated citizens live in an apartment.

If, in violation of this norm, parents sold an apartment and did not provide their children with other equivalent housing, then such a transaction may be declared invalid in court. In this case, the plaintiff can even be the minor himself, if he is already 14 years old (if there is reason to believe that the parents abused parental rights), or the guardianship and trusteeship authority. Moreover, sometimes even the presence of permission from the guardianship authorities for a transaction is not fundamental for the court when making a decision. The court will be guided by real facts of violation of children's rights, if any.

Please note that the statute of limitations for civil cases is 3 years. Therefore, the child of the apartment seller who has reached the age of majority during this time can go to court.

How to sue an apartment sold at an unfavorable price

Unfortunately, sometimes situations arise when, due to a serious illness, the need to pay for various services or solve other problems, significant funding is required. At such moments, a person thinks little about his own benefit and is ready to sell the apartment for next to nothing. The law is there to protect citizens when such situations arise.

If you correctly collect evidence by providing certificates, checks, receipts and other documents to the court, you can prove that the purchase and sale transaction of an apartment was concluded on deliberately unfavorable conditions under difficult life circumstances. In this case, it is more than possible to sue the apartment from the owner. Only in this case you need to remember the statute of limitations, which is 3 years.

How to return a home that was not sold by you

If you once gave a power of attorney to sell your real estate to any person, but subsequently there was no longer a need for this, the document must be revoked. However, there are cases that people forget about such moments and lose their housing after a certain period of time. In this case, you can appeal the transaction in court only when the power of attorney has expired. If such a period is not specified, then it is 1 year from the date of issue.

Fraudsters can mislead the buyer regarding their competence to complete the transaction and enter into an agreement after the expiration of the power of attorney. In this case, there is a high probability that the court will satisfy your demands to invalidate the transaction.

Return of real estate sold by an insane person

Another basis for recognizing a transaction as invalid is the signing of the contract by the owner, who at that moment was in an insane state, under the influence of alcohol, drugs, or under the influence of strong medications. Naturally, all this requires documentary confirmation in court.

It is not uncommon for a family member suffering from alcoholism or drug addiction to sell an apartment for next to nothing and present you with a fait accompli. In this case, it is necessary to try to appeal the transaction by presenting to the court certificates from a medical institution, as well as confirm with other data that the seller could not control his actions at the time of the transaction.