Home » Housing disputes » Purchase of an apartment in shared ownership by spouses
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Shared ownership is used primarily in cases where it is necessary to divide housing into separate parts and then allocate them in kind. As a result, such a system is more relevant for people who do not know each other or other persons who do not live together, rather than for spouses. But if such a need arises, can a husband and wife purchase an apartment as shared ownership? Read in this article.
Can spouses purchase an apartment as shared ownership?
Based on the norms of Article 33 of the RF IC, the joint purchase of an apartment by a couple presupposes the common joint property of the spouses. There is only one exception: the conclusion of a marriage contract. Within its framework, legal relations between husband and wife can be built on other conditions, as long as both parties agree with this.
Example : If you purchase real estate without a marriage contract, it will automatically be registered as joint ownership. There are no options. Spouses will be denied an attempt to register housing as shared ownership. But if you conclude a marriage contract (no matter before the wedding or after it), then in this document you can determine that each party has their own property and they can manage it independently, without regard to their partner.
Who is better to register an apartment for when buying while married?
There is no difference in whom the apartment is registered in the name of a married couple. Based on Article 256 of the Civil Code of the Russian Federation and Article 34 of the RF IC, real estate will be the common joint property of both spouses. Even if the husband purchased an apartment and registered it in his name, during a divorce such housing will still be subject to division.
Example: Let’s assume that the newlyweds purchased an apartment immediately after marriage. It was registered to her husband. After a few years, the need arises for a divorce, which automatically involves division of property. The fact that the wife was not among the owners of the housing does not play any role and the apartment will still be divided.
The only nuance that is important when registering an apartment for one or the other spouse is that this person will deal with all problems related to housing: registering and deregistering people, dealing with the management company, paying taxes, and so on. It is believed that everything is done jointly by the family, since the property is shared, but various government agencies first look at who is the actual owner.
Is a prenuptial agreement necessary for shared ownership?
As a consequence of the above, a marriage contract (also known as a contract) is a necessity, without which registration of housing as shared ownership is not possible. Previously, literally in 2021, they often turned a blind eye to this rule and the spouses could register the property without any problems (even if it was not very legal), but now, as of 2021, when attempting such registration, a refusal will follow. A marriage contract must be concluded if there is a desire to purchase housing with a division into shares.
What is the best way to register an apartment as shared or joint ownership?
Why do you even need to register an apartment with shares? How is it better and how is it different from joint? In the usual version it looks something like this:
| Shared ownership | Joint ownership |
| Each owner can only dispose of part of the property. | Although the housing belongs to several persons, they are free to dispose of all the premises without restrictions. |
| You can allocate a share in kind and literally isolate yourself from the other residents of the apartment (the simplest example is communal housing). | It is impossible to allocate a share in kind. And usually it is not required. |
| Property taxes are distributed among all owners according to the percentage they own. The same can be said about utility bills. | All payments and taxes are distributed among the owners in equal parts. |
| You can sell your share to other co-owners or even third parties. | The apartment can only be sold as a whole, with the consent of all co-owners. |
| The owner can register anyone in his share and arrange it at his own discretion. | Registration of other persons, as well as reconstruction of premises, is carried out only with the consent of all owners. |
Tax deductions
As you can easily see, in an ordinary family the most relevant and adequate option for owning housing is sharing housing. However, there is one significant “But!” - tax deductions. From a legal point of view, an apartment in joint ownership is one element, regardless of the number of residents. As a result, there is only one tax deduction for it. But an apartment divided into shares is already several elements and the owner of each of them has the right to a tax deduction.
The nominal owner of the apartment has debts - the apartment is seized and taken away
There is a possibility that the relative will not be able to return the apartment due to circumstances beyond his control. Now is not the easiest time in terms of financial stability. If a relative has debts and is declared insolvent, then foreclosure will be applied to his property. This can only happen by court order. Thus, an apartment that de facto does not belong to a person can be auctioned off.
Lyudmila Plotnikova
UPN lawyer
The owner's debts are grounds for imposing interim measures. The apartment will be seized. There was an explanation from the Supreme Court on this issue that they can impose interim measures and subsequently recover part of the apartment (i.e., a share in the ownership). For the only housing in accordance with Art. 446 of the Civil Procedure Code of the Russian Federation cannot be foreclosed on, with the exception of a mortgage. But again, in court it is possible to collect a debt by foreclosure on a share in an apartment; there are precedents.
Typically, debtors, anticipating litigation, try to transfer all existing property to other persons. However, all these transactions may subsequently be recognized as fraudulent at the initiative of the creditor.
How to buy an apartment in shared ownership: instructions
Thus, the only way for spouses to register housing as shared ownership is to draw up a marriage contract before purchasing housing. Let us clarify once again that this can happen both before marriage and at the time of entry into it, or any day after the conclusion of the union.
Procedure
- Conclude a marriage contract in which it is stated, for example, that when purchasing a new home, it must be registered exclusively as shared ownership.
Spouses can use it as joint real estate and at the same time receive all the benefits of the tax deduction of shared property. But if a divorce follows, the property will not be divided equally, as required by law, but as stated in the marriage contract.
- Find suitable accommodation.
- Conclude an agreement to purchase an apartment in shares in strict accordance with the marriage contract. This point must be especially checked in the document.
- Transfer money for the purchase of real estate.
- Register the housing as shared ownership for the new owner.
Documentation
To purchase a home, all you need is the passports of the parties, a certificate of registration of real estate in the name of the previous owner (now the role of this document is played by an extract from the Unified State Register of Real Estate) and a marriage contract. When registering ownership rights, you must additionally attach the purchase and sale agreement itself.
Sample marriage contract
Expenses and taxes
An approximate list of expenses for registration of an apartment by spouses as shared ownership:
- Cost of housing : individually in each individual case.
- State duty for registration of a marriage contract in a notary office : 500 rubles (based on clause 10, clause 1, article 333.24 of the Tax Code of the Russian Federation).
- State duty for registering a marriage contract outside a notary's office : 1,500 rubles (Article 333.25 of the Tax Code of the Russian Federation).
- State duty for registration of property rights : 2000 rubles per person. Since there are two spouses, then the total payment will be 4,000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation).
Deadlines
Drawing up a marriage contract takes a matter of minutes, or in the worst case, hours. The transaction of buying and selling real estate can also be completed in a maximum of 1 day. Registration of ownership takes from 3 days to approximately 2 weeks.
This does not include the time spent searching for suitable real estate, since in each individual case this period can vary from several hours to several years.
Purchase of an apartment in shared ownership by non-spouses
Non-spouses can purchase apartments as shared ownership without any special problems and additional conditions such as a marriage contract. In this case, no restrictions are used.
If potential spouses plan in advance to purchase housing as shared ownership, they can do this in advance, even before marriage, without concluding relevant contracts, because according to the law, the property of the spouses that they owned before marriage is their personal property.
When spouses purchase a home in shared ownership, especially when concluding a marriage contract, a lot of questions and problems may arise. At a free consultation, experienced lawyers will sort out the most controversial elements, and they can act as representatives of the client/clients, actively helping to close the deal exactly as required.
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Author of the article
Natalya Fomicheva
Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.
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How to protect yourself in marriage when buying an apartment
If you have doubts and want to protect yourself in case of possible problems in the future, you can purchase an apartment not in the usual way, through a classic sales contract, but consider alternative options.
Purchasing through third parties
A fairly simple method in which one of the spouses actually transfers a certain amount to third parties, with which they are obliged to purchase housing. These persons register the apartment in their name and immediately give it to the spouse who transferred the money. According to the law, gifts are not subject to division, so such housing will be out of danger.
The scheme is quite risky, since there should be no documents confirming the relationship between the spouse and third parties (otherwise the deal can be challenged in court). As a result, third parties can simply take the money and disappear in an unknown direction. Formally, the spouse cannot have any claims against them, since there are no documents that make it clear that one person transferred money to another.
Separately, it should be noted that the recipient will pay taxes in the amount of 13% of the value of the gift. Unlike a regular sale and purchase transaction, where the seller is the one paying the taxes, in this case the person who supposedly receives the income is the donee spouse.
Example: A spouse transferred 2 million rubles to third parties for the purchase of an apartment, which these persons must subsequently gift to this spouse. Even if everything was done honestly, after receiving the gift you need to pay a tax in the amount of 13% of 2 million, which will amount to 260 thousand rubles.
Purchase using donated funds
The second option to get housing so that you don’t have to divide it during a divorce is to buy it using donated funds. The scheme looks something like this: some third parties give the spouse a certain amount, which is enough to buy an apartment. Where these people got the money from and why they make such a gift is of no interest to anyone, even if 5 minutes ago the money was unofficially given to them by the spouse himself.
After receiving such a gift, a person can safely buy an apartment for himself, which will be considered purchased using the donated funds and, as a result, will also not be subject to division.
No one has canceled the tax here either.
It should be borne in mind that if a husband and wife live in such an apartment for a relatively long period of time and spend common money on repairs and improvements, the second spouse can also prove through the court that it was common money that was spent on home improvements and thus this apartment too subject to division. This system is relevant for both presented “alternative” options.
Conclusion of a marriage contract
The third way to buy a home so that it does not have to be shared in the future is considered the most reliable. Unlike the other two schemes, which can be considered fraudulent or invalid to one degree or another, here everything is done according to the law.
The point is that even at the stage of marriage or immediately after registering the family fortune, the spouses sign a marriage contract in which anything can be specified. Including determining the order of property rights to various objects. In our case, it is important that the spouses can agree that the housing will belong only to the husband or only to the wife.
Example: After marriage, the spouses sign an agreement, based on which the apartment purchased during marriage clearly belongs exclusively to the spouse, and the car belongs only to the wife. Thus, during a divorce there will be no special division: the husband takes the apartment, the wife takes the car.
There is another alternative option - inheriting housing. However, this cannot be called buying an apartment.
