Shared ownership: how to use common real estate

Common property owned simultaneously by several persons is considered shared property. For example, a husband and wife bought a new apartment and incurred equal costs, and therefore the documents reflected the fact that 50% of the real estate is the property of each family member.

There are two options for allocating part of the property. The first of them does not violate the principles of common property. Having formally received rights to part of the property, you will not be able to dispose of it without the permission of the other co-owner. But allocating a share in kind allows you to dispose of your part of the property. The owner can sell the share of the home or receive compensation for it from the co-owners.

You can allocate shares and record the fact of shared ownership using an agreement. In this case, the parties agree and decide how to correctly allocate parts of the common property, and then write down all the details in the document, sign it and notarize it.

However, in practice there are cases when it is not possible to reach an agreement, which means that the conclusion of a peace agreement is cancelled. Then questions about the share of common property are resolved with the help of the court. You need to prepare your arguments well and collect a high-quality evidence base. A professional lawyer can help you with all this, as well as in drawing up a statement of claim. Family and housing disputes are most often complex and conflict-ridden, so choose a specialist who will defend your interests in court.

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In what cases is it impossible to allocate a share?

Sometimes you can’t do without allocating a share. For example:

• if spouses are divorcing and planning to divide jointly acquired property;
• if the property was received as an inheritance, but there are several heirs;
• if one of the owners wants to dispose of their part, for example, sell it or rent it out.

Sometimes selling a share of property is the only way out in the current life situation. In order for the owner to dispose of his share, it is necessary that it be determined in kind. But in practice this is not always possible. For example, it will not be possible to determine the physical part of the property if it is:

1. Will make it difficult for other owners to access common areas, such as the kitchen or bathroom.
2. Will entail redevelopment, which may pose a threat to the lives of residents.
3. Makes other areas of the property uninhabitable. For example, according to Article 16 of the Housing Code of the Russian Federation, if a room does not have a window, then it is not suitable for living.
4. It will violate the legitimate interests of organizations, for example, a credit institution (if the apartment is pledged to the bank), or individual citizens, for example, a disabled person living in the apartment, who will have limited access to public areas.

In fact, separating shares from common property is not difficult. You need to decide on the size of the parts and record the agreements on paper.

In this case, the property remains common, you cannot dispose of your part of the property, you just now know its size. But difficulties may arise when you change the type of ownership from common to shared, and also if part of the property is allocated in kind.

Questions from our readers

Features of the transaction if the apartment was purchased with the participation of maternity capital
If the apartment was purchased with maternity capital before the divorce, it is divided between all family members. After the divorce, each owner has his share.

The parties can agree on a buyout. If the ex-husband does not agree to the deal, going to court will be required. The case is considered taking into account the existing circumstances, as well as taking into account the interests of minor children.

If maternity capital was not spent before the divorce, then after the divorce the husband has no rights to it. The certificate belongs to a woman. If spouses have shared ownership of an apartment, the spouse can spend maternal capital to buy out her husband’s share. In this case, she needs to contact the Pension Fund with an application to send funds to improve housing conditions.

Methods for allocating a share

There are three main ways to allocate a share of ownership in kind:

1. Establish procedures for using the premises. In this case, we are talking about the fact that one of the rooms is transferred by agreement to one of the owners, but the common areas remain accessible to all residents.
2. Divide property. This applies to cases when the contribution of each owner to real estate is assessed, in proportion to which the jointly acquired property is divided.
3. Sell, donate or inherit your part.

When all the owners of the premises have come to the conclusion about the division, then just signing an agreement will be enough. A standard agreement on the allocation of parts of property must necessarily contain the following information:

1. Agreement number, date and place of signing of the agreement, name of the document.
2. Personal information of each owner.
3. Detailed information about the property with confirmation of registration and ownership.
4. The size of the shares of the parties to the agreement and the method of determining them.
5. All available information about the encumbrances imposed on the property of the parties to the agreement.

The agreement must be signed by each owner affected by the innovations. Once such an agreement is entered into, it is important that government agencies make appropriate changes to the property's records.

In the future, to change the terms of the agreement on determining shares, the mutual consent of all parties to the agreement, everyone who signed it, is required. If it is not possible to reach an agreement peacefully, the issue of determining the shares will have to be resolved through the courts.

Rights of spouses to an apartment during divorce

In accordance with Article 34 of the RF IC and Article 256 of the RF Civil Code, all property acquired during marriage is jointly acquired. Spouses have the right to the object in equal shares. But there are situations when property is not divided. Features of the procedure are given in the table.

➟ Privatized

A privatized apartment is a property that has been re-registered from state ownership to private ownership. It can be distributed in shares between spouses, and also belong entirely to one of them.

Reference! If the husband privatized the apartment before marriage, the wife will not have rights to it. It will also not be possible to receive a part if the property was privatized in the name of one person and the other applicants refused.

A woman can go to court and prove that she contributed to the improvement of the apartment. You can provide evidence that expensive repairs were carried out, as a result of which the price of the apartment increased.

Also, the wife has the right to prove that the husband did not bring income to the family and did not invest in property. This norm is reflected in Article 39 of the RF IC.

If privatization was carried out with the participation of two or more persons, each of them will be the owner. After a divorce, each spouse receives his or her share. The wife has the right to buy back part of the property from her husband, observing the procedure established by law.

➟ Bought during marriage

If the apartment was purchased during marriage under a purchase and sale agreement, it will be divided between husband and wife. The division is carried out in equal shares. But the spouses can also draw up an agreement, according to which the wife will be the owner of the established share.

Even if the property is registered in the name of one of the spouses, this does not give him any advantages. This rule applies if there is no marriage contract.

The apartment can be divided voluntarily or judicially. The wife can buy out her husband's share.

➟ Mortgage

If spouses purchase an apartment with a mortgage, in accordance with paragraph 3 of Article 39 of the RF IC, debts are distributed between them in proportion to their shares. Parts of the property are determined in court or by agreement of the parties.

After a divorce, there can be two scenarios:

1. The husband and wife each receive half the apartment and pay 50% of the debt.
2. One of the spouses becomes the owner of the entire apartment and also receives the obligation to repay the loan. The second party can compensate 50% of the costs of payments already made.

Buying out real estate is possible in the first case. This will require the consent of the husband and the approval of the bank.

➟ Gifted, inherited

If property is transferred under a gift agreement or will, it belongs to a specific person. The property will not be recognized as joint property. The wife can ask her husband to sell her a share or the entire apartment. But the spouse has the right to refuse to carry out the transaction.

Step-by-step instructions for allocating a share in court

A person who is faced with housing disputes for the first time most often has no idea where to start. We have prepared step-by-step instructions for you, which are designed to simplify the procedure for establishing the right to a share of property.

1. The first thing you need to do is decide why you need the allocation. Then you will decide whether you want to allocate a portion in kind or in monetary terms.
2. Next, you need to understand whether it is technically possible to isolate a part in kind, or you will have to be content with money; what kind of allocation options are generally possible in this case; how many shares will there be and what size are they; how much your part of the property will cost on the real estate market. The answers to these questions will be given by an expert assessment.
3. Once you have decided why you need the allocation, you need to try to discuss it with other owners of the premises. If you managed to agree and sign a share agreement, then the main process is completed. And if not, then move on.
4. Drawing up a statement of claim, preparing a package of documents, calculating the amount of state duty and paying it.
5. Submitting a statement of claim and documents to the court. Beginning of the case and court hearings.
6. Receipt of a court decision that has entered into force.
7. Registration of changes in Rosreestr and BTI.

If the court decision contains even the slightest change in the ratio of shares and ownership, then each owner must record this with government agencies.

Statement of claim

Drawing up a statement of claim will not be difficult if you have all the necessary information about the owners and the property. You can submit statements of claim and simply fill them out. For example, the Garant website presents a large library of samples. The application must contain the following information:

• name and address of the court to which the claim is filed;
• personal information of all owners and participants in the case;
• detailed information about the property: address, total area, number of rooms, number of owners;
• title documents for the apartment;
• an indication of pre-trial means of resolving the dispute;
• data on expert assessments;
• list of attached documents;
• date;
• plaintiff's signature with transcript.

A package of documents that must be attached to the statement of claim: the plaintiff’s passport details, an extract from the Unified State Register of Real Estate, confirmation of rights to own real estate, a receipt for payment of the state duty. The number of copies of the claim must correspond to the number of owners.

The consideration of the case in court will take from two to six months. But the legal process itself is not all the time that may be needed for the judicial allocation of a share. It will take time for examination and assessment, for studying the statement of claim, pre-trial hearings, directly for court hearings, as well as for a possible appeal of the court decision.

Underwater rocks

The procedure for purchasing a share can be fraught with difficulties:

1. When forced to buy, a woman must be sure that there are grounds for this. Otherwise, she will waste a lot of time and effort, and the court decision will not be in her favor.
2. The husband may ask too high a price for the share. A real estate appraisal will be required to reduce the value.
3. When going to court, documents must be drawn up correctly. Not all citizens can cope with this task. You will have to contact a lawyer to prepare a claim.

How to determine the share size

Becoming the owner of a share is possible only under a division agreement with the help of a court decision, as well as under the terms of shared ownership, which are established at the time of purchase of the property. If your case does not fall under any of the above, then you are one of the owners of common property.

This means that you have some share, but you do not know its size and it is not documented in any way. How, then, can you find out the size of your share of the property?

The owners' shares in common property are equal by default. For example, an apartment measuring 60 sq.m. three owners. So, each owner by default owns ⅓ of the apartment, that is, 20 sq.m. But how to divide the shares so that it is possible to dispose of, for example, a separate room?

Article 252 of the Civil Code of the Russian Federation allows for the determination of a share in kind, but stipulates a number of conditions, the main one of which is the continued suitability of the property for citizens to live in it. For example, it is impossible to physically divide a one-room apartment into two separate living spaces, equip separate entrances, divide or move communications, cut a window in a load-bearing wall for a second room - that is, carry out a full-scale redevelopment. Therefore, it will not be possible to divide such housing.

But if the apartment is large enough, it has several separate rooms, it is technically possible to refurbish it, make separate entrances - separating it is quite possible. The condition for carrying out such a procedure will be the approval of the redevelopment by local authorities and the registration of two separate technical passports in the BTI.

In some cases, a complete division of one living space into two (or more) separate ones is technically impossible, even if it is quite spacious. In such cases, the law allows co-owners to transfer the apartment to communal status. Each co-owner will have personal ownership of the room in which he will live, and common areas (kitchen, bathroom, corridor) will remain common.

○ What to do if one of the owners is against the sale of the apartment?

No one can prohibit the owner from selling his share in the apartment, not even other owners. If a co-owner is against the share in the apartment being sold to an outsider, then he has the right to give his consent to its purchase within a month from the receipt of notification of the sale. In practice, there are cases when co-owners sent objections to the seller for the sale of a share, but did not take any action to acquire it, then in this case the seller should wait until 30 days have passed from the date of notification of the sale and sell the share to unauthorized persons.