- 2.8.2017
- 205223
Former spouses, as well as the majority of those who received housing as a gift, inheritance or through privatization - all this is a multimillion-dollar army of “co-owners” who own shares in apartments. It is the properties that are in shared ownership that account for the lion's share of housing conflicts, which cannot even be resolved by going to court. But extrajudicial mechanisms offer as many as four ways to remove owners from the conflict while respecting the interests of all its participants. This works even in cases where the dispute has reached a stage where the parties are no longer capable of peaceful negotiations.
Natalya Mikhailyukova, a lawyer for the Russian Guild of Realtors, admitted that every day people living in apartments that are in shared ownership come to her for consultations. The main question is what to do if other co-owners want to move into this apartment, sell their share, or otherwise claim their rights.
Currently in Yekaterinburg, only about fifty individual shares in apartments are sold through real estate agencies. In total, there are much more such objects on the market, but they are sold privately or through black realtors, without the involvement of reputable agencies. This happens due to the fact that professional market participants are extremely reluctant to work with individual property shares.
Yulia Balay
director of the office of the Academy of Sciences "Novosel"
If a share in the ownership of an apartment is put up for free sale, this almost certainly means that there is a conflict between the co-owners, and they are no longer able to resolve the situation peacefully, even if this path will allow the co-owners to receive greater benefits. Selling a separate share in an apartment to a third party is always a loss of money - about 30% of the value of the property. That is, half of the apartment worth 2 million will be sold not for a million, but for 700 thousand. And even in this case, the chance of selling is one in ten. If a client comes to the agency selling a separate share, the realtor understands that if he undertakes to sell it, he will find himself in an extremely unpleasant situation. The only way for a realtor to help such a client and save his face is to become a mediator - an intermediary between the co-owners and try to resolve the situation in the interests of all owners, leaving out all personal relationships of the participants.
Selling a share of an apartment “outside” is not only a losing option in terms of money, but is also fraught with further escalation of the conflict due to the inclusion of a new owner of the share. At the same time, there are four peaceful (and economically feasible) ways to resolve the problem share situation. Of course, the owners of problematic properties know or at least guess about the existence of these methods, but do not always understand how to implement them in real life, especially in conditions of conflict between co-owners.
Method 1. Sell the entire apartment
If the owners sell the entire “shared” apartment, they will receive the full price for it. And it will be possible to divide it in proportion to shares. After which everyone buys a home with their own money or uses it in some other way. The scheme can be effective even if initially there is only a one-room apartment in shared ownership.
Yulia Balay
director of the office of the Academy of Sciences "Novosel"
The man left behind a one-room apartment, purchased outside of marriage. It was claimed by the wife (now a widow) and the child from the testator’s first marriage. Accordingly, everyone was entitled to one second share in the property. The heirs were unable to come to a common decision. One of the co-owners tried to sell his share, but was unable to. As a result, no one lived in the apartment and it was even impossible to rent it out. The child's mother (the testator's ex-wife) contacted a realtor. He found two rooms in communal apartments, the total cost of which was equal to the market value of the disputed apartment. The parties were satisfied with this version of the “exchange”. The apartment was sold, the heirs received a room in return for their shares, and are now renting them out.
Method 2. One of the co-owners sells a share to another
From a logistics point of view, selling a share “among your own” is the simplest option: you don’t have to look for a buyer, and you don’t have to notify all co-owners of your desire to sell your share. That is, if a share is sold externally, the seller is obliged to offer to buy out this share to other co-owners (more on this below). If the owner of the share sells it to one of the co-owners, then the sale does not need to be coordinated with anyone, even if other people also own the apartment.
Separately, it is worth considering the issue of determining the price of the share being sold. As Vlada Pavlova, a real estate specialist at the Link Academy of Sciences, notes, when buying and selling shares between co-owners there is always an interested party. It is it that is forced to agree to the terms of the other party to the transaction. For example, recently the owner of four shares in an apartment worth 3 million rubles bought the fifth share for 1 million rubles, that is, he overpaid by more than one and a half times. Often the opposite situation arises - the owner of a small share, in order to get at least something for it, gives away the share for next to nothing. It happens that for a tenth of the real price.
However, often the most difficult thing in an internal sale is not determining the price, but the fundamental ability to negotiate.
Vlada Pavlova
real estate specialist at Link Academy of Sciences
Case from practice. The apartment is privatized for three – father, mother and child. The parents divorced, the father left the apartment and ended all relations with his ex-wife. Her attempts to buy out her husband’s share did not end in anything. This lasted 8 years! As a result, the woman turned to a realtor. He sent the man a letter: “The wife wants to buy out your share, if you are interested, contact me.” The person agreed to communicate with the realtor. The deal was drawn up so that the former spouses would not meet in person. Since the last share in the apartment was being purchased, the bank agreed to provide a mortgage loan for it. So, even in the bank, when completing the transaction, the ex-spouses - the seller and the buyer - were in different rooms. Nevertheless, the purchase and sale was formalized. I note that the woman was able to buy out the share even without having enough money - with the help of a mortgage.
By the way, if the owner of a small share refuses to sell it to other co-owners, then theoretically it is possible to force him to do so. From Art. 252 of the Civil Code of the Russian Federation it follows that if the owner’s share is insignificant and he does not live in the apartment, then even without his consent the court can order the other co-owners to pay him the cost of the share and take this share for themselves. The same is stated in the Ruling of the Supreme Court of the Russian Federation N 56-В06-17 dated 10.24.06. However, in practice, “forcible” buyout of a share is practically never used.
Method 3. Agree on sharing an apartment
Participants in shared ownership can establish the procedure for using shares among themselves. This, by the way, is the most common scheme. However, in reality it works if there are at least as many rooms in the apartment as there are parties wanting to live in it. If the apartment, for example, is one-room, then either the court gets involved in resolving the conflict, or the co-owners find non-trivial solutions. For example, a shared apartment can be rented out and the income received can be divided in proportion to shares. Or here’s another option - the co-owners agree to live in the apartment in turns, each for, for example, a year.
Lyudmila Plotnikova
lawyer of the Ural Chamber of Real Estate
If dialogue between co-owners does not work out, then you should go to court. He will determine the procedure for using the area, taking into account the real situation of each owner. The calculation will take into account whether each of the co-owners has a different living space, children, dependents, financial situation, etc. If the apartment is one-room, then a decision may be made that the owner of a smaller share with many children who has no other housing has the right to live in it, and the owner of a larger share of the disputed apartment will be “asked” on the basis that he owns other living space.
Lawyers recall cases when the court evicted a co-owner living in it from an apartment and moved in another co-owner. However, if we are talking about an apartment with two or more rooms, then usually the court transfers the rooms to the co-owners for use, focusing on the size of the rooms and shares in the property.
Method 4. Rent a share from a co-owner
This option is a variation of method No. 3. Here the parties also need to agree on joint use. But in the end, the co-owners play different roles.
Natalia Mikhailyukova
lawyer of the Russian Guild of Realtors
If the apartment does not allow all co-owners to use it, then it happens that they agree like this - one co-owner lives in the apartment and gives the other something like rent, calculated based on the size of the shares.
Theoretically, there is also a fifth way to solve the situation with a problematic share, but in practice it is suitable (sometimes) only for private houses, but not for apartments. We are talking about allocating a share in kind. By mutual agreement or by court decision, housing can be physically divided between co-owners. Everyone will receive a part of it for use. But each such part should have not only a living room, but also a kitchen, a bathroom and a separate entrance. It is impossible to organize several entrances, kitchens and bathrooms in a separate apartment. Sometimes this can be done in a private home.
Is it possible to rent out a room and a share in an apartment?
According to Art. 673 of the Civil Code of the Russian Federation, the object of a housing rental agreement can be an isolated and suitable residential premises, including part of an apartment or house.
The owner of any real estate, on the basis of clause 2 of Art. 30 of the Housing Code of the Russian Federation, has the right to dispose of his property as he pleases.
It follows from this that it is possible to rent out both a room and a share , but only after it has been established who owns what part of the shared real estate, and also in some cases with the consent of the co-owners.
Grounds and conditions
The basis for renting out part of an apartment is primarily the right of ownership and the presence of allocated shares.
- If there is one owner of a multi-room apartment, there are no obstacles to rent out one of the residential premises. You don't need anyone's consent for this.
- If the property is shared, then consent will have to be taken from all co-owners both for the disposal and use of such living space (Articles 246, 247 of the Civil Code of the Russian Federation).
- If the share is allocated “in kind”, i.e. is a full-fledged isolated premise (room), then it will be easy to rent it out after obtaining consent.
- If the share is not allocated only as a percentage or fractional value, then problems may arise here. One share should not be lower than the standard 12 square meters. meters per person. If it happens that this figure is lower, then moving in another tenant will be illegal.
How to properly rent out part of your home: step-by-step instructions
You can rent out a room in an apartment yourself, or you can use the services of a realtor; it’s up to you to decide how best to do it. Apart from the participation of intermediaries, the algorithm is the same. To rent out a room in a shared apartment you need:
- If necessary, obtain the consent of neighbors.
- If the answer is yes, you can start looking for a tenant: take a few good photos of the room and write a rental ad.
- Leaflets can be posted around the city or posted on special websites on the Internet (for example, on Avito.ru), or made a post in thematic public pages on social networks.
When communicating with a client, the following is discussed:
- rental period;
- monthly cost;
- payment for the last month;
- procedure for paying utility bills;
- rules for using the property with other residents;
- additionally discuss all questions about pets, smoking, loud music, etc.
Once all important issues have been resolved, you can draw up a lease agreement.
To officially rent out, the apartment must be privatized.
It is impossible to legally rent out property for social rent.
Is the consent of neighbors required, from whom and how to obtain it?
To rent out part of an apartment, you need to obtain consent from all legal owners of shares in the apartment in writing and have it certified by a notary in order to avoid conflicts in the future. To obtain consent you need:
- Inform in writing the co-owners (if any) about plans to rent out your part of the apartment.
- Request consent from each co-owner in writing to rent out the room.
If neighbors refuse to give written consent, then it makes sense to offer them to rent a room on the same terms as with an outsider. If they refuse in writing or do not respond to your written request within 30 days, then the law does not prohibit you from negotiating a lease with anyone.
Can this be done without the consent of the neighbors?
In paragraph 1 of Art. 246-247 of the Civil Code of the Russian Federation it is assumed that owners of shared ownership must jointly resolve issues of ownership, use and disposal of property. To rent out a room, you will have to obtain the written consent of your neighbor. There is no other way to legally dispose of the free space.
But there are solutions:
- It is possible to allocate a share in an apartment in kind - that is, to isolate a separate room from the rest and then be able to dispose of it as you wish, but this is a long and expensive process, and this is only possible in individual houses and multi-room apartments.
- You can enter into an agreement for the use of residential premises, which determines which room belongs to whom and whether they can be rented out. During negotiations, mention the division of income if you rent out an apartment or a room in it. This may be the deciding factor and the neighbors will agree.
- Or, if all peaceful ways to resolve the conflict have been exhausted, you will have to go to court and then determine the procedure for owning and disposing of the premises.
If the co-owner finds out that the apartment is being rented out without his consent, he can file a claim to have the contract declared void and has every chance of winning the case.
What is needed to rent a share of residential premises?
There are no big differences in the documents from renting a whole apartment or part of it. To conclude an agreement you need to have with you:
- Ownership documents.
- Certificate from the housing office about the persons living in the apartment.
- In cases of transactions with shared ownership, a notarized consent of each co-owner to rent out the room to a third party.
- A written agreement on the distribution of residential space between co-owners, which establishes the procedure for using non-residential space, or a court decision on this.
- Passports of the parties.
Drawing up a standard contract
The lease agreement must be concluded in writing in two copies for each party. When registering an agreement, a third copy is required for Rosreestr. The agreement can be certified by a notary to give it additional legal force in the event of litigation.
The main difference between a lease agreement for a part of an apartment and the whole: the subject of the agreement is a separate living area that does not include common areas. It must be described very clearly, and the rights and obligations of the renter and the tenant in relation to the rest of the apartment must be stated no less clearly.
As a standard, the text must include:
- Passport details of the parties to the agreement.
- The fact and conditions of cohabitation between the tenant, the landlord and other tenants.
- Information about the premises that will be rented (footage and address of the apartment).
- Rental periods for premises (short-term – up to a year, and long-term – up to 5 years).
- Amount of rent and utility bills (indicate who is required to pay for what).
- Payment deadline.
- Cash or non-cash payment.
- Rights and obligations of the parties (use of telephone, utilities, personal property, non-residential common areas - toilet, kitchen, bathroom).
- Liability for damage to property.
- Additionally, all residents who will live together in the apartment are indicated.
- Conditions for termination of the contract.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 302-76-94
Registration
Registration with Rosreestr is not necessary if we are talking about renting residential premises by an individual for up to one year.
If the room will be rented for a period of more than a year, registration of the contract is required.
When registering, we provide one copy of the agreement, the consent of all owners and a document confirming the right to own the property.
Real estate results of the year
The owner of most of the apartment went to court and asked to allow him to forcefully pay the participant in shared ownership monetary compensation for his very small part in this apartment with an area of just over 44 square meters.
In court, the citizen stated that the defendant owns 7/100 of the share in the apartment. This is in terms of meters - a little more than 3 meters of total and 1.9 meters of living space.
The defendant himself did not ask for a share, did not agree to replace the meters with money, and does not have any other real estate. Local courts refused the plaintiff's request, and he went all the way to the Supreme Court of the Russian Federation.
The Judicial Collegium for Civil Cases of the Supreme Court studied the refusals of their colleagues and did not agree with them.
Here are the Supreme Court's arguments. According to Article 252 of the Civil Code, property that is jointly owned by several people can be divided by their agreement. Each participant in shared ownership has the right to demand his share. If neighbors cannot agree among themselves, then the court can do this at the request of one of them.
If it is impossible to allocate a share without “disproportionate damage” to the remaining owners, then the shareholder who wants to receive his share can ask his neighbors to pay him for his share.
Payment of compensation to a participant in shared ownership instead of allocating a share is allowed only with the consent of the owner himself. But if the share is so small that it is impossible to allocate it, and the owner of the piece “does not have a significant interest in the use of common property,” then the court itself can oblige the neighbors to pay the citizen for his meter. This is stated in the 4th part of the same 252nd article of the Civil Code. Once a person receives money, he loses ownership.
The Supreme Court writes that the court’s right to take away a microshare and replace it with payment is an exceptional case and it is permissible “only under specific circumstances and to the extent necessary to restore the violated rights and interests of other participants in shared ownership.”
According to the Supreme Court, the local courts were wrong. They decided that the owner of the meter “has an interest in the use of common property, since he did not demand the allocation of a share to him.” This, the high authority said, contradicts Article 252 of the Civil Code. And the reference of local courts to the fact that the owner of the mini-share does not have other real estate cannot be a basis for refusing the claim. In addition, the local courts did not pay attention to the fact that the owner of the meter lives in a completely different subject of the Russian Federation and has no relationship with the owner of the remaining part of the apartment. As a reproach to the lower courts, the Supreme Court also stated one more thing - when deciding on the real interest of a mini-owner in the common property, the courts did not take into account the inconvenience that he causes to another owner.
Each participant in shared ownership has the right to demand his share
Whether the owner of the meter has an interest in the “use of common property” is decided by the court in each specific case, analyzing all the evidence presented confirming the necessity and necessity of the common property. Thus, in particular, age, health status, professional activity, the presence of children and other family members, including disabled people, are checked.
The local courts did not study any of this, which means, the Supreme Court said, the dispute should be reconsidered taking into account the clarifications.
Termination of the contract: grounds, procedure
A contract can be terminated in court for several reasons:
- The tenant violated the terms of payment for the rent: six months for long rental periods, for short terms - failure to pay the payment more than twice upon the expiration of the payment period.
- The tenant or the persons for whom he is responsible have damaged the landlord's property (the court may grant a period of one year for all damage to be eliminated, or the contract is terminated).
- The tenant refuses to pay utility bills.
- The tenant is behaving immorally.
- The party does not comply with the conditions specified in the contract.
- The premises are unsuitable for living.
- The tenant, or the persons for whom he is responsible, use the room for other purposes and violate the rights of other residents to use the premises.
To terminate the contract you need to:
- Notify the tenant of the termination of the contract three months in writing, unless otherwise agreed upon separately.
- The contract is terminated by mutual consent of the parties if no disputes or other conflicts arise.
- Otherwise, we go to court.
The lease is most often issued for an entire apartment. We have prepared for you some useful materials about this procedure:
- Social, commercial, official and gratuitous hiring.
- The procedure for registering a lease.
- How to conclude a lease agreement for specialized housing?
- Procedure for short-term and long-term rental.
- Possible problems with tenants.
You should be especially careful in the process of drawing up the text of the contract and think through all the terms of employment. Based on its text, it will be possible to resolve all difficulties and conflicts if they arise, so it is better to foresee all troubles in advance.
Forced buyout of shares and pre-trial procedures
This category of disputes necessarily require compliance with
However, it is still recommended to try to negotiate peacefully with the other party, and it is better to do this by sending a written offer to buy out his micro-share from the co-owner, and wait to receive a response, or make sure that there is no response. After this, you can safely go to court with a statement of claim.
Why is this needed? In practice, courts very often clarify this issue and take into account if the plaintiff tried to find a compromise with the defendant before the trial, and this may become one of the arguments for a positive decision for the plaintiff.
In addition, the law states that a dispute between participants in shared ownership must be resolved in court precisely if the owners fail to reach an agreement on the method and conditions for dividing the common property or allocating the share of one of them.
Thus, the fact of sending a written proposal will reliably indicate that the parties have not reached an agreement on this issue.
Legal support in disputes involving the repurchase of a minor share. Tel.+7 (812) 989-47-47 Telephone consultation
