Buying a share of an apartment with a mortgage: conditions and features of the transaction

Good afternoon

What owners, realtors, and cunning entrepreneurs come up with in order to make a profit from the sale of real estate by any means necessary.

I’ll tell you what the sale of so-called small-sized studios (but in fact “pseudo-studios”), common in Moscow, St. Petersburg and other cities, is.

Pseudo-studios have begun to appear on the secondary housing market in Moscow—realtors have noticed this. Such housing is created by remodeling ordinary apartments: a one-room, two-room or three-room apartment is divided into several tiny studios with a separate kitchen and bathroom. They are cheaper, but not all buyers understand the legal risks associated with them.

What is a mortgage on a share in an apartment?

Shared ownership means that the home has several owners, and everyone can dispose of their part of the property at their own discretion: donate and sell. The law allows you to take out a mortgage loan for a share in an apartment. But the deal has some nuances, and banks have the right to impose additional requirements on clients.

Conditions for borrowers:

• citizenship of the Russian Federation;
• registration in the region where they are buying housing;
• age from 21 to 65 years;
• official employment;
• work experience of at least 1 year (in the last position - at least 6 months);
• good credit history.

Before purchasing a share in an apartment with a mortgage, it is important to make sure that the seller has received consent from the other homeowners. The notary draws up the agreement, and all parties to the transaction sign.

Requirements for the purchased part of the premises:

• area - at least 12 sq.m.;
• complies with sanitary and epidemiological standards;
• equipped with communications;
• is not pledged or encumbered.

The bank will refuse if the house in which the housing is located is recognized as unsafe or is subject to demolition. They will not give a loan even if the apartment has undergone illegal redevelopment. Is it possible to buy a share of the mortgage from relatives? Yes, this will not be a deal breaker.

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Fraud with real estate shares

Lawyer Antonov A.P.

Recently, scams involving real estate shares have become particularly widespread.

Fraudsters buy shares in apartments and terrorize residents, extorting money. Imagine this situation.

You are relaxing at home after a hard day. Everything is as usual. Suddenly the doorbell rings. An unfamiliar citizen stands on the threshold, declaring that he has bought a share in your apartment and will now live with you. Before you have time to come to your senses, he is already bringing things in. Real nightmare?

Some people call this apartment raiding. Although this formulation is controversial. In any case, we are talking about a crime. Any person living in an apartment that is common shared property can become its victim. Not every owner of such an apartment understands what threatens him. And when he understands, it will be too late.

The schemers find an apartment that has several shared owners. Then they offer one of them to buy his share. He agrees. The reasons may be different.

For example, an ex-husband, who moved out of this apartment after a divorce, decided to annoy his ex-wife living there.

Moreover, the seller receives one amount for his share, and in the purchase and sale agreement they write another, adding several zeros to it.

After which someone comes to the apartment and claims his rights to part of the living space. Next, the main owner of the apartment is offered a choice: buy the second share at a price clearly higher than the market price or sell his own, several times cheaper than its real value. He, of course, rejects this proposal with indignation.

“No problem,” someone replies. “Then I’m free to do whatever I want with my part of the apartment.” I will rent it out. Now there are many guests from the southern republics in the city who are looking for shelter. I have a couple of candidates in mind. They are great guys who will try not to bother you. You just have to share the kitchen, bath and toilet with them. You're not squeamish, are you?

There are other threats as well. After all, there are many ways to turn a person’s life into hell in the living space that he recently considered his home. As a result, the unfortunate person is ready to accept any conditions.

It must be said that share hunters operate almost legally. However, they still have to step over the line of legality.

According to Art. 250 of the Civil Code of the Russian Federation, when selling a share in the right of common ownership, the remaining participants in shared ownership have the preemptive right to purchase it. They must be notified that this share will be sold. After which they have the opportunity to either purchase it or refuse, which allows them to sell the share to third parties. Fraudsters, in violation of this article, prefer to act without warning in order to catch the victim by surprise.

Therefore, victims in their statements of claim usually point first of all to a violation of Art. 250 Civil Code of the Russian Federation. However, for subjective reasons, the court may refuse the claim. This also happens.

Although the law requires the seller of a share to offer it first to other shareholders, it does not prohibit such transactions from being carried out without complying with this requirement. Therefore, Rosreestr quietly registers them.

And if the court nevertheless recognizes the transaction as invalid and obliges it to comply with Art. 250 of the Civil Code of the Russian Federation? In this case, the seller must offer his share to the other owners of the apartment at the price for which he sold it (in agreement with the buyer). And this price is unreal. This is the purpose of the scam - to sell part of the apartment at the price of the apartment itself. Naturally, the remaining share owners will refuse such an offer (an attempt to challenge this price in court will most likely be useless). And then the situation will return to the starting point.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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Which banks issue mortgages on real estate shares?

For banks, a mortgage on part of an apartment is associated with risks, so not all financial institutions provide such a service. The loan will be given by Sberbank, Alfa Bank, VTB, but the interest rate will be quite high (on average 9-11%). A prerequisite is an initial payment of 15-20% of the total loan amount. It is needed to confirm the client's solvency. Housing loans are given for a period of 10 to 30 years.

Step-by-step instructions on how to take out a share in a mortgage:

1. Contact the bank, write an application, fill out a form.
2. Please allow 5 business days for a response.
3. If the decision is positive, collect a complete package of documents and send them to a financial institution for verification.
4. Select a suitable property and obtain written consent to the transaction from all property owners.
5. Invite an appraiser to determine the value of the share.
6. Make a down payment, get insurance and get a loan.
7. Register ownership in Rosreestr.

What documents are needed:

• Passport.
• A copy of the work book or certificate of registration of individual entrepreneurs.
• SNILS.
• Certificate of income.
• Document on marital status.
• Birth certificate of children (if available).

We recommend calling the bank in advance and asking for a complete list of documents.

The Supreme Court clarified the features of the forced purchase of a share in an apartment during the division of common property

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation published a Ruling dated October 19 in case No. 3-KG21-9-KZ on the division of jointly acquired property of former spouses when it is impossible to allocate a share of the property in kind.

Facts of the case

The marriage between Galina Alekseeva and Evgeny Sokolov was dissolved on November 8, 2021. During the marriage, the spouses jointly acquired property - 1/3 of the share of a two-room apartment. According to the purchase and sale agreement dated October 10, 2013, 2/3 shares in the ownership of the apartment belong to Galina Alekseeva on the basis of an agreement on the division of marital property in a previous marriage dated November 29, 2004.

Later, Galina Alekseeva filed a lawsuit against Evgeniy Sokolov for the division of jointly acquired property, termination of common shared ownership, recovery of funds, and payment of compensation for a share in the right to property. The plaintiff indicated that the defendant does not have a significant interest in the use of the property belonging to him, since he left the apartment and lives with another family, does not bear the cost of housing and utilities, and his share is insignificant (4.7 sq. m of living space and 9.2 sq. m total) and cannot be allocated in kind.

During the trial, the plaintiff clarified the requirements and asked to be allocated 1/6 of the share in the right to the apartment, terminating the defendant’s right to common shared ownership with payment of compensation in the amount of 150 thousand rubles. according to the expert opinion dated February 24, 2021, available in the case materials, on the assessment of the market value of the specified share. In addition, the plaintiff asked to recover from the defendant payment for living quarters and utilities, expenses for paying for the services of a representative, payment for the examination and payment of state duty for a total amount of 125 thousand rubles.

By the decision of the Kirov City Court of the Leningrad Region dated July 17, 2021, the claims were partially satisfied: the former spouses were given ownership of 1/6 of the share in the right of common shared ownership of a two-room apartment. 24 thousand rubles were recovered from the defendant in favor of the plaintiff, as well as legal costs of 27 thousand rubles. The defendant was refused compensation for his share in the right to the property.

Partially satisfying the claim, the court proceeded from the fact that the disputed apartment is the defendant’s place of residence and that no evidence was presented indicating that the plaintiff had funds to pay the defendant fair monetary compensation in exchange for the property he owned. The court explained that funds in the amount of 150 thousand rubles. no deposits were made with the Office of the Judicial Department to secure the claim, and the defendant has a significant interest in the use of a share in the ownership of the apartment.

By the appeal ruling of the judicial panel for civil cases of the Leningrad Regional Court dated November 17, 2021 and the ruling of the Third Cassation Court of General Jurisdiction dated April 5, 2021, the court’s decision was left unchanged.

Conclusions of the Supreme Court

In this regard, Galina Alekseeva filed a cassation appeal to the Supreme Court. The Judicial Collegium for Civil Cases of the Supreme Court recalled that property in shared ownership can be divided between its participants by agreement between them (clause 1 of Article 252 of the Civil Code of the Russian Federation). A participant in shared ownership has the right to demand the allocation of his share from the common property.

Referring to paragraph 3 of this article of the Civil Code, the Court explained that if the participants in shared ownership fail to reach an agreement on the method and conditions of division of property or the allocation of the share of one of them, the participant has the right to legally demand the allocation of his share from the common property in kind. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the owner has the right to payment of the value of his share by other co-owners.

The court emphasized that the disproportionality of the property allocated in kind to the participant in shared ownership on the basis of Art. 252 of the Civil Code, his share in the property right is eliminated by payment of the appropriate amount of money or other compensation. At the same time, the Supreme Court drew attention to the fact that payment of compensation instead of allocating a share in kind is allowed with the consent of the owner.

If the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court can, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation, the Supreme Court explained. It is noted that upon receipt of compensation, the owner loses the right to a share in the common property.

Reasons for refusal to issue a shared mortgage

The applicant will receive a negative decision on the loan in the following cases:

• low income;
• bad credit history;
• the property does not meet the bank's requirements;
• the borrower’s age exceeds the permissible limit (taking into account the loan term);
• no down payment;
• the citizen is not officially employed.

The financial institution is not required to explain the reasons for the refusal.

The buyer has the right to attract a co-borrower, his income will also be taken into account. The property will be divided into parts, the owners themselves will determine the size of the shares.

What is the risk

Dividing an apartment into two or more studios is not a new idea. There are plenty of articles on the Internet with ideas inspiring the conversion of an apartment into several studios, to which are also attached reviews of owners who have completed such redevelopment and then rent out such apartments and earn income from this. In addition, in such articles you will be directly advised to calmly do the redevelopment, despite the fact that the apartment is taken out under the same mortgage... There are also dozens of videos on YouTube about how to do the redevelopment and connect light and water to each room with separate meters. The total area of ​​such housing is about 10–15 square meters. m. Most often, tiny studios are created to be rented out profitably, but offers for sale have also begun to appear on the market.

Of course, there are advantages for buyers. Studios are cheaper than apartments and more comfortable than rooms - due to a separate bathroom and kitchen. But experts advise treating them with caution.

The first question for studio sellers is about remodeling and connecting communications to the premises. Housing Code, as well as Decree of the Government of the Russian Federation dated January 28, 2006 No. 47 “On approval of the Regulations on recognizing premises as residential premises, residential premises unsuitable for habitation, an apartment building in disrepair and subject to demolition or reconstruction, a garden house as a residential building and a residential building as a garden house ", SP 5.413330.2011, SP 31-107-2004 imposes many requirements on developers. For example, a living room should not be less than 9 square meters. m, and the kitchen is less than 8, the entrance to the bathroom cannot be made from the living room or kitchen, and the kitchen cannot be placed above the living room on the lower floor.

Studios are usually located on the ground floors, sometimes higher. Most often, two- or three-room apartments are divided, but rental business owners talk on YouTube about converting one-room apartments. In this case, you have to convert the kitchen into a room. The area of ​​the living space does not exceed 7–8 m, and in some cases is only 5.

According to the head of the department of mortgage lending and financial instruments of the real estate market at the Financial University under the Government of Russia, Professor Alexander Tsyganov, this is not a frequent, but also not an isolated situation in cities with expensive apartments and old housing stock with communal occupancy, that is, in Moscow and St. -Petersburg.

“It is possible to deceive an inattentive buyer, but it is quite easy to check the legality of installing a bathroom in a studio - on the documents for the studio or share in the apartment, all bathrooms must be reflected on the floor plan, there must be documents for payment of utilities, preferably water meters and documents for them,” - he explained to Izvestia.

Elena Mishchenko, head of the city real estate department of NDV - Real Estate Supermarket, noted: in Moscow, owners of such housing do not always put the electrical networks and water supply in order before selling. “They verbally promise to legitimize communications in every room. But in practice, I have not yet come across “studios” with legalized communications. Typically, such housing is acquired by buyers who want to live within walking distance of the metro, but do not have enough money for a full-fledged apartment,” she said.

Alexander Tsyganov emphasized that the studios still remain shares. “Converting a share in an apartment into a separate piece of real estate is possible, but even more complex approvals will be required, and only in this case the studio will become an independent piece of real estate that can be freely disposed of,” the professor added.

The authors of advertisements for the sale of such studio apartments do not directly talk about redevelopment. This can be established by indirect evidence: photographs and footage - the total area of ​​the housing is no more than 10–13 square meters. m. In addition, they are all often located on the ground floor or on the ground floor.

The sellers do not indicate that it is the share that is being sold, and not the studio. In these situations, we are talking exclusively about common ownership, so the housing being sold cannot be called studios. But sellers deceive gullible buyers in exactly this way - by calling the studios shares.

In fact, this is not a division into studios of the object, but a division into shares of an ordinary apartment. The ownership of an apartment may have two or more shares, as we know from the Civil Code of the Russian Federation (Chapter 16). As a rule, at the legislative level it is possible to formalize the procedure for using shares, that is, each owner, for example, is assigned a room. But when selling such pseudo-studios, of course, the buyers do not receive any procedure for using the shares, it is not formalized, and then various surprises arise in practice.

Pros and cons of the deal

The main advantage is the price: a share is much cheaper than a separate apartment. You can subsequently sell your square meters and expand your living space.

Cons of the deal:

• the choice of real estate is limited;
• it is necessary to obtain the consent of all owners;
• you will have to live in the same territory with strangers;
• the property remains encumbered until the debt is fully repaid.

When buying a share in an apartment, a person must understand: housing issues are resolved with other owners. The main thing is to find adequate neighbors, then living together will be peaceful and comfortable.

Acquisition of real estate in common shared ownership

Rosreestr, in its explanations, has repeatedly indicated that a paid acquisition agreement at the expense of the common income of the spouses can be considered as an agreement containing elements of a marriage agreement (and, accordingly, it must be concluded in notarial form), if the parties to the agreement indicated that this agreement was concluded in including in accordance with the norms of the Family Code of the Russian Federation, in particular, its articles 41, 42, it clearly expresses the will of the spouses to change the regime of joint ownership established by law, defines the procedure for the use of property in shared ownership and its division in the event of divorce .

It should be noted that this issue is not problematic if each of the spouses separately acquires in their own name a share in the right to the same property at different periods of time, both shares will also be in the common joint ownership of the spouses.

At the same time, if shares in the right are acquired by spouses at the same time, there is no unambiguous interpretation of the legal position by the Territorial Directorates of Rosreestr in different regions.

So, is it possible for spouses to acquire a property in common shared ownership under a real estate purchase and sale agreement concluded in simple written form, at the expense of the spouses’ common income, if they state in the text of the obligation that each of the acquired shares in the right also falls under regime of common joint property of spouses in accordance with the Family Law of the Russian Federation.

In accordance with Art. 244 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), property owned by two or more persons belongs to them under the right of common ownership.

In addition, property can be in common ownership with the determination of the share of each owner in the right of ownership (common ownership) or without determining such shares (joint ownership).

does not imply the formation of both joint and shared ownership of the property.

According to Art. 128 of the Civil Code also includes objects of civil rights, including cash and documented securities, other property, including non-cash funds, uncertificated securities, and property rights.

By virtue of Article 256 of the Civil Code, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property; the rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law.

At the same time, according to Article 33 of the Family Code of the Russian Federation (hereinafter referred to as the FC), the legal regime for the property of spouses is the regime for their joint ownership; The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.

Property acquired by spouses during marriage is their joint property; The common property of the spouses also includes real estate acquired at the expense of the common income of the spouses and any other property acquired by the spouses during the marriage, regardless of which of the spouses it was acquired in the name of or in the name of which or which of the spouses contributed funds (Article 34 of the Family Code) .

Clause 90.1 of the Procedure for maintaining the Unified State Register of Real Estate, approved by Order of the Ministry of Economic Development of Russia dated December 16, 2015 No. 943, stipulates that upon state registration of a share in the right of common shared property coming into the joint ownership of spouses:

— information about both spouses is indicated in one record of property rights;

- in relation to the type of right, the words “common shared ownership” are indicated in the record of right;

— after indicating in the entry on the property right the size of the share in the right of common shared ownership, the words “in joint ownership” are indicated.

By virtue of the provisions of Article 41, the spouses have the right to change the statutory regime of joint ownership by a marriage contract, which is concluded in writing and subject to notarization.

The appeal concerns the acquisition by spouses of a property by purchasing shares in the right to it, when, in accordance with the agreement, they indicate that they are acquiring shares in joint ownership.

As a general rule, if the owner transfers a real estate object to several persons simultaneously on the basis of a transaction, such acquirers acquire the right of common shared ownership of this object, unless the law provides for the possibility of forming common joint ownership of it.

When the right holder alienates a property owned by him (as a whole) into the ownership of the spouses, the latter acquire the right of joint ownership of the property, unless otherwise established by agreement between them; the right of common shared ownership of a property acquired by spouses can arise only if the legal regime of the property of the spouses is changed by them by concluding a marriage contract, including the terms of the marriage contract will be contained directly in the contract of sale and purchase of the property, in connection with which, it will be subject to notarization.

Based on the foregoing, we can conclude that spouses, acquiring a property as shared ownership, enter into an agreement containing elements of a marriage contract, since it expresses the will of the spouses to change the regime of joint ownership established by law, and therefore, this agreement is subject to notarized certification.

What it is

As a rule, the division includes three-room apartments on the first floors of houses that are being rebuilt.
Concrete partitions are dismantled and new frame partitions are installed in their place. As a result, one apartment turns into 4 separate living spaces, each of which has its own bathroom combined with a toilet and its own entrance from the street. Sellers have not yet chosen a single name for such apartments, but they are often presented on the real estate market as “new format studios.” “Such apartments can formally be compared with communal apartments, but there is one very significant difference - these studios are completely autonomous and do not have common areas. And this is precisely the main problem of any communal apartment,” explains Olga Solodovnikova, head of the secondary real estate department of the Big Realty agency.