Sample statement of claim for the allocation of a share in kind in a residential building

Legal regime of marital property

The RF IC determines that property acquired by spouses in a legal marriage with funds from the common family budget is joint property (Article 33). If they wish to establish a different form of ownership, then before or after the wedding they have the right to draw up a marriage contract (Article 42).

If one of the spouses has such a desire, then the division of property in common ownership can be carried out both during the marriage and after its dissolution. A third interested party may also request the procedure.

For example, creditors who need to collect debt from a husband or wife.

Spouses have the right to divide joint property through a settlement agreement. The division may be carried out in kind or in shares (Article 38 of the RF IC).

If we are talking about real estate, then the spouses own it as joint property or draw up an agreement to determine the share. If controversial issues arise in the division of property, the husband or wife have the right to file a claim in court. When dividing common property in 2020, the shares of the spouses will be recognized as equal, unless other conditions are fixed in the marriage contract. When a real division of property is made, each spouse receives real estate according to the previously awarded shares.

When and why is it necessary to determine shares?

Common ownership of residential premises does not always give an idea of ​​what part of the housing belongs to each of the co-owners. Whether they own the apartment equally, or whether one of the owners has the right to a larger share than the other, joint ownership will not give a clear answer to this. Title documents can only indicate the composition of the owners, which in some cases is not enough, then the allocation of shares of each of them will be required.

For example, a mother and two sons inherited a three-room apartment with a total area of ​​90 square meters from a relative. meters. The will did not indicate the size of the inherited parts of each of the beneficiaries, but it was stipulated: since the heiress at one time helped the testator to pay off the loan for the apartment free of charge, in monetary terms her help amounted to 600 thousand rubles, therefore her part of the inheritance should be increased equivalent to her contribution in the purchase of housing.

The entire apartment was valued at 3 million rubles. Thus, in monetary terms, the shares were:

3,000,000 – 600,000 = 2,400,000/3 = 800,000 for each of the sons and

800,000 + 600,000 = 1,400,000 mother.

The shares were allocated as follows: the mother was assigned 46% of the apartment, and the sons were assigned 27% of the living space. by area the shares were distributed as follows:

the mother received a part of the apartment equal to 41 square meters, the sons were given shares of 24 square meters each.

The most common situations when it is necessary to determine shares:

1. Divorce proceedings followed by division of jointly acquired property. Of course, most often spouses own the living space in equal shares, and accordingly, during a divorce, they divide the living space in half, but there are often situations when one of the spouses added personal funds to purchase an apartment, or a marriage contract was drawn up, which stipulates a different division procedure. In these cases, determining the shares is necessary.
2. Intention to dispose of one's share contrary to the wishes of the other co-owners. For example, one of the owners moves to another locality and he needs to allocate his share in order to sell it, or receive monetary compensation for his part of the apartment from other co-owners, but since it is not known exactly what area he owns, it is also necessary to determine his shares.
3. Opening an inheritance case. Inherited property is not always transferred equally to all applicants; for example, the spouse of the deceased, according to the law, has the right to half of his property, and the other half is inherited by other beneficiaries, often also in different shares.
4. Transfer of part of the residential premises to minor children.

Determining shares in the situations listed above, as well as in other, more rare cases, makes it possible to establish the specific part of each property in a common residential area. But there is a limitation here: not a single share, even the smallest one, should be below the minimum permissible size in the region, usually 12-16 square meters per owner.

This procedure can be performed in one of three ways:

• conclusion of a voluntary agreement;
• determination of shares in accordance with the marriage contract;
• filing a claim in court for forced allocation of shares.

Marriage contracts in our country are concluded quite rarely, and of the other two options, the most optimal is the conclusion of a voluntary agreement.

Where to submit documents

The allocation of a share in court is the prerogative of courts of general jurisdiction (not arbitration courts). Depending on the value of the claim, cases are considered:

• magistrate - if the cost of the claim is no more than 50 thousand rubles;
• district court - in all other cases.

If the allocation concerns real estate, then the vast majority of claims are heard in district courts, since the cost of the dispute is quite high.

You can submit a set of claim documents as follows:

• appearing in person at the court office;
• by mail - a registered parcel with a description of the contents.

Electronic filing of claims has not yet been practically implemented, so it is recommended to use one of the methods listed above.

Differences between joint and shared ownership

Citizens sometimes cannot distinguish between the concepts of common joint and common shared property. Even if you read the articles of the Civil Code of the Russian Federation carefully, the meaning of the phrases is identical, but to draw up a legal document it is very important to choose a subtype that is correlated with a specific case.

Subtypes of common property:

1. Common property based on the right of joint ownership.
2. Common shared ownership.

What's the difference? Everything is very simple. In the first case, the thing initially has the status of a common one without the presence of separate parts. Shared ownership, on the contrary, involves the separation of a certain part from a single object. As an example, consider a shared apartment, which according to the papers is owned by two or more persons. If you look at the document certifying ownership, it will indicate a specific share, for example, ½ belongs to Ivanov, 1/5 belongs to another person, etc. Individuals already have a clear idea in advance of what exactly they can claim when dividing the property.

Premises requirements

When dividing housing, the interests of other co-owners should not be infringed. Each type of premises has its own requirements. The most difficult thing is to divide a city apartment.

In the apartment

Allocation of part of the housing in kind is possible if each owner receives a dwelling isolated from the other owners. It will not be possible to perform a similar manipulation with a room in a communal apartment or a living room. The court will ask the defendants to pay money to the plaintiff. The amount he can count on should not exceed the actual value of his share.

We invite you to familiarize yourself with the division of shared property upon divorce of spouses

The difficulty of this section is that standard apartments have a layout that does not allow the creation of additional separate exits to the street, bathrooms and food preparation areas. The owners can continue to live under one roof, while one of the owners will be allocated a separate room. On the basis of joint ownership, apartment residents will continue to use non-residential premises allocated for common services.

In the house

Households are subject to division if it is possible, without damage to the main walls, to complete a separate exit, kitchen, and bathroom for one of the co-owners. If the house has a small area, a person claiming to allocate his share in kind can only count on monetary compensation for the cost of his part.

Co-owners have the right to divide the land plot on which the house stands. The selection of parts in kind is carried out in compliance with the prescribed rules:

• a plot smaller than that permitted by law cannot be allocated;
• the allotment must retain its purpose;
• the plot cannot intersect with someone else's land;
• the creation of new plots with broken boundaries is not allowed;
• Before signing the agreement, land surveying must be carried out.

The land must be under the allotment of the house and have a line of contact with the street. Its owner has the right to use his part of the site to create a separate exit and extensions.

In the garage

The garage and other outbuildings are also subject to division. Non-residential premises may continue to be used jointly by co-owners, but in this case the share of the land plot located under the buildings will be allocated in kind.

If it is not possible to agree on the procedure for joint use, the remaining owners have the right to buy out the share of the garage from the plaintiff. By law, co-owners have first right to purchase the saleable portions of jointly owned property.

Ideal and real shares

By law, each spouse has the right to half the apartment, even if the rooms are unequal. In legal practice this is called the “ideal share”. There is also the concept of “real shares”: the parties, by concluding an agreement, secure the right of each to dispose of (and sometimes use) one of the rooms.

Even the court can deviate from the ideal share and determine the share of one of the spouses to be greater than the other. This happens if during the course of married life the husband invested personal funds and made improvements to the property. Or if after a divorce the children remain with their mother.

Timing and cost

The price that the case and the claim for the allocation of a share from the applicant will require depends on the number of services required.

Additionally, notary services may be required:

• power of attorney – up to 1,000 rubles;
• certification of the accuracy of copies - 100 rubles, the price of a copy.

The cost of a technical report for a statement of claim is set by an expert and can amount to several thousand, and sometimes tens of thousands of rubles. The price depends on the complexity of the object research. If an examination is ordered as part of a trial, its cost is usually higher than for a personal pre-trial application.

The cost of legal services also depends on the complexity of the case. Conducting a case by a representative costs from 10,000 rubles for the first instance.

The consideration of the case can take up to several months. This period includes the preparation of the case, consideration of its merits, a detailed examination of evidence, and the appointment of an examination. According to the Code of Civil Procedure of the Russian Federation, 2 months are allotted for the hearing, however, due to the workload of the courts and the complexity of the circumstances, the process is most often delayed.

After the decision is made, the parties have one month to appeal it. If the appeal is not filed, the decision will come into force. Otherwise, the review period should also include an appeal period, which can also take several months.

We also recommend that you find out in more detail about the allocation of a share from the common shared property.

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Shares for an apartment or residential building

The terms of the agreement on the allocation of shares may establish any size thereof. It should be taken into account that after the procedure, each transaction with this real estate will require notarization. Regardless of the size of the allocated share, each owner is an equal participant.

Determination of shares based on maternity capital

Federal Law No. 256 establishes that if real estate was acquired or reconstructed using maternity capital funds, then a share in the apartment must be allocated to each family member. This means that if maternity capital was accrued after the birth of the second child, then both children and each parent should receive equal shares (provided that the spouses are married).

Should maternal capital be shared by the father?

Not really

Since April 2020, the procedure for allocating shares for minor children in property has been simplified. Now, if the apartment was initially registered as joint property, when drawing up an agreement, you do not need to have it certified by a notary. But if the property is in shared ownership, contacting a notary office is necessary.

Determination of shares in a mortgaged apartment

An agreement to determine shares in a mortgage apartment in 2020 cannot be valid until the loan debt is fully repaid. It’s just that the bank that holds the property as collateral will not give permission to carry out the transaction, because this will require changes to a large number of documents.

Determination of shares between spouses and children

If there is a need to determine shares in property between relatives, then, at the request of the parties, the agreement is drawn up in simple written form. When a transaction affects the interests of minor children, it is required to initially obtain the consent of the guardianship authorities. Parents or guardians are required to represent the interests of the child. They also sign the text.

Evaluation procedure

When problems arise when calculating part of the property, you need to think about how to evaluate the share in the apartment. Knowing the cost of your part, it will be much easier to resolve the housing conflict. Perhaps the citizen will be satisfied with the payment of compensation, which will be commensurate with the price of the property. The cost of a share in an apartment should be determined by experienced experts in this industry, since the procedure requires high qualifications and a sufficient range of knowledge.

How to calculate the cost of shares in an apartment will become easier to understand if you study all the circumstances and factors that can affect price indicators. The main elements taken into account when calculating the cost are:

• existence of a procedure for the general use of property;
• the possibility of arranging a separate entrance to the apartment;
• large living area;
• availability of separate rooms;
• the total number of shareholders and tenants registered in the apartment;
• minor children registered in the living space;
• other factors and circumstances.

Read also: How to properly lift the ban on real estate transactions

When buying part of a home, people want to see perspective and the opportunity to be separated from their neighbors. If several shareholders sell their shares, then the chances of finding a buyer are higher, as is the value of each share. Do not forget that if you decide to sell your part of the apartment, you must notify the co-owners of the property in writing.

They have priority right of purchase. If they do not respond to the notice within a month, this will give the seller the right to offer his property to people from outside. You cannot stand your ground and immediately offer to sell to a stranger. In such a situation, co-owners can file a lawsuit and cancel the transaction, having achieved the transfer of rights to themselves.

The nuances of signing a division agreement in kind

If the co-owners of the property wish to receive not a hypothetical, but a specific separate housing, they can formalize the allocation of a share in kind in the common shared property. If in a regular agreement on the division of property the shares between the co-owners are allocated on paper, then in the case of a natural equivalent, each should receive a separate, autonomous housing or part of the land plot.

If it is impossible to divide the property into parts isolated from each other (for example, if a one-room apartment is in collective ownership), the co-owners agree on monetary compensation. Before submitting to the MFC and Rosreestr, documents on the delineation of real estate in kind must be certified by a notary in the presence of all co-owners. IMPORTANT! The property should not be pledged to the bank or be under arrest in the SSP, otherwise the agreement will be declared invalid.

Filing a claim

Writing the text of the claim is the most important point in preparing for the trial. It must reflect the parties to the proceedings, the actual circumstances of the current situation, your requirements, links to articles of the law and a list of evidence (applications) on which the requirements are based.

Application form

The statement of claim for the allocation of a share consists of the following structural elements:

1. Header - written in the upper right corner of the first sheet. The cap can be quite long if there are many owners. Don’t be afraid of this, even if it takes up the entire first sheet. The price of the claim and the amount of the state duty are also indicated here.
2. The name of the claim depending on the requirements, for example, “Statement of claim for the allocation of a share in the right of common shared ownership of a residential building in kind.” You can limit yourself to the usual “Statement of Claim,” but this may cause difficulties in identifying the case in court.
3. Description of factual circumstances with references to legal norms. Here is a precise description of the common property, the type and size of the shares belonging to all owners. It is also necessary to indicate the reasons that prompted the filing of a claim for the allocation of a share, as well as whether an agreement on the division was reached before the trial. The specific method of division that the applicant wishes to achieve must be provided. Finally, the applicant lists the evidence he will rely on in court and the articles of law that support his position.
4. The plaintiff's demands (after the word “Please”). You can ask to allocate a share in kind, to pay compensation to one of the parties in connection with the allocation, or both demands at once - depending on the circumstances.
5. List of applications, date of filing and signature of the plaintiff.

How to correctly draw up an agreement on the allocation of a share in kind

Citizens who own a property under the right of common ownership have equal rights to use and dispose of this property. Moreover, each of the co-owners has a certain share in the property right.

For example, if a residential property is jointly owned by three citizens, then each of these citizens can own 1/3 of this property. Another distribution of shares is possible: one citizen owns 1/2 of the object, and the shares of the remaining co-owners – 1/4.

An agreement to allocate a share in kind is an agreement reached between all co-owners, as a result of which the share of each of these co-owners changes from a percentage to in kind. The easiest way is to allocate a share in kind from a land plot.

The process of allocating a share from a residential property is much more complicated. As a result of such allocation, each owner must receive a property suitable for living.

Based on the norms enshrined in the current legislation of the Russian Federation, the agreement on the allocation of a share in kind must contain the following information:

• surnames, first names and patronymics of citizens who own a property by right of common ownership, as well as details of identification documents of these citizens and contact information;
• a detailed description of the subject of the transaction being concluded. It is necessary to list the main technical characteristics of the property from which shares in kind are allocated;
• a clear definition of shares, both allocated and remaining in common property;
• information about the documentation establishing the right of citizens to own shares in this real estate property.

Let us note that the agreement on the allocation of a share in kind is drawn up on the basis of full consensus of all participants in the common ownership. The agreement includes a clause stating that it is impossible for one of the participants to terminate this agreement unilaterally.

We especially emphasize that no encumbrances should be imposed on the property from which the share in kind will be allocated. That is, this object should not be pledged or under arrest.

Thus, an agreement on the allocation of a share in kind is a documentary registration of the voluntary expression of will of citizens who own a property on the basis of common ownership rights.

Attention! If it was not possible to reach an agreement on the allocation of a share in kind, the citizen who initiated this process will have to apply to the courts with a claim for the forced allocation of a share in kind.

Separately, we note that based on the norms enshrined in Part 4 of Article 252 of the Civil Code of the Russian Federation, in a situation where a property cannot be divided into natural shares, the owner who initiated the separation process must buy out the shares of the remaining co-owners.

How is compensation paid during the property allocation of a share?

In cases where the value of the property intended for allocation is less than its property share, the initiator of the procedure has the right to monetary compensation equal to the difference between the property share and the actually allocated share.
All conditions for payment of monetary compensation, as well as its amount, are stipulated in the agreement. According to paragraph 4 of Art. 252 of the Civil Code of the Russian Federation, in cases where actual allocation is impossible, the remaining co-owners are obliged to pay the initiator of the division monetary compensation for his part of the property. In this case, the co-owner who decided to allocate his share loses ownership of the property, the remaining co-owners share his part of the property in equal shares or other shares specified in the agreement.

For example, three brothers are co-owners of a two-room apartment in equal shares. The elder brother decided to move to another locality and invited the other two to allocate his share in kind. A technical expert invited by the older brother concluded that the allocation of a share in kind was impossible, that is, the only option for allocating a share was payment to the initiator of the procedure by the other two co-owners of monetary compensation for his part of the property.

The middle brother did not have the financial ability to pay his share of the debt; the younger brother took on the entire payment. The agreement on the allocation of shares stated that the younger brother pays the older brother monetary compensation in full, and the older brother’s share completely becomes the property of the younger brother. Thus, one co-owner retained his 1/3 share of the apartment, the second became the owner of 2/3 of the living space.

Price

Certification of an agreement on the allocation of a share in kind at a notary office is a paid procedure. Payment is made either by the initiator of the allocation, or the amount to be paid is divided between all co-owners; this will depend on how the co-owners of the property decide among themselves.

The amount you will have to pay directly depends on the cadastral value of the allocated part of the property. According to paragraphs. 5 p. 1 art. 333.24 of the Tax Code of the Russian Federation, the payment amount will be 0.5% of the monetary equivalent of the allocated share. There is a lower and upper limit for the payment: it cannot be lower than 300 and higher than 20,000 rubles.

Payment calculation example

Vadim is a co-owner of a large plot of land, which he owns jointly with the other two owners in equal shares. The cost of the storage unit is 15 million rubles. In this case, the allocated share in monetary equivalent will be 5 million rubles. Let's calculate the payment amount:

5,000,000 * 0.5% = 25,000 rubles.

But since the upper limit of payment cannot be higher than 20,000 rubles, when certifying the agreement at the notary’s office, Vadim will have to pay exactly 20 thousand rubles.

Does the agreement need to be registered with a notary?

Until the beginning of 2020, the agreement on the allocation of a share in kind was not subject to mandatory certification by the notary authorities. However, from the moment the federal law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate” came into force, agreements on the allocation of shares in kind are subject to mandatory certification by notaries.

On the one hand, this increases the costs of citizens, but on the other hand, it simplifies the process, since a notary will draw up the agreement.

Judicial order

Owners can divide the home by agreement of the parties without judicial intervention. Filing a statement of claim, the services of appraisers, and lawyers cost money. Is it worth spending money if relatives can come to an agreement without conflicts? The agreement on the allocation of an apartment share in kind is signed by all parties and certified by a notary.

A new technical plan of the premises is needed so that the isolated part of the living space appears not only in the draft agreement, but also in the BTI drawings. If the apartment has to be rebuilt, then a technical plan is necessary to legitimize the redevelopment.

Home owners or their authorized representative can submit an application to the BTI. In this case, a power of attorney addressed to the legal representative is attached to the documents. The owner must provide to the BTI:

• adult passports and birth certificates of minor home owners;
• papers allowing to establish the ownership of real estate;
• application for a site survey and creation of a new technical passport;
• a paid receipt for the fee charged for the services of government organizations.

We invite you to familiarize yourself with the Power of Attorney for negotiations without the right to sign

BTI employees may refuse to issue a technical passport to the applicant if:

• he is not the owner and does not have a power of attorney from the owners of the property;
• the presented package does not contain the necessary documents;
• the application is misspelled and lacks required information.

One of the reasons for refusal to perform a service may be the lack of a receipt confirming payment of the state fee. In 2020, its amount starts from 1200 rubles. and sometimes can reach 15,000 rubles.

The technical passport will be processed and issued after 10-14 working days. The processing time for information depends on the area of ​​the property. If its size is more than 1000 sq. meters, BTI workers will need up to 20 days to create a new passport. The cost of a housing passport depends on several components:

• urgency of execution - 1000 rub.;
• payment for intermediary services - from 1500 to 2000 rubles;
• The amount of state duty is from 1200 rubles.

The final amount depends on the complexity of the measurement.

The allocation can be made on the basis of an agreement between the parties to determine in kind each share of a residential property. Only those documents certified by a notary office have legal value. The agreement scheme is very simple. If in kind the premises transferred to the allocated person are more than his share, then he must pay extra to his co-owners. If a smaller area is transferred to him, then the remaining owners will compensate for the losses of the allocated person.

A sample agreement can be downloaded from this link.

The cost of notary services depends on the price of the property. The lawyer will not certify the division of the seized or encumbered apartment. The parties provide the notary with:

• agreement of the parties;
• USRN extract;
• all documents identifying the legal owners;
• house book;
• technical certificate;
• passports of adult co-owners and birth certificates of children.

For more information on the procedure for drawing up an agreement, read this material.

After concluding an agreement and transferring a share, the legal manipulations with real estate must be recorded by the relevant government agency.

The agreement of the parties to determine the shares of housing in kind is submitted for registration to the MFC (My Documents organization), from where it is transferred to the Rosreestr office. Registration of cadastral records is carried out on the basis of an application. Along with it, the government agency employee is provided with:

• power of attorney addressed to the legal representative (if the papers are submitted by authorized representatives);
• passports of all adult registrants and birth certificates of minor owners;
• agreement of owners, certified by a notary;
• home Book;
• technical passport of the property;
• a receipt confirming payment of the state duty.

It takes 7 working days to register shares; if the documents were transferred through the “My Documents” organization, the processing time and making changes increases by another two days. The state service of registering rights after the allocation of property in kind will cost 2,000 rubles per citizen.

When the parties are unable to reach an agreement, they will have to allocate shares in court. Any home owner has the right to file a claim. Along with the application, all necessary documents, certificates, and extracts that the court may need during the proceedings are submitted.

When considering a case, the court will rely on documents representing the evidentiary base, these include:

• independent assessment examination;
• checks proving financial investments in the repair and construction of the home of one of the parties;
• marriage contracts.

When allocating a separate part in kind from the common shared housing property, the interests of minor children and disabled people will be taken into account. Therefore, the parties are obliged to notify the judicial authorities of the presence of owners and tenants who have special rights. The package of documents presented to the court includes:

• technical passport (taken from BTI);
• documents identifying the owners of the home;
• an extract from the Unified State Register of Real Estate (ordered from the MFC or on the Rosreestr website);
• house book (extract from it);
• certificate from place of residence;
• order;
• contract of sale.

The key point for accepting the case is a receipt for payment of the state fee. Its cost is calculated based on the claim:

• if the disputed property is valued at less than 20,000 rubles, then the applicant is due 4% (but not less than 400 rubles).
• when the housing shares to be divided cost from 20,000 to 100,000 rubles. the plaintiff must pay 3% to the state treasury;
• if the financial claims of the parties exceed 100,000, but less than 200,000, then the duty will be 3,200 rubles. 2% of the disputed amount;
• at a price from 200,000 to 1 million rubles. the state is owed 5200 1%;
• when the price of the disputed property exceeds 1 million rubles. the plaintiff must pay a fixed state fee of 30 thousand rubles. 0.5% of the amount exceeding the threshold of one million rubles (but not more than 60 thousand rubles).

We invite you to familiarize yourself with the Reprimand with the basis entered into the work book

Filing a claim

You can draw up a claim for the allocation of an apartment share yourself using a sample. But in order to avoid mistakes and provide for nuances, it is better to seek help from the lawyers of our portal. The completed documents should be submitted to the district or magistrate court.

You can submit an application in several ways:

• personally;
• by mail with acknowledgment of delivery;
• through a trusted person.

It is not possible to allocate a share in every apartment. As a result of the division of property, the plaintiff must receive in kind not only an isolated room, but also a separate kitchen, access to the street, and a shower room. A city apartment with a certain type of layout is not subject to reconstruction.

As judicial practice shows, during the proceedings the procedure for using residential real estate can be determined. If such a decision does not suit the plaintiff, he has the right to sell his part of the home to one of the owners or divide it equally among all. After this, he loses the right to live in this apartment.

Required documents

To formalize the allocation of a share in kind, you will need to provide cadastral documentation for the property being divided.

In addition, to carry out the state registration procedure, you will need to provide the following documentation:

• cadastral passport of the property from which the share is allocated;
• technical plan of this facility;
• documentation confirming citizens' ownership of this property.

In addition, you will need to attach financial documentation confirming that the state fee has been paid.

Allocation of shares in an apartment

An agreement on the allocation of shares in an apartment is drawn up on general principles that are taken as the basis when concluding such transactions. The document must be submitted to the notary's office for verification. The act is drawn up on a regular sheet of A-4 format. Information that must be indicated in it about the separation of real estate from joint ownership:

1. Personal data of each apartment owner.
2. Cadastral and technical information about the residential premises (indicate dimensions, legal address, type of construction, etc.).
3. The amount of shares due to each party after the conclusion of the agreement. In order for the notary to be able to immediately fill out the deed, it is necessary to determine in advance the exact size of each share and provide a technical document with a detailed floor plan.
4. Title papers. A document confirming the ownership of each party to the agreement on the divisible property.

In addition to the main package of documents, the parties must provide certificates of the absence of utility liens.

Allocation of shares in maternity capital

Maternity capital is one-time financial support for families who have had a second and subsequent child. Initially, the allocation of funds was aimed at improving the demographic situation and creating favorable conditions for the development of the child himself.

In many ways, it is the intended purpose that is associated with the obligations of the parents to enter into an agreement on the allocation of part of the property to the children. In other words, when including capital funds in the mortgage lending program, it is necessary to prepare an obligation with a notary, according to which the parents will assign a certain part of the future apartment or house to the property of their children.

There are two ways to transfer a share to children:

1. By concluding a preliminary agreement. You can draw up the document yourself or go to a notary who has ready-made forms to fill out.

On a note! Drawing up a deed with the involvement of a notary costs approximately 1,000-3,000 rubles - it all depends on the specifics of the property being divided.

2. By concluding a gift agreement. A gift agreement is considered a more economical method, since the document does not require notarization.

If the owner of maternity capital chooses to conclude an agreement, he will have to contact a notary, collecting the following papers:

• A document indicating that the spouses are married.
• Passports of both spouses, as well as the birth certificate of each child.
• MK certificate.
• A document for an apartment or house, from which shares will be allocated for each family member.
• A copy of the notarial undertaking. The obligation documents the determination of the spouses to re-register the real estate acquired with funds from capital into the status of common shared ownership.
• Extract from the Unified State Register.

Having in hand a certified sample of a notarial agreement on the distribution of part of the real estate acquired with the inclusion of funds from capital, the family must contact the nearest branch of the MFC to give the document legal force.

The minimum share of an apartment or house that a child can claim is 6 m².

The division of common shared property, as well as other procedures related to the ownership and disposal of joint property, is carried out on the principle of equality of the parties. If a preliminary agreement has not been reached between the participants, all shares are recognized as equal, but with the retention of the right of pre-emption in the event of sale to other persons.

In what cases can an agreement be drawn up?

It must be emphasized that the main requirement imposed by the current legislation of the Russian Federation on an agreement on the allocation of a share in kind is complete voluntariness. In addition, if we are talking about allocating a share in kind from a residential property, several premises suitable for living should be formed, separated from each other.

If a share in kind is allocated from a land plot, then each plot of land formed as a result of the division must have a separate driveway.

It is quite simple to allocate a share in kind from a land plot. But if we are talking about allocating a share from a residential property, the situation becomes much more complicated. Quite often, in order to allocate a share from a residential property, redevelopment is required. Redevelopment, in turn, requires obtaining various approvals.

Important! The law provides for the possibility of allocating a share to only one of the co-owners of the property. In such a situation, the remaining citizens will continue to own this object on the right of common ownership.

If it is not possible to allocate a share in kind, then the citizen who initiated the allocation process can buy out the shares from the remaining co-owners. At the same time, the value of the shares of these citizens is determined by independent appraisal companies or on the basis of an agreement with the citizen who wants to buy out these shares.

If at least one of the co-owners objects to the allocation of a share in kind from a residential property, it will not be possible to conclude an agreement. In such a situation, you will need to go to court with a claim for the forced allocation of a share in kind.

Why you may need to allocate part of your housing?

Over time, the relationship between owners may change.
As a result of misunderstandings between people, conflicts arise, on the basis of which shared housing becomes a subject of contention. Any co-owners: former spouses, adult children, relatives or unrelated citizens have the right to allocate a share. Common reasons for dividing a house (apartment):

• Two families have formed under one roof, and the married son wants to live separately from his parents. The allocation allows you to sell a share in order to further purchase your own home.
• Former spouses do not want to live in the same home.
• One of the co-owners intends to dispose of his share.
• The debtor's share in enforcement proceedings is allocated.

The owners can agree among themselves and sign an agreement on the allocation of each part of the housing in kind. Before formalizing the agreement, the family contacts an independent appraiser. Based on the obtained expertise, all participating parties calculate the cost of the allocated share. If it is not possible to allocate a part in reality, then the person who wishes to live separately, with his consent, the remaining owners:

• They buy a home, the price of which corresponds to its part of the apartment.
• They give money. The allocated person can add his own funds to the amount received and purchase real estate to his liking.

If the co-owners of the home cannot agree on their own, the problem will have to be resolved in court. Any of the owners has the right to file a claim for the allocation of shares from the common joint property, regardless of how long ago the property was acquired.

Owners who require the allocation of their part of housing in kind may pursue the following goals:

• determination by the court of the order of use of living space and utility rooms (bathroom, kitchen, storage room);
• determining the share of each party for concluding a marriage contract between spouses;
• division of property of former spouses;
• performing legally significant actions with property allocated in kind (donate, sell, bequeath) without the consent of other owners.

The first option is used when the parties intend to continue to coexist after division in the same dwelling, but it is not possible to allocate a separate bath and toilet along with the living square meters. It is difficult to divide a city apartment with a standard layout into autonomous parts and add a separate entrance.

The allocation of a share in kind is made on the condition that after this the apartment:

• will remain habitable;
• will be used for its intended purpose.

Sample agreement on the allocation of a share in kind in common shared ownership

The legislation does not provide for any unified forms of agreement on the allocation of part of a real estate property in kind. But the minimum requirements for drawing up the document will still have to be met. The document must contain the following information:

• personal data of all signatories (full name, registration addresses and passport details);
• date and place of conclusion of the agreement;
• a brief description of the object from which the share is allocated: house, apartment, land plot, address of the property, technical and cadastral information, additional number of floors for buildings, availability of communications;
• on the basis of what documents the right of shared ownership of real estate arose;
• the size of the shares of all co-owners;
• the size of parts of the property retained by the co-owners after allocation;
• in the case of payment of monetary compensation for the allocated share - the amount of this compensation and the method of payment;
• information about the notary responsible for registering the agreement;
• the rights and obligations of all signatories;
• a record that the property has no encumbrances in the form of arrest and is not pledged;
• a record that the signatories have no material claims against each other;
• other information.

If you are a co-owner of any property and decide to separate your part of the property into a separate property, do not try to do this yourself, without the involvement of an experienced lawyer. Of course, at first glance, this procedure seems simple and understandable, but each individual case has many “pitfalls” that are invisible to an inexperienced person in jurisprudence.

It’s quite easy to make a mistake: an incorrectly indicated share size, a legal error in the writing of any clause of the contract, documents not collected in full or not those that are required - all this, at best, can slow down the procedure, at worst, make it impossible .