Real estate division in kind, real division

Shared and joint ownership

Common property can be shared or joint.

Joint ownership - when a thing is owned by 2 or more people, and in what shares they own is not defined. For example, when a husband or wife buys something, they have just such, joint ownership of this thing (Article 34 of the RF IC). It does not matter which spouse the item (an apartment or a car, for example) is registered in the name of.
Shared ownership - when a thing is owned by 2 or more people, and it is determined in what shares they own. For example, the husband owns ½ of the apartment and the wife owns ½ of the apartment.

It is important to know: this is why, in order for one of the spouses to sell an apartment, the second spouse’s notarized consent to this sale is required (Article 35 of the RF IC). After all, the sale transaction is made on behalf of one spouse, but both own the apartment being sold. Therefore, the consent of the second is required.

Division of an apartment in shared ownership

An apartment that is jointly owned cannot be divided. In order to divide it, you need to allocate a share in the apartment, that is, determine which spouse owns which part of the apartment (Articles 38, 39 of the RF IC). You can allocate a share in an apartment:

during marriage;
during a divorce;
after divorce.

That is, whenever, in other words.

The allocation of a share can take place:

voluntarily, i.e. spouses simply agree on who owns what share. In this case, you need to draw up an agreement on the division of the share in the apartment and have it certified by a notary, only then will it have legal force (Part 2 of Article 38 of the RF IC). If the spouses divorce, the court will take this agreement into account;
according to the court. If the spouses cannot agree, the court will decide who owns what (if the spouses file a claim in court for the allocation of a share, of course). In this case, the court will proceed from the fact that the shares of the spouses are equal (Part 1 of Article 39 of the RF IC).

It is important to know: it would seem that everything is simple. But the same principle “the shares of the spouses are equal” has a lot of nuances and exceptions, and the court may recognize the shares as not equal, but give one spouse ⅔ of the apartment, and the other ⅓, for example. To find out the intricacies of these situations, sign up for a consultation - the consultation is free and does not obligate you to anything.

Is it possible to divide an apartment after a divorce?

If the apartment is joint property, then the answer will be clear: yes, it is possible. But only property that was purchased with joint funds during the marriage is subject to mandatory division. All funds received from the income of a married couple are considered joint, with the exception of those funds received:

each spouse before marriage;
married, but for special purposes (maternity capital, cash payments to the liquidators of the Chernobyl disaster, etc.);
as a gift, as an inheritance.

This is important to know: On recognition of ownership of an unauthorized construction: sample statement of claim

On the allocation of a share in a communal apartment

There is no legal definition of a communal apartment. It is believed that a communal apartment is an apartment where:

there are several families or several people who do not belong to the same family;
Each family owns its own room in the apartment.

It turns out that each family has shared property, because one family has joint property, but here the families are different.

Shared ownership and allocation of a share in an apartment are two different things. With shared ownership, the property remains common. But when a share is allocated from common property (a share is allocated), then this allocated share no longer becomes common property. This share is independent property, it is outside the common one.

The owner of a room in a communal apartment can allocate a share from it (Part 2 of Article 252 of the Civil Code of the Russian Federation). As in the case of one family, this can be done:

through an agreement with other owners on the allocation of a share in the apartment;
or through the court.

Important to know: sign up for a free consultation if you are interested in the question of how to quickly and without legal errors achieve the allocation of a share in a communal apartment.

You can allocate a share in kind to an apartment

The only exceptions are private houses. To apply to court with such a question, the plaintiff must:

Obtain a document confirming that the share can indeed be allocated. To do this, you need to attract special experts; you can find them in the same BTI.
File a claim against the remaining owners. The claim must fully describe the entire situation - what premises need to be allocated, what real estate is being divided, what shares the owners have. If compensation is required (if there is a discrepancy between the share and the premises received).
Provide the calculation in the application.

To file a claim you will need: documents of ownership of the object; documents from the BTI; expert opinion on the possibility of allocating a share; receipt of payment of the duty; additional documents, if any (calculation of compensation and others). If the court decides favorably, register everything in Rosreestr.

Allocation of a share in an apartment in kind

The first includes a purchase and sale agreement, a certificate of inheritance or other documents on the basis of which the subject received his right. The second group includes a certificate of ownership.

What is the allocation of a share in a residential building in kind and when does it happen?

As a result of the division of property, each of the owners is given a separate specific premises. In the first situation, the right of common ownership is lost only by the subject who allocated in kind the area corresponding to its part.

Important: The remaining owners still own the remaining area of the apartment as common property. If a division of property has been made, then the right of common ownership is terminated for all participants.

Compensation of cost In accordance with the provisions of the Civil Code of the Russian Federation, if it is not possible to allocate in kind a part of the living space that exactly corresponds to the citizen’s share in the common property, the latter is entitled to monetary compensation.

If the size of the allocated area, on the contrary, exceeds the ratio established by the share of the participant, then this owner, for his part, compensates the other owners for this difference.

03/16/2017 is it possible to allocate a share in kind in a privatized apartment?

Currently, in Russian law enforcement practice, a position has emerged according to which the right to demand the forced allocation of a share in an apartment in the event of insufficient funds to repay debts is granted to the creditor. The debtor's spouses and other apartment owners do not participate in this case.

Apartment section. Examples of judicial practice Courts of general jurisdiction often consider applications requesting the allocation of a share of an apartment in kind. Judicial practice on this issue is very diverse, since the outcome of each case is influenced by many factors.

Attention Example No. 1 To resolve a dispute, the court may order an examination to establish the technical feasibility of dividing the apartment, the amount of redevelopment costs and their relationship with the price of the object itself. Example No. 2 If it is impossible to allocate without damaging the entire apartment, the owner has the opportunity to receive payment of the price of the share by other participants.

Allocation of a share in an apartment in kind: judicial practice

For registration of rights, a fee is charged in the amount established by the legislation of the Russian Federation in the amount of 2000 rubles. Note All actions performed with real estate (allocation of shares, purchase, sale, exchange, etc.

) must be carried out in the interests of minor children, incapacitated citizens, people with disabilities (if any), registered and actually living in the house (apartment) with which the transaction is planned.

In order to avoid delays in the paperwork process and major troubles with the law, you need to contact the guardianship authorities in advance with a request to conduct an on-site assessment of the house. Representatives of the guardianship authorities, based on the inspection and assessment report, will make a decision, which will be handed to the applicant.

Tired of shared property? There is a way out - allocating a share

After the division of property, the property belongs to the former co-owners in the amount of their shares.

Judicial allocation of a share The court allocates a share in kind.
In the event that the allocation of a share from the common property in kind cannot be made or this will lead to disproportionate damage to the common property of citizens, then the remaining co-owners pay the owner of the share its value.

After receiving funds in the form of compensation, the owner completely loses his rights to a share in the property. Due to the monetary payment, the disproportionality of the property allocated in kind for one of the participants in the shared property belonging to the citizen of the share is eliminated.

If the co-owners do not object, then they can also receive cash payments to compensate for the allocation of the share in kind. Situations often arise when a citizen owns a small share in common property.

Allocation of a share in kind in an apartment: judicial practice

In this case, you need to perform the following algorithm of actions:

decide which part of the property will be allocated to each owner;
in the absence of a technical passport, order it from the BTI;
conclude an agreement between the owners with a notary;
register the newly formed property at the registration chamber.

A person receiving a natural part of a residential building is required to go through the registration procedure at the cadastral chamber and register his right to real estate.

The remaining owners of the house are required to write an application for amendments to the unified Rosreestr.

To do this, you must provide the following package of documents to the relevant authorities:

Certificate of ownership of the house or other documents establishing the right;
Notarized agreement of the parties.

Allocation of share in kind

Receiving compensation for the due share Compensation is due to the owner who decides to separate himself from the other owners in the case where it is not actually possible to allocate the share in kind. The amount of compensation is negotiated by all owners of the house, and an agreement is concluded.

Before drawing it up, you need to evaluate the property as a whole. If the parties fail to reach a mutually beneficial agreement, the issue is resolved in court.

The judge makes a decision on the amount of compensation, based on the actual value of the property at the time the dispute arose. According to Article 252 of the Civil Code of the Russian Federation, payment of monetary compensation to the allocated person is allowed in exchange for the allocation of a share in kind.

The allotted owner has the right to demand monetary compensation as a replacement for the allotment.

How to allocate shares in kind in a residential building

Division according to a claim by a third party A claim for the allocation of a share of an apartment in kind can be filed not only by one of the owners, but also by a person who is not related to the residential premises, but whose property interests are violated by the actions or behavior of the owner.

For example, if it is impossible to fulfill a loan agreement, the creditor may apply to the court with a demand for the allocation of a share in the apartment (or joint property, if the apartment was purchased during marriage). At the same time, he has the right to declare the following: 1.

If the allocation of a share in an apartment in kind is impossible (small area), then the court makes a demand that the debtor be obliged to sell his part of the residential premises to another shareholder at the market price. 2.

If the owners of the share refuse to purchase part of the debtor’s apartment, then it is sold at public auction.

How to calculate shares

When spouses buy an apartment, their shares are assumed to be equal (Article 39 of the RF IC). But this does not in the least prevent the spouses from drawing up an agreement on dividing the apartment into shares and registering other shares there.

Example: spouses buy an apartment for 10,000,000 rubles. The husband invests 8,000,000 of his own, the wife - 2,000,000 of hers. Obviously, the husband paid 80% of the cost of the apartment, and the wife - 20%. You can draw up an agreement that the husband owns ⅘ of the apartment, the wife - ⅕. If such an agreement is not drawn up, then the general rule will apply that the shares of the spouses are equal.

The allocation of a share is already much more complicated, because it involves “allocation of a share in kind” (this is a legal term, if anything), that is, there must be an isolated living space, for example, a room. This will not work with a one-room apartment. In general, legal disputes with housing are a confusing and complex thing, where each case is resolved in its own way.

Appraisal of an apartment for court division of property

Plaintiffs ask a lot of questions about the valuation of the apartment. Some of them need to be considered in more detail.

Is it necessary to attach an independent assessment report for the residential premises to a claim for division of an apartment?

If the parties to the proceeding agree with the price of housing indicated in the claim, then an independent assessment is not necessary.

When is the best time to conduct an assessment?

No one can force either the plaintiff or the defendant to conduct an assessment before or during the court hearing. Of course, if there is a dispute about the value of the divided apartment, the court will request an independent examination, but lawyers recommend not rushing to conduct it before the trial. There are grounds for such caution, since if the plaintiff carries out an assessment before the trial, and the defendant challenges it at the court hearing, then:

the court will order a re-examination;
no one will reimburse the costs of the initial assessment;
if a repeated examination shows that the cost at the first assessment was significantly underestimated or overestimated, then, most likely, the court will charge the costs of its conduct to the plaintiff, that is, the plaintiff will have to pay for two independent examinations.

What influences the appraisal of an apartment?

Many factors can affect the valuation of real estate:

location of the disputed residential premises;
number of storeys of the house and the material from which it is built;
technical condition of the apartment;
its area and layout.

This is important to know: Agreement on the use of residential premises: sample

Who conducts the assessment and how?

Independent assessments have the right to be carried out by relevant organizations that have a license to do so. The deadlines are set by the appraiser himself. Based on the results of its implementation, the customer receives a conclusion containing the following information:

details of the organization that conducted the examination;
information about the apartment that was assessed;
date and document number;
conclusions;
signature, seal, date of compilation and, if available, a list of attachments.

How much will you have to pay?

The cost of the assessment depends on market conditions, the object itself, the region; in Moscow or St. Petersburg this figure can be several times higher than in other regions. The approximate cost of an appraisal in a residential area of Moscow will be 5 thousand rubles.

Why do you need a lawyer when allocating a share in an apartment?

Joint property, shared property, allocation of shares, determination of shares in fractions - all this is not so simple. And when it comes to a one-room apartment, the situation becomes even more confusing, because the allocation of a share in a one-room apartment is always a big question.

When any legal action is being carried out, be it concluding an agreement on the allocation of a share in an apartment or filing a lawsuit on the same issue, it is necessary that the documents do not contain legally inaccurate language - accuracy is necessary everywhere.

Of course, you can download sample claims on the Internet, but they are specifically written to fit any situation. This means that the nuances of your case will not be taken into account. And nuances in jurisprudence are very important.

Mortgage loan after divorce if spouses are co-borrowers

By purchasing an apartment, spouses become owners of joint property. The property is disposed of by mutual consent. In the event of divorce, spouses can agree on the division of the apartment, securing ownership of a certain share.

Chelyabinsk, Pobedy Avenue, d. Russian legislation has changed from Transactions on the alienation of shares in the right of common ownership of real estate, including the alienation by all participants of shared ownership of their shares under one transaction, are subject to notarization.

A share in an apartment is not always enough for a comfortable stay. And the worst thing is when it is not possible to fully manage all the housing simply because a small part of it belongs to some distant relative or even a stranger who does not even live here. In such a situation, you can try to sue his share, but you need to be prepared for the fact that the owner will have to pay some compensation. The easiest way to solve the problem with shares in an apartment is to agree on its purchase.

Services of our lawyers

free legal advice on the allocation of a share in an apartment through an agreement or through the court;
drawing up an agreement on the allocation of shares;
preparing a claim, collecting documents that need to be filed in court;
representation in court.

Sign up for a free consultation to know exactly how to act in your situation, especially since the consultation is free and does not obligate you to anything. To register, just leave a message in the form below or call yourself. In this case, you will spend only 15 minutes of time, but you will receive legal advice that will protect you from possible mistakes that can cost months and tens of thousands of rubles.

Allocate to child

Each spouse and their children must own a certain part of the apartment. The right of children to a share in real estate is enshrined in law.

The fulfillment of legal requirements is monitored by the Guardianship and Trusteeship Authorities (TCA). The owners will have to agree on the procedure for allocating the share with this authority.

The procedure remains virtually unchanged:

Determine the terms of division of the apartment and draw up an agreement.
Collect the necessary documents.
Submit them to Rosreestr and OOiP.
Wait for the decision of Rosreestr and the guardianship authorities, and then go through state registration of the rights of each owner.

At the end they must obtain permission from the POiP. An important condition: the minor child’s share in the new premises must be no less than what he had in his previous place of residence.

All the best goes to children!

When filing a divorce and allocating shares, the one who will raise the child has the right to most of the apartment.

In a mortgaged apartment

Housing purchased with a mortgage can be divided by concluding an additional agreement with the bank. It specifies the conditions for the allocation of shares from the main agreement. As a result, the borrowers' loan debt is distributed strictly in proportion to the size of the parts of the apartment that they own.

Before making the allocation, written consent must be obtained from the bank. The main requirement is that each shareholder must confirm his financial solvency and ability to pay the loan taken out.

Accordingly, to allocate a share to a child in a mortgaged apartment ; first you will need to close the mortgage. And if the law requires the allocation of a share to a minor (if, for example, part of the mortgage is paid off with maternal capital), then a notarial obligation is made that after the closure of the mortgage, the corresponding share in the apartment will be allocated to the child.

By maternity capital

Before transferring maternity capital funds to the seller’s account, the Pension Fund will request a certified document confirming the fulfillment of obligations to the buyer. This measure guarantees that the current owner of the property will transfer the apartment to the acquirer into common ownership in the next six months. Next, the shares are allocated by general agreement by signing the appropriate agreement.

A distinctive feature is the time it takes to complete the entire procedure. The Pension Fund requests a lot of documents and takes quite a long time to approve them. It may take up to two months before the deal goes through, and you can start registering the rights with Rosreestr.