Is a privatized apartment a joint property?
At first glance, everything is quite simple, but delving into the essence of the issue, a lot of pitfalls are revealed in more detail.
Privatization occurs at the expense of accumulated family funds, which distinguishes it from a purchase that is taken into account when dividing. Privatization is a free form of realization of property rights.
What role is assigned to the distribution of shares between spouses in the division?
If during the denationalization of real estate the fact of participation of one of the family members is registered, then from a legal point of view, when the refusal is formalized, he will no longer be the owner of the property and will not be able to lay claim to it. In this case, the privatized apartment does not belong to jointly acquired property, but accordingly becomes sole property.
But even in this situation, justice can prevail if a family member files a lawsuit in order to assign the property the status of jointly acquired property. To file a claim, the plaintiff must have a number of documents proving his case (receipts for payment of utilities, receipts for payment for purchases, etc.). They will indicate that the spouse took direct part in the process of privatization of the living space or in the repair work of the property.
The privatization application already implies the size of the share of each family member. And the law reserves this right for them. Privatized living space is recognized as jointly acquired if one and the second spouse receive equal shares.
Privatization of an apartment into joint ownership - is it possible?
Article updated: July 9, 2020
Author of the article Svetlana MitrofanovaLawyer. Work experience - 14 years
Hello. When privatizing an apartment, it is impossible to register it as joint ownership . Until May 2001, this was allowed, but now a privatized apartment is registered only as shared ownership, and the shares of each privatization participant will be equal. For example, if an apartment is privatized for 3 people, then in the end everyone will own 1/3 of the apartment’s share.
Why? In Art. 2 of the Law on Privatization dated July 4, 1991 N 1541-1 states that citizens have the right to privatize municipal housing into common ownership or into the ownership of one person. Yes, common property can be shared (shares are defined) and joint (shares are not defined) - clause 2 of Art. 244 Civil Code of the Russian Federation. But paragraph 3 of the same article states that common ownership of property is shared, except in cases where the law provides for the formation of joint ownership of this property.
What if the apartment is privatized only by spouses ? And in this case only in shared ownership. I will continue my thought from the same paragraph 3 of Art. 244 of the Civil Code of the Russian Federation - common ownership of property is shared, except for cases where the LAW provides for the formation of joint ownership of this property. Spouses can register real estate as joint property only if they bought it during marriage (acquired property) - clauses 1 and 2 of Art. 34 RF IC. During privatization, the apartment is not purchased from the municipality, it is transferred to the participants free of charge - Art. 1 of the Privatization Law of July 4, 1991 N 1541-1.
If only spouses participate in privatization, they can do this: 1) First, privatize the apartment as shared ownership. 2) Then contact a notary and draw up a marriage contract with him - clause 1 of Art. 256 Civil Code of the Russian Federation, Art. 40 and 41 IC of the Russian Federation. In the marriage contract, indicate that the privatized apartment is transferred from shared ownership to joint ownership - Art. 42 IC RF.
A prenuptial agreement costs approximately 9,000 - 12,000 rubles. It must be submitted for registration to the MFC/Registration Chamber, where they will charge a state fee of 2,000 rubles - paragraphs. 22 clause 1 art. 333.33 Tax Code of the Russian Federation.
How to privatize a municipal apartment and what documents are required.
If you have questions, you can consult for free. To do this, you can use the form below, the online consultant window and telephone numbers (24 hours a day, seven days a week): 8 Moscow and region; 8 (812) 425-62-89 — St. Petersburg and region; all regions of the Russian Federation.
Laws governing privatization
The division of a privatization apartment is mentioned in the following legislative projects:
- Family Code of the Russian Federation, Article 36;
- Law of the Russian Federation No. 1541-1 “Privatization of housing stock in the Russian Federation”;
- Civil legal code of the Russian Federation.
A clear division of boundaries between the property of family members before marriage and during family life can eliminate unnecessary red tape.
Is a privatized apartment subject to division during a divorce?
It is necessary to collect evidence that the person has lost his right to live in the municipal square. We will have to collect witnesses who will confirm that the person is only registered and does not live in the apartment. Or a person leads an immoral lifestyle, and his actions threaten others and can also lead to damage to municipal property.
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Any property acquired and registered before marriage is not subject to division, as it is considered personal. Even if the second spouse registers in this residential area after marriage, he will not acquire any property rights.
What rights do spouses have to own an apartment?
When dividing property, a lot of subtleties arise that are often not immediately recognized. An apartment privatized for one of the spouses before marriage is considered personal property. Then the privatized apartment is not joint property. The apartment is indivisible; during the division it remains with the equal owner (Clause 1 of Article 36 of the RF IC).
If the privatization of real estate occurred during the period of marriage, then there are 3 options for the development of events:
1. Joint privatization
According to the information already presented: privatization implies the size of the share of each family member. During a divorce, the property is divided into equal shares or parts of each person contributed during privatization. Spouses, when dividing or selling real estate, receive funds in the amount corresponding to their share.
2. Sole ownership
When dividing property, if one spouse has the full right of sole ownership acquired during their life together, the second, in case of refusal of denationalization, may have the exclusive right to use the living space in accordance with paragraph 1 of Art. 36 IC of the Russian Federation.
3. Lack of consent of one of the family members
If privatization took place without agreement between the spouses (ignorance of one of them about privatization), then when he formalizes a refusal of denationalization, he is deprived of his rights as an owner. And if a refusal is not received, then privatization through the courts is possible; there is no other method of privatization.
Spousal share in a privatized apartment
Types of property Common joint property, which is subject to division during divorce proceedings, includes:
- income from permanent employment;
- profit from doing business;
- profit from intellectual activity;
- pension payments;
- other funds received through compensation for damage or material assistance).
Jointly acquired property can be:
- movable or immovable property;
- stock;
- securities;
- a share that the spouses acquired using joint funds, and it does not matter to whom it was registered and who contributed funds for it.
Personal property includes (Clause 1, Article 36 of the RF IC):
- Property acquired before marriage: it is inviolable.
Contents of the article In the life of every married couple, a tragic moment may come when one of the marriage partners dies. In addition to the emotional distress associated with the loss of a loved one, at this time problems often arise with the property rights of the surviving spouse in relation to joint property and the determination of the spousal share in the inheritance.
Important
What is the spousal share in marital property? People living in legally registered relationships acquire various things and objects that are considered their common property. Otherwise, it is possible if a marriage contract was concluded, which determined a different order of ownership.
How to establish whether any objects and things are the joint property of spouses is written in Art. 34 RF IC.
Subtleties of the housing issue
In the event of a divorce and subsequent division of property, neither spouse suspects that his incompetence in the privatization process may leave him without a roof over his head. For example, you should not renounce property in the hope that your share will go to your children, and the author of such a statement will be severely punished.
Also, do not lose your head when filling out a privatization application. Not parts, but shares indicated in the documentation will allow you to easily divide the property.
Characteristic features and nuances
Registration of an apartment into joint ownership is often done in a hurry. Participants in the process sometimes approach it without the necessary knowledge in this area, sometimes simply, without thinking that ignorance of the issue in the future can have dire consequences and one of the family members will lose the right to even part of the property.
For example, even for noble purposes, it is not recommended to write a refusal, with the goal of ensuring the heirs a decent future, leaving the majority of the apartment to the children. Practice shows that in most cases such actions of the author lead to a disastrous result and as a result he is simply left without a roof over his head, no matter how sad it may sound.
An important point is the division of parts of the apartment, which are mentioned in the privatization application. It is recommended to be determined in fractions. In such situations, the living space will be classified as shared ownership, and accordingly, the division of property will go smoothly and there will be no difficulties in the process.
If earlier this point was overlooked and it was not given due attention, and when completing the documentation, not parts, but parts, were included in the documentation, do not despair. The way out of this situation is to visit a notary to draw up an agreement on the division of living space. You should not give preference to methods of deception and try to persuade your spouse to refuse.
The optimal and fair solution would be a timely division of property into 2 equal parts, in which the spouses will have equal rights to own property!
Procedure for inheriting a privatized apartment after the death of a spouse
But the share is allocated only upon official marriage.
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That is, civil marriage is not considered a basis for dividing property. After the death of the spouse, the widow may receive the marital share or renounce it in writing. Depending on the situation, if the answer is positive, her right to receive a share in the real estate is taken into account.
But according to the law, there is a peculiarity here - a share in real estate is not the responsibility of a notary, but the right of the widow herself.
Division of privatized property of spouses
Spouses planning to divorce have questions about the division of privatized property. To whom, in what cases, what share is due to each spouse?
In essence, privatized housing means housing that is privately owned by a person to whom such housing is provided free of charge by the state.
According to Article 39 of the RF IC, as a general rule, all jointly acquired property is subject to division between spouses in equal shares. If a marriage contract is concluded between the spouses, then the division is carried out according to the conditions set out in the contract.
The outcome of the division of property depends on the following circumstances:
- Which spouse (one or both) was provided with a privatized apartment.
- When was privatization carried out (before or after marriage).
- Have any improvements been made to the apartment (repairs, remodeling).
- Do the spouses have minor children?
- And other circumstances.
The apartment was privatized by one of the spouses before marriage
In this case, the right of ownership of the residential premises for one of the spouses arose before marriage, therefore it cannot be classified as joint property and, accordingly, is not subject to division.
Housing that was privatized before marriage is considered the personal property of one of the spouses. Therefore, the second spouse has no rights to it.
The apartment was privatized by one of the married spouses
As a general rule, property acquired during marriage is jointly acquired and upon divorce is subject to division in equal shares. However, Article 36 of the RF IC provides for some exceptions and these exceptions apply, among other things, to privatized property.
The privatization transaction is gratuitous (free). Therefore, an apartment privatized by one of the spouses during marriage is not subject to division.
This legal provision is very justified. As mentioned above, apartments were provided as needed. In order for a citizen to receive housing, he must need it. The size of the apartment directly depended on the number of family members. Therefore, if the living area was provided without taking into account the current spouse, then there should be no grounds for dividing such property, even if the property was already registered during marriage.
Privatization of an apartment by both spouses
If the apartment was provided to both spouses under a social tenancy agreement, then after privatization all its participants have equal shares. As a rule, the shares are specified in the agreement. If the shares are not specified, then they are considered equal. Therefore, during a divorce, such real estate is subject to division. In this case, the norms of the Civil Code, not the Family Code, apply. Not only spouses, but also their children and parents have equal shares.
Division of an apartment if one of the spouses refuses privatization
The legislation provides for refusal to participate in privatization in favor of other residents. The reasons for such a refusal may vary. Subsequently, if a dispute arises between the former spouses regarding the division of real estate, such refusal may be declared invalid.
Let's give an example. The spouses were provided with an apartment under a social rental agreement. In order to retain the right to receive housing in the future, the wife refused privatization in favor of her husband. Subsequently, the marriage was dissolved, and the ex-wife “ended up on the street.”
In case of disagreements regarding the emergence of property rights for one of the spouses (the refusal to participate in privatization was obtained fraudulently or the spouse forged a signature on the application for refusal to participate in privatization, etc.), the privatization agreement may be declared invalid by the court. In this case, the norms of the Civil Code, and not the Family Code, also apply.
Features of the division of privatized housing when improving it by one of the spouses
If privatization was carried out by one of the spouses, and the other made repairs using personal funds, then the apartment is subject to division in proportion to the cost of the improvements made. Such an apartment is not considered jointly acquired property. In this case, again, the norms of the Civil Code apply.
The share of the second spouse is calculated based on the size of the investment. If after a major renovation the cost of the apartment has doubled, then it must be divided equally. When the increase in cost was not so significant, one of the spouses has the right to count on compensation equal to the amount of his repair costs.
Division of a privatized land plot
The division of privatized land plots has some peculiarities.
Firstly, land plots can be divided in kind (a plot of 12 acres can be divided into 2 independent plots)
Secondly, land privatization is not always free. The exception regarding property received free of charge that is not subject to division does not apply in this case (see Article 36 of the RF IC). Therefore, even if land was provided to one of the spouses before his marriage, but privatization took place during the marriage, such property is subject to division according to general rules in accordance with the Family Code.
Taking into account the interests of minor children
Children under 18 years of age are automatically included in the real estate privatization agreement and receive a share.
Children who do not participate in privatization do not have ownership rights to their parents’ property (clause 4 of article 60 of the RF IC). Taking into account the interests of the child can be carried out by increasing the share of the spouse with whom the child will live.
Housing provision for children is not only the responsibility of their parents, but is also controlled by government authorities, in particular guardianship authorities. Therefore, when dividing the privatized property of spouses, during its sale or alienation, the child’s rights to housing should not be violated in the first place.
