A procedure such as purchasing a share in an apartment, the risks of which are quite high, requires special caution. This is due to the fact that in the purchase and sale transaction, in addition to the seller and the buyer, other owners of shares in the purchased apartment secretly take part.

Buying a share: what’s better than an apartment?

In most cases, we purchase an apartment. But for some it is more convenient to buy a share in this very apartment. A natural question arises: why?

The main reason, of course, is the lack of money to purchase the entire apartment, but you need to live somewhere!

But already at this stage the first risk is possible. Often, the share owner invites you to draw up a share donation agreement, and you will transfer the money to him in the general manner. On the one hand, you still become the owner of the apartment, regardless of whether it was acquired under a purchase and sale agreement or as a gift. On the other hand, if you are not satisfied with this same share for some reason, and you go to court, then there will be nothing to recover from the seller - the gift agreement is gratuitous.

For example, N. acquired a share in an apartment under a gift agreement. Both parties were satisfied with the deal, shook hands and went their separate ways. Everything would have been fine if one day N.’s power had not been turned off. She went to investigate and it turned out that the former owner of the apartment had debts for electricity. With such “joys”, the amount for the share in the apartment was slightly more than the debts. But it is no longer possible to return the money - it was not transferred under the contract; here there was a personal agreement, which, as they say, “can’t be tied into the matter.”

The second risk arises when the buyer “confuses” the concepts of “share” and “room” in the apartment. A share is an intangible “item” that is only visible on the deed of title. Yes, there it can be written in numbers using the fraction -1/2,1/4, etc. But allocating a share to a separate premises is a very complicated procedure. This is due to the lack of technical capabilities: to allocate a share in kind, a separate entrance to the premises, an isolated room, etc. is required.

In addition, problems also arise when determining the value of a share. Due to the current situation in the real estate market, a share is not in great demand, and therefore is not as expensive as, for example, an isolated room. But how to determine the value of a share?

Logic for calculating the cost of 1 sq.m. by region, multiplied by the total number of square meters, is not applicable here, since in this case the price for a share in the apartment will be too high.

Therefore, in this case, one should proceed from the area in which the apartment is located, whether it is renovated, the number of shares (neighbors), etc.

It is worth noting a somewhat negative aspect of buying a share in an apartment. You will not live alone in this living space; therefore, conflicts with neighbors may arise, which subsequently result in scandals and even going to court.

Therefore, you should be able to sell your share. But if the apartment is located in a disadvantaged area, for example, then this will be difficult to do.

Co-owners: who are they and what to do with them?

Buying just a share in an apartment means that this apartment must have at least one co-owner, or even more. Accordingly, the procedure for using all residential premises belonging to you must be determined by a joint agreement. If it is not there, then everyone uses the property on an equal basis.

But it’s not for nothing that we started talking about “neighbors.” If you suddenly decide to sell a share in an apartment, then the right of priority to acquire this share belongs to your co-owners. This is done as follows.

Once you decide to sell your share, you must notify the other owners in writing. Moreover, the notification must specify the conditions for the sale of the share, including the price.

Such a proposal is sent by hand against signature or sent by registered mail. The co-owners have a month to make a decision: they either agree to purchase a share or refuse.

If after a month no response has been received, then the owner can sell his share to third parties on the terms on which it was offered to the “neighbors” (except for cases of increase in price for third parties).

The consequences for failure to comply with legal requirements are as follows. Co-owners can file an application with the court within 3 months from the date of sale of the share in the apartment to transfer the rights and obligations of the buyer to them. And the court will rule in their favor.

Don't know your rights?

But if the owner sells the share to one of the other owners, then notification of the remaining “neighbors” will not be required.

In addition to the “warning”, other problems are possible with the owners of other shares in the apartment. In practice, there are cases when owners do not approve of the sale of a share to third parties, but they themselves do not want to buy it.

Simply put, they put a spoke in the wheels of both the seller and the buyer of the share. This can happen in the following way: one of the owners or all of them agree to buy out the share, but are simply stalling for time, without intending to draw up a purchase and sale agreement.

Share: what is the benefit and how to use it?

Recently, transactions with the purchase of shares have become increasingly popular in the real estate market.

This circumstance is attributed to the fact that, firstly, buying a share is an investment. For example, you haven’t saved up for an apartment yet, but you can easily save up for a share. Secondly, through the purchase of shares, you can buy the entire apartment, and it will cost much less, since there is no mechanism for determining the price for a share; accordingly, the seller can indicate a “reduced” price.

Buying shares is not the same as buying a room, for example, in a communal apartment. Very often the share cannot be expressed even in square footage, since the owner has the right not only to the room in which he lives, but also to part of the bathroom, kitchen, etc.

Of course, the share can be allocated through the court. At the court hearing, the judge takes into account the factors of the financial situation of the person filing the claim, whether he has other living space to live in, whether he is in a marital relationship, whether he has children, etc.

To avoid additional problems, when completing a share purchase and sale transaction, carefully check the identity of the seller.

The thing is that in practice the following types of fraudulent schemes are used: the seller signs a purchase and sale agreement, takes the money; the buyer receives his share in the apartment, and everyone is happy. Only after some time the seller “remembers” that he is an incompetent citizen, and at the time of the transaction was not aware of his actions. Accordingly, he submits an application to the court and attaches all the necessary documents.

Since he has nowhere else to live, the judge recognizes the purchase and sale transaction as invalid and cancels it. The former owner moves into his part of the apartment, and the bona fide purchaser has no choice but to go to court to recover the money he paid. The court makes a decision to return the money... and the seller is not against returning it. There’s just nothing left to return!
Registration in an apartment where the owner’s share has been acquired is carried out in accordance with the general procedure without the consent of the co-owners; registration of other family members of the owner - only with the consent of the “neighbors”.

Should I buy a share in an apartment or not? What are we risking?

Buying a share in an apartment is an absolutely legal transaction only if it is formalized through a purchase and sale agreement. Options when the transfer of a share occurs at the request of the seller through a gift or barter carry the risk of losing money if it is declared invalid, since the gift agreement is a gratuitous transaction, and it turns out that you did not pay any money.

In general, a gift agreement in this context is usually used for two purposes: not to pay extra taxes; transfer of ownership of a share if the remaining owners are against or have expressed their consent to buy this share.

Find out the reason for selling the share. If this is a conflict between neighbors, then there is no guarantee that this conflict will not “spill over” to you. It is better to discuss all “burning” issues before completing registration documents. You may need to sit down with the other owners to sort out any misunderstandings that may arise. Don’t waste your time on this, as it will greatly simplify your life together later on.

As a rule, owners agree in advance on the rules of “shared dormitory”. This may be agreed upon orally or confirmed by an agreement that can be notarized.

If you buy a share in an apartment and plan that several more people besides you will live in it, then, if possible, it is better to divide this share among everyone, so as not to constantly ask the consent of other owners to perform certain actions.

If you decide to buy a share, do not be afraid of negative consequences. Pay attention to the “basic” things and carefully check the signed documents.

Our fellow citizens often hear terms such as “shared ownership of an apartment” and “share in the ownership of an apartment.” Let's figure out what these terms are, what they are associated with, and how does common shared ownership of an apartment differ from private or common joint ownership of an apartment, as well as from ownership of a room in an apartment?

I. Common shared ownership of the apartment.

According to Article 244 of the Civil Code of the Russian Federation, property owned by two or more persons belongs to them by right of common ownership. Property may 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).
Thus, common shared ownership is the ownership of two or more persons in one property, divided between them into certain parts (shares). However, this property, even divided into shares, belongs to all its owners. That is, each of the owners of such property can own and use it with the same rights as its other owners.
According to Article 288 of the Civil Code of the Russian Federation, the owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose. Residential premises are intended for the residence of citizens. A citizen who owns a residential premises can use it for personal residence and for the residence of his family members.
Article 30 of the Housing Code of the Russian Federation on the rights of the owner of residential premises says, in particular, the following:
“1. The owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose and the limits of its use, which are established by this Code.
2. The owner of residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, an agreement for gratuitous use or on other legal grounds, as well as to a legal entity on the basis of a lease agreement or on other legal grounds taking into account the requirements established by civil legislation and this Code.”
In relation to the right of common shared ownership of an apartment, all owners of an apartment in shared ownership shall equally own all the rights provided for in Articles 288 of the Civil Code of the Russian Federation and 30 of the Housing Code of the Russian Federation, including the right to reside in the apartment and the right to move their members into it families
However, disposal of an apartment (renting out an apartment, selling a share, moving other people into the apartment) is possible with shared ownership with a number of restrictions.
Such restrictions are provided for in Article 246 of the Civil Code of the Russian Federation, according to which the disposal of property in shared ownership is carried out by agreement of all its participants. A participant in shared ownership has the right, at his own discretion, to sell, donate, bequeath, pledge his share or dispose of it in any other way, subject to the rules provided for in Article 250 of this Code during its alienation for compensation.
In other words, the disposal of shares in the right of common shared ownership of an apartment is quite permissible by law, but requires the prior approval of all owners of the apartment (owners of other shares in this apartment). In particular, the sale of a share in the ownership of an apartment is possible subject to a number of requirements expressly provided for in Article 250 of the Civil Code of the Russian Federation, which will be discussed below.

II. Objects and grounds for the emergence of common shared ownership of residential premises.

According to Part 4 of Article 244 of the Civil Code of the Russian Federation, common property arises when two or more persons acquire property that cannot be divided without changing its purpose (indivisible things) or is not subject to division by force of law. In relation to residential premises, the law does not prohibit or restrict the right of common shared ownership. Thus, the right of common shared ownership is possible for any residential premises in the Russian Federation, to which Article 16 of the Housing Code of the Russian Federation includes:

1) residential building, part of a residential building;
2) apartment, part of an apartment;
3) room.

The grounds for the emergence of the right of common shared ownership can be very different, among which the following grounds should be particularly highlighted:
1. Transactions with residential premises with the participation of both citizens and organizations (donation, exchange, purchase and sale, rent);
2. Transfer of ownership of a share in the ownership of residential premises by inheritance (inheritance by law or by will);
3. Privatization of housing, i.e. gratuitous transfer to a citizen of residential premises owned by the state;
4. Recognition of ownership of residential premises (share in the right to residential premises) by court decision.
In all of the above cases, ownership can be transferred both to the entire residential premises and to a separate share in the ownership of the residential premises.

III. The difference between shared ownership of an apartment and common joint ownership of an apartment.

Ownership of residential premises (in particular, an apartment) can be not only common shared, but also common joint.
As already stated above, property can be in common ownership with the determination of the share of each owner in the right of ownership (shared ownership) or without the determination of such shares (joint ownership), which is enshrined in Part 2 of Article 244 of the Civil Code of the Russian Federation.
According to Article 253 of the Civil Code of the Russian Federation, participants in joint ownership, unless otherwise provided by an agreement between them, just like participants in common shared ownership, jointly own and use common property.
However, the disposal of common joint property has its own characteristics, which are also provided for in Article 253 of the Civil Code of the Russian Federation. In particular, the disposal of common property can only be carried out jointly by all participants in the common joint property. In other words, if a participant in common shared ownership of an apartment can, for example, sell his share in the apartment, having previously notified the owners of other shares in this apartment of his intention, then participants in common joint ownership of an apartment can dispose of the apartment belonging to them by right of ownership only jointly, that is, they can sell not a share in the ownership of an apartment, but the entire apartment as a whole.
In order to avoid such a restriction, which makes it very difficult to dispose of the common ownership of an apartment (after all, its sale or other alienation is possible only in its entirety and not in parts), participants in the common joint ownership of an apartment can determine their shares in ownership by concluding an appropriate agreement on determining shares However, even when determining shares in the right of common ownership of an apartment, participants in common joint ownership are not free in their choice. Since a real estate transaction, in accordance with the requirements of Article 164 of the Civil Code of the Russian Federation, is subject to mandatory state registration with the Federal Registration Service, the text of the agreement on determining shares in the right of common joint ownership of an apartment must comply with the requirements for such agreements by officials of this institution. The requirements of the Federal Registration Service for the agreement on determining shares in the right of common joint ownership directly follow from the content of Part 2 of Article 254 of the Civil Code of the Russian Federation, which contains a requirement for the equality of shares of all participants in common joint ownership of property.
In other words, if the apartment was registered as the property of, for example, three citizens, then the Federal Registration Service will register an agreement on determining shares in such an apartment only on the condition that each of the participants in the common ownership of the apartment will be assigned ownership of 1/3 of the share of this apartments.
After registration of the right of common shared ownership of the apartment, the participants in such ownership will acquire all the rights to this residential premises, which were set out in Chapter I of this article.

IV. The difference between shared ownership of an apartment and private ownership of an apartment or room.

It is necessary to distinguish the right of ownership of a share in an apartment from the right of private ownership of an apartment or a separate room in this apartment.
Owners of apartments in an apartment building and shares in the ownership of apartments in an apartment building have one common right - the right of ownership to a share in the common property in an apartment building.
According to Article 36 of the Housing Code of the Russian Federation, the owners of premises in an apartment building own, by right of common shared ownership, premises in this building that are not parts of apartments and are intended to serve more than one premises in this building, including inter-apartment landings, stairs, elevators, elevators and other shafts, corridors, technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in a given house (technical basements), as well as roofs enclosing load-bearing and non-load-bearing structures of a given house, mechanical, electrical, sanitary technical and other equipment located in this house outside or inside the premises and serving more than one room, the land plot on which this house is located, with elements of landscaping and landscaping, and other objects intended for the maintenance, operation and improvement of this house, located on the specified land plot (hereinafter referred to as common property in an apartment building).
Thus, the owners of apartments, who own them both on the right of common joint property and on the right of common shared or private ownership, also own the right of shared ownership of common areas and all utilities in an apartment building.
However, the owner of a share in the ownership of an apartment has slightly less rights than the owner of the entire apartment, to whom the apartment belongs as private property, and the owner of a room in a communal apartment.
Owners who own an apartment individually can dispose of their apartment (sell, exchange, donate, etc.) without obtaining anyone’s consent, and without first notifying anyone of their intention.
Owners of rooms in communal apartments should be distinguished from apartment owners who own apartments as private property. In this case, a citizen may own a separate isolated residential premises (room), which is part of another residential premises (apartment) on the basis of both shared and private ownership. However, the owners of rooms in communal apartments, according to Articles 41-42 of the Housing Code of the Russian Federation, also have the right of common shared ownership of common areas in communal apartments (corridor, kitchen, bathroom, etc.).
As already stated above, according to Article 246 of the Civil Code of the Russian Federation, owners of shares in the right of common shared ownership of property dispose of it by common consent. Since the owners of rooms in a communal apartment also have a share in the ownership of common areas in this communal apartment, the disposal of the room (sale, exchange, rental, etc.) is possible only with the knowledge and (when renting) written consent of the owners of other rooms in this communal apartment.
Owners of shares in a separate apartment have the right to dispose (the right to enter into transactions for the alienation of property) of shares of the entire apartment, while owners of rooms in a communal apartment have the right to dispose of specific rooms. Accordingly, when making any transactions with housing, the owners of shares in a separate apartment can sell only their so-called “ideal” share in the ownership of the entire apartment (for example, 1/2 share), while the owners of rooms can sell for much more higher price for a separate room in a communal apartment.

V. Transactions with a share in the ownership of an apartment.

Owners of shares in the ownership of an apartment can make any transaction with their share that is not prohibited by current legislation - sell, donate, transfer under a rent agreement, bequeath, lease, etc.
However, for two transactions, the owner of the share will be required to perform a number of actions so that these transactions, in the future, will not be challenged in court by the owners of other shares in this apartment.
If the owner of the share plans to rent out the apartment, then written consent will need to be obtained from the owners of other shares in this apartment, either in the form of a separate document (content: the owner Ivanov does not object to renting out the apartment to citizen Petrov on such and such conditions), or in in the form of a mark on the approval of the lease agreement with other apartment owners on the text of the agreement itself with their signatures and transcripts of the signatures.
If we are talking about the sale of a share in the ownership of an apartment to some outsider, then the seller of the share is obliged to exercise the pre-emptive right to purchase his share by other owners of this apartment, in full compliance with the requirements of Article 250 of the Civil Code of the Russian Federation.
The seller of the share will be required to notify the other owners of the apartment in writing one month before the sale of his share, indicating in the written notice the exact price at which he plans to sell his share to anyone interested. Other apartment owners will have to respond to the seller within a month with either written consent to purchase his share at the proposed price, or a written refusal to complete such a transaction. In the event that the owners of other shares of the apartment respond with a written refusal to purchase the share at the proposed price, or within one month from the date of sending the notice to them do not answer anything to the seller (which will be considered an actual refusal to complete the transaction), the owner of the alienated share will have the right to sell it to anyone who wants it. However, the price of the purchase and sale agreement will have to correspond exactly to the price indicated in the notice addressed to the other owners of the apartment. If the price in the share purchase and sale agreement is at least one kopeck higher or lower than the price indicated in the notice, or if the seller of the share does not notify any of the apartment owners about his intention to sell his share, the other apartment owners have the right will file a claim in court to transfer the buyer's rights to them.

VI. Allocating a share in kind and determining the procedure for using the apartment.

Sometimes there are situations when conflicts arise among the owners of shares in a residential premises, making it difficult to live together in this residential premises (relatives are not allowed into the apartment, they are not allowed to use a separate room, they interfere with the move-in of family members of one of the owners registered in the apartment at the place of residence this apartment, etc.).

There can only be three ways out of this situation:

1) Sale of a share to anyone;
2) Determining the procedure for using residential premises;
3) Allocation of shares in kind.

Selling a share in the ownership of residential premises is a very dubious step in commercial terms. The new owner of the share risks facing the same problems that the seller of this share had. Accordingly, the buyer of the share is aware of the upcoming “battles” for the right to move into the apartment and use at least some premises in such a problem apartment. All this leads to the fact that the share is sold at a clearly reduced price, sometimes three to four times less than it would cost if the procedure for using the apartment had been determined or the share had been allocated in kind.
According to Part 2 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.
The allocation of a share in kind represents recognition of the right of private ownership of a separate isolated premises. For example, a citizen was the owner of a share in a three-room apartment, and after allocating the share in kind, he can become the owner of a separate isolated room in this apartment.
However, not in all residential premises it is possible to compulsorily allocate a share in kind.
According to paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 No. 8 “On some issues of application by courts of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation” (as amended on December 21, 1993), the allocation to a participant of common property on a privatized residential premises, which is a separate apartment, a share belonging to it is permissible if it is technically possible to transfer to the plaintiff an isolated part of not only residential premises, but also utility rooms (kitchen, corridor, bathroom, etc.), and equipment for a separate entrance. In the absence of such a possibility, the court. has the right, at the request of the plaintiff, to determine the procedure for using the apartment.
Thus, forced (through the court) allocation of a share in kind is possible only in detached residential buildings (for example, a rural house or cottage), in which it is possible to equip a separate entrance and make a partition that allows you to turn this residential building, in fact, into a two- or multi-apartment residential building with separate, isolated apartments.
Residents of city apartments have the following choice: either to allocate a share in kind (to secure ownership of individual isolated rooms), by voluntarily concluding an Agreement on the real allocation of a share with the other owners of the apartment, or to determine in court the procedure for using this apartment.
According to Article 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court.
Determining the procedure for using a city apartment is quite possible in court. The main condition is that the rooms in the apartment be isolated (not adjacent). In this case, the court determines which of the apartment owners has the right to use which specific isolated room. For example, the court may recognize the right to use room No. 1 for the plaintiff Ivanov (according to the floor rent of the apartment from the BTI), and for the defendants Petrov and Sidorov - the right to use rooms No. 2 and No. 3.
In the case of the allocation of a share in kind in a separate house, Ivanov receives room No. 1 as private property, and in the case of determining the procedure for use in a city apartment, he is recognized with the right to use (right of residence) room No. 1.
In the first case, Ivanov can sell his home at the market price of a separate residential premises (separate room). In the second case, sell the share in the ownership of the apartment, but with the right to use a separate room secured in a court decision.
These are the common features and differences of common shared, common joint and private ownership of residential premises in the Russian Federation.

Concept common property arises when one object is owned by several persons (both individuals and legal entities).

Reasons for occurrence and types

This type of property arises due to various reasons: official registration of marriage; where several people live; creating a farm where there are several owners, etc. - in other words, when two or more people take possession of property that cannot be divided into several parts either by force of law or without changing its purpose.

Two types of common property rights can be distinguished, which differ in the essence of ownership and are regulated by different rules:

• shared ownership– a type of property that is characterized by the allocation of a certain share in the ownership of property, both movable and immovable;
• joint ownership– when the shares of property ownership are not determined in advance.

Share in the ownership of an apartment - what is it?

When an apartment becomes the property of several persons and the shares of ownership are agreed upon in advance, we are talking about shared ownership of the apartment. In such a situation, housing can only be disposed of with the consent of all owners, regardless of the size of the share.

It should be understood that if all the owners live on the territory of the apartment, then it is not possible to actually divide the area in accordance with the shares of each according to the documents. In this case, the co-owners try to come to an agreement and divide the living space, taking into account the life circumstances and needs of each. If this issue cannot be resolved peacefully, the owners go to court, where the procedure for using the living space will be determined. If it is necessary to change the order due to any new circumstances (for example, the birth of a child), the court may revise the decision that was made earlier.

Regulatory acts that regulate issues of shared ownership of an apartment

In order to determine the procedure for use and how co-owners can dispose of their shares, one should refer to the Civil Code of the Russian Federation (Part One) dated November 30, 1994 N-51 Federal Law. Chapter 16 is entirely devoted to the regulation of common property rights.

If we are specifically interested in the right of shared ownership in an apartment, we should pay attention to the following articles:

• Art. 245. The article states that if shares in common property are not determined in advance, then the shares will be considered equal. Also, when investing in improving the condition of the property, the size of the share can increase in proportion to the investment.
• Art. 246. Shared property can be disposed of only with the consent of the co-owners, while any of the owners has the right, etc. your share.
• Art. 247. Shareholders have the right to use the property by agreement of all co-shareholders. Each owner has the right to receive his share for use; if in fact this is not possible, he has the right to count on compensation.
• Art. 248. Everything that the owners can receive as a result of the exploitation of shared property (income, fruits, etc.) is divided between the owners according to their shares, unless there are other agreements.
• Art. 249. Expenses for the maintenance of common shared property - all this is also divided between the co-owners in accordance with the size of the shares.
• Art. 250. This article describes the right of co-owners to preference in purchasing a share in common shared ownership, provided that the sale is not through a public auction.
• Art. 251. Upon sale, the share passes into ownership from the date of conclusion of the agreement, unless other conditions are specified in the agreement.
• Art. 252. The division of property can take place by agreement of all co-shareholders. Any of the co-owners has the right to allocate his share either by agreement of all owners or by court decision. If the allocation or division of property is not possible or is prohibited by law, then the shareholder has the right to compensation, after receiving which he is deprived of his property rights.
• Art. 255. The creditor has the right to apply to the court, if one of the owners in common property cannot pay off the debt with the property that he has, to collect the debtor’s share, while the share can be sold both to the remaining property owners and at public auction, and The proceeds from the process will be used to pay off debts.

Recently, changes have affected only the 1st paragraph of Article 250 of the Civil Code of the Russian Federation (the changes entered into force on March 1, 2015), which talks about the pre-emptive right to purchase shares in common property by co-owners. Points have been added in which this advantage is abolished when selling property with, or more precisely, a share.

Main problems: how to divide, sell or rent out a share in an apartment

So, the problems faced by people who own shared property can be divided into several types: I want to have my own room, I want to sell or rent out my share. Let's look at everything in order.

I want to have my own room

If you not only own a share in the apartment, but you also have to live in it with other shareholders, the question arises: how to divide the area so that everyone has their own corner. This issue is regulated by law and is described in Art. 245 of the Civil Code of the Russian Federation - on the procedure for using residential premises. The first option for determining order is peaceful, because it is better to come to an amicable agreement with your neighbors and decide who will live and where.

Healthy! Even if you have agreed on everything with other residents, it is best to formalize the procedure for use with a notary, so that later you do not have to prove who said what.

Another option, when it is not possible to resolve the residence issue peacefully, is to go to court. The court will take into account all the circumstances and divide the rooms between the owners, as it considers it correct, not always taking into account the size of the owners’ shares. If one owner has a family and the second is single, then the first owner will get a larger room.

Do I want to sell my share?

When cohabitation does not suit one or more property owners, and they would like to receive their share in monetary terms, the question arises of selling a share in a common apartment. In such a situation, there are several possible solutions:

1. If only one of the owners declares the sale of a share, then the remaining residents have an advantage over others who wish to purchase, and in this case it is necessary to obtain their consent. This right is regulated by Article 250 of the Civil Code of the Russian Federation.
2. If several co-owners would like to sell the entire property, but one, who has a small share that cannot be realistically allocated, does not agree, then you can go to court (based on paragraph 4 of Article 252 of the Civil Code of the Russian Federation), where permission to sell the apartment without consent will be obtained. protester,” with the condition of paying him compensation in the amount of his share of the total cost of the apartment.
3. If all co-owners are ready to leave, then they can simply sell the apartment and each receive their share.

It is important to know that the sale of a share in an apartment is much lower than the cost of the same share if the apartment is sold as a whole. The price difference can reach 15-25%.

How to submit your part?

Everything is very simple here - renting out or registering someone on your part of the living space is possible only with the consent of all owners; this issue is regulated on the basis of Article 246 of the Civil Code of the Russian Federation. If there is a need to register a minor child, then this can be done without the permission of other owners, since children are registered at the place of registration of one of the parents (Article 70 of the Housing Code of the Russian Federation, norms of the Family Code)

Right of common joint property of spouses

In order for the right of joint ownership to arise between a man and a woman, a marriage must be officially registered. Property acquired during marriage becomes the joint property of the spouses, where each has an equal share. A different procedure can be established provided that a marriage contract has been signed, in which, with the consent of the husband and wife, ownership rights regarding the property of each of them are designated. Issues arising during the use and disposal of joint property are regulated by Article 256 of the Civil Code of the Russian Federation and Articles 33-39 of the RF IC.

The right of joint use includes property that was acquired by spouses during marriage, but it is important to know that this right does not apply to:

• acquired before marriage;
• resulting from ;
• personal belongings.

All this is the separate property of the spouses.

For information: the individual property of one of the spouses can be recognized as joint property, provided that there were investments in it during the marriage, which greatly increased the value of the property (repairs, reconstruction).

Although when making transactions with joint property, written or notarized permission of both spouses is not required (based on the fact that both spouses agree to the transaction and nothing else has been proven), but spouses without a notary can dispose of real estate or objects that require registration and/or notarization certified consent of the other spouse cannot according to Art. 35 IC RF.

The division of property can be carried out both during the marriage and upon its dissolution. This process is regulated by Articles 38 and 39 of the RF IC. In the best case, the division occurs peacefully, when the owners agree on who will get what. If you cannot reach an agreement on your own, the only way out is to go to court. The court will establish the division of property in equal shares, so that both spouses receive equal shares of the property in value. In the event that the shares are not equal, the spouse with the smaller share is awarded monetary or other compensation.

A very important point is not only the acquisition of property during the marriage, but also with what funds it was acquired, because this can greatly influence the court's decision on division.

Example No. 1

The wife sued her husband for the division of an apartment that was acquired during the marriage.

The court found that this apartment was purchased with funds resulting from the sale of the husband's premarital property, which are not common property. In view of this fact, the court decided that the apartment was not subject to division, because is not joint property.

Example No. 2

The wife applied to the judicial authorities for the division of property, including an apartment, after the divorce.

The court stated that this apartment was not purchased by the spouses using common funds, but was given to the husband as a military serviceman; accordingly, this property is not common and joint property and is not subject to division.

How is the division of real estate in shared ownership carried out?

The video shows the order, procedure and features of the division of property that belongs to more than one owner.

Photo from pokeroff.ru

It happens that the owners of one apartment turn out to be strangers to each other.- a small part of the premises can pass to a stranger as a gift or by will. Usually the owner of a smaller part of the apartment is not against selling it, especially if he does not live in it - but at an inflated price. Is there a chance to oblige the intractable co-owner to sell his share at market value? This possibility exists, and the Supreme Court once again reminded us of it. The Supreme Court explained under what conditions the owner of the majority of the residential premises can forcibly buy out their insignificant share in the apartment from other owners.

The apartment was divided in court

If owners need to divide shares in an apartment, they have two ways: negotiate and enter into an agreement on the division of common property, or go to court to divide the property. Both possibilities are provided for in Art. 252 Civil Code. Sometimes it is impossible to allocate a share for one reason or another - for example, when it is too small. Then the owner has the right to receive monetary compensation from other property owners - of course, if he agrees to this. However, situations are also possible when the owner may be forced to take money, although he would prefer to retain part of the living space.

This usually happens when gift agreements are drawn up or real estate is transferred to several heirs - and on the one hand, the owners of the shares are persons who are related or family relationships and jointly use this property, and on the other hand, someone who has a small share in the common property and does not actually use the property, explains Oksana Stupina, lawyer. A similar situation arose in the case of the Kryuchkov spouses*, which reached the Supreme Court.

Ivan and Varvara Kryuchkov* and their minor daughter lived in a three-ruble apartment with an area of ​​66.4 square meters. m. Once the apartment was privatized equally between Ivan Kryuchkov and his mother, but later the mother decided to sell her share. As a result, the family, together with another relative (the owner of a 1/12 share), was left with only half of the apartment - in fact, they occupied two isolated rooms. The other half of the apartment belonged to Vladimir Zakharchenko, who bought half of the housing, as well as Inna Novichenkova* and Olga Zakharchenko*, to whom the man transferred a third of his share through a gift agreement.

Immediately after half of the apartment ended up in the hands of strangers, the Kryuchkovs wanted to take over the entire living space for themselves. The new owners themselves proposed this option, but the parties did not agree on the price. Since it was not possible to agree on how to use the apartment, the family decided to proceed through the courts. In the lawsuit sent to, they asked to recognize Novichenkova and Zakharchenko’s shares in the apartment as insignificant (each of them owned 1/6 of the apartment), to terminate their ownership rights, to pay them the market value of the shares, and also to recognize the plaintiffs’ minor daughter’s right of ownership to those belonging to the defendants shares.

The applicants were rejected at first instance. On appeal, (case No. 33-14211/2016), on the contrary, they decided that the demands were well founded and granted the claim. They came to the conclusion that the share of each of the defendants is insignificant; it is not possible to provide them with isolated living quarters that would be proportionate to their share. The parties failed to agree on the right to use the apartment. At the same time, the defendants, unlike the plaintiffs, are not registered in it, they live in another place, and they have another living space in their property. This is enough to satisfy the Kryuchkovs’ demands, the appeal concluded. The defendants tried to challenge the decision of the Moscow City Court in the Supreme Court.

When can the owner be forced to sell his share?

The defendants insisted: they needed the apartment, and the value of the share presented by the appraiser was underestimated. True, for some reason they did not ask for an examination and made no attempt to prove that the cost should be different.

The panel for civil disputes, chaired by a judge, supported the appeal (case No. 5-КГ17-51). In the ruling, the court recalled paragraph 4 of Art. 252 of the Civil Code: it explains when the owner of a small share can be forced to sell it at market value, even if he does not agree to such a scenario. For this, in addition to the insignificance of the share, and what is “insignificance”, according to Alexandra Latyev, partner, no one defined it, it’s just that “everyone understands that 1/3 is a significant share, and 1/100 is an insignificant share,” two more conditions must be simultaneously met. Firstly, there must be no possibility of real allotment of shares. And secondly, the owner should not be interested in using the common property.

Whether the owner needs a share or not will have to be decided on a case-by-case basis, the board noted. It is necessary to pay attention to the age of the person in question, his state of health, profession, the presence of children and other circumstances, the Supreme Court referred to paragraph 36 of the Plenum of the Supreme Court and the Supreme Arbitration Court of July 1, 1996 No. 8 “On some issues related using part one of the Civil Code of the Russian Federation."

How to confirm the lack of interest in the use of housing from the “extra” owner?

1) Provide data on whether this person has other real estate (this can be confirmed by an extract from the Unified State Register of Real Estate), indicate that he never used (did not reside) the disputed property.

2) Interested owners can submit documents confirming that they bear all costs of maintaining the disputed property.

3) The court can also evaluate the relationship of the parties (the presence of kinship and family ties) in order to assess the prospects and possibility of joint use of common property.

4) The possibility of allocating a share in kind is assessed based on the total area of ​​the disputed object, the number of premises (or rooms) and the possibility of allocating an isolated room, the design features of the object that determine the possibility of its redevelopment. Therefore, the claim of interested co-owners can be satisfied only if the share of the “extra” owner is so small that it cannot be allocated to a separate premises, or the design of the premises itself does not allow the allocation of the share so that the owner can fully exercise his right of ownership.

If the court comes to the conclusion that all conditions are met and the parties cannot agree on the procedure for using the common property, then the claim filed on the basis of paragraph. 2 clause 4 art. 252 of the Civil Code of the Russian Federation will be satisfied.

Oksana Stupina, lawyer at Khrenov and Partners

Having studied the circumstances of the dispute, the Supreme Court upheld the decision of the Moscow City Court without change.

Considering that in total the “insignificant share” of the two co-owners is 1/3 of the apartment or a little more than 22 square meters. meters in a Moscow apartment, the conclusions of the courts, at first glance, may be shocking, notes Elena Poleonova, partner of the legal bureau. Not everything is clear in the case, she believes: the courts came to the conclusion that the claim was justified, having assessed the circumstances of the dispute: the fact that it is impossible to provide isolated premises in the apartment to all participants in shared ownership (the apartment consists of three living rooms, and there are 7 co-owners), that the defendants not relatives, do not actually live in the living space, etc. “But it is not clear to me why two more owners, who respectively own shares in the amount of 1/6 and 1/12, were not involved in the case - after all, the decision on the dispute affects their rights as well,” she notes. The fact that the plaintiffs took a very active position, while the defendants, on the contrary, did not even support the argument about revising the market value of the share with evidence, also played a role in the case.

Almost any participant in shared ownership may become a defendant in such a dispute. “In my opinion, controversial issues regarding the use of an apartment that is in shared ownership are best resolved pre-trial. This requires the active participation of all owners interested in resolving the situation. A court decision always determines the winning and losing side, and a legal dispute always costs time, money and nerves,” says Elena Poleonova.

“If your dispute has already reached the court, then you need to approach the defense of your position with all responsibility.
To do this, you need to obtain and promptly provide the court with evidence confirming your arguments and refuting your opponent’s arguments, declare the appointment of examinations, call and interrogate witnesses, and demand evidence (if the law does not give you the right to obtain it yourself).
All this must be done when considering the case in the first instance. To be successful, a litigant must be active and defend himself competently."

Elena Poleonova, partner of the law bureau "Olevinsky, Buyukyan and Partners"

*The names and surnames of the participants in the process have been changed by the editors

In terms of their technical characteristics, an individual house and an apartment differ significantly. However, the rules of law governing the procedure for determining and subsequent allocation of shares are the same for both a house and an apartment.

However, with an apartment it is much more difficult to carry out all the manipulations to determine shares, since it cannot be reconstructed, its area cannot be increased, and the arrangement of rooms cannot be changed. However, an apartment in a metropolis will cost much more than a house in the village, and therefore residents will have to determine their shares one way or another, even if it is technically almost impossible to do this.

Therefore, the issues of determining shares involve many years of disputes, conflicts, and litigation. At the same time, a lot can depend on a competently presented position in court. It is even more important to temporarily forget mutual grievances and hatred and try to come to an agreement so that the determination of shares is as convenient as possible for all parties.

This is where the importance of legal assistance, which our employees will be happy to provide, manifests itself. Their tact, knowledge and experience help residents resolve even the most complex issues. And if an agreement cannot be reached, then our lawyers find compelling arguments to protect the interests of their client.

How can we help?

Let us note that in order to determine shares or determine the procedure for using residential premises, residents will have to go to court, even if they were able to agree among themselves, since only the court can determine shares. Therefore, residents are faced with a number of problems that are much easier and cheaper to entrust to professionals who will resolve such disputes quite quickly. This is better than reading a lot of regulations, being nervous and going to the courts like work for several months, or even years. That’s why our specialists offer the following services:

• providing legal advice, the task of which is to understand the essence of the problem and orient the client to the requirements of regulations;
• providing assistance in choosing a further option (the final decision still remains with the client - our specialists do not impose it, but only pay attention to the advantages and disadvantages of each option);
• assistance in determining the required list of documents and collecting missing ones;
• assistance in negotiations with neighbors, since it is wiser to find a compromise and have a ready-made solution to the issue that suits everyone;
• assistance in preparing a statement of claim, collecting evidence, searching for witnesses;
• representing the client’s interests in court, in which our specialists will make every effort to achieve the most favorable resolution of the issue in favor of the client;
• assistance in reaching a settlement agreement, which is again better than an inconvenient court decision and subsequent troubles with neighbors;
• defending the client’s interests in higher courts, during examinations and other events;
• monitoring the execution of a court decision;
• provision of other legal assistance that may be necessary only in a certain situation.

And in order for our client to better understand the situation with determining shares, overview information on this issue will be very useful to him.

How are shares in an apartment determined?

Determining shares in an apartment may be required for a number of reasons when several owners appear for one apartment. This situation occurs after:

• divorce and division of an apartment between spouses;
• inheritance of an apartment by several heirs;
• joint privatization and for other rarer reasons.

In theory and on paper, such a complex issue is solved outrageously simply. According to the law, if there are two owners, then each of them has the right to half the apartment. If there are three owners, then each has the right to count on a third, and so on. Legally, the issue is also resolved simply. The apartment remains a single piece of real estate and as such is not divided. In the register of real estate, the apartment will be registered as a whole object, indicating the number of owners and the size of their shares.

Each of the owners is given a certificate indicating that the owner owns a share in the apartment, which is half (a third, a quarter) of its area. This is where the theoretical division of property ends, and the shares are determined on paper.

Everything, of course, would be fine if the apartment were sold immediately and the money divided, or if one did not live in the apartment at all. But only a few can afford such luxury. And most citizens will have to live in such an apartment. And this is where the problems begin.

It is impossible to register (register) anyone on your share without the consent of the owners of all shares. In practice, this means that it will be impossible to register someone. But that's not so bad. Next, the question of paying for utilities and home repairs will inevitably arise. One owner has a computer and a washing machine, while the other does not. So why pay equally for electricity? And the law generally prohibits dividing personal accounts. How to divide rooms if there are two owners and 3 rooms?

As life shows, if the owners could not live together, then they are unlikely to get along in the future. And their life often turns into a nightmare with constant scandals, involving neighbors, police, and strangers.

Therefore, the inevitable question is what to do next. After all, it is no longer possible to live as before. The situation, in fact, is not at all a dead end, but its solution may depend on a host of circumstances.

What gives the definition and allocation of shares in kind

To resolve the situation, it is necessary to separate the shares of each owner. That is, make several real estate objects out of one apartment. In this case, the advantages are obvious. Firstly, when the apartment is divided in reality, everyone understands where whose property is located. In this case, you can already hang a lock on your door. And if a neighbor enters there, the issue will be considered in terms of criminal liability. Secondly, you will be able to register your spouse or other citizens in your area. This also means a lot. Thirdly, at least your share can be sold, exchanged, or rented out.

In addition, we should not forget about one more circumstance. If one of the owners of a share in common property wishes to sell it, then the owners of other shares will have the preemptive right to buy it. This means that the owner of the share will have to obtain from his neighbors a written refusal to purchase his share before he can sell it to any third party. And if the price offered to neighbors, and actually indicated in the purchase and sale agreement, differs, then his neighbors have the right to appeal the legality of such a transaction in court.

With the allocation of a share, the issues of paying for utilities and repairs are also partially resolved. Although the personal account will remain the same, the owners will perform joint and several obligations to pay for utilities, that is, pay equally. Therefore, after the theoretical determination of shares, they move on to the practical part, that is, the determination and allocation of shares in kind.

Therefore, let’s look at typical options for solving this issue. Although their choice may be limited in each specific case.

Simple and convenient option

Let's start from simple to complex. As you know, there are different types of apartments, but a house that has at least two apartments should be considered multi-apartment. That is, such a house can be one-story. In this case, identifying and then separating the shares is quite simple. According to the law, the apartment can in reality be divided in half, but a number of technical requirements must be met. This is the presence of a separate exit and isolated utility rooms for each of the shares (kitchen, bathroom, bath). In a one-story house, it is most often possible to meet such requirements. That’s why most owners go for this option.

The owners are reconstructing their home, and technically the house becomes completely divisible. As a result of such actions, “half the house” and other similar words are formed. The only difficulty again is with determining the shares in kind, since the rooms have different areas and are not divided equally. In this case, the owners will have to seek a compromise and come to an agreement so that all the premises are divided equally, and the owner who received the majority of the area will have to compensate for the excess area with money or other property. If there is an odd number of rooms, then it is possible that the large one will go to one person, and the two small ones to another owner. And the difference will be compensated.

Therefore, despite a number of technical difficulties, owners usually manage to resolve the issue on favorable terms.

Apartment in an apartment building

However, if the apartment is located on the 9th floor of a multi-story building, where any reconstruction is prohibited, how can a separate entrance be cut? From a legal point of view, the situation is deadlock. But since there are many such cases, judicial practice is forced to look for solutions.

Technically, an apartment in an apartment building cannot be divided in half. And any construction and technical examination will confirm this. In this case, the ordinary apartment will gradually turn into a communal apartment. This is done relatively simply, if only the rooms in it can be divided. The court will try to divide the rooms in half so that the area of ​​the resulting shares is approximately equal. This option is practically possible in large apartments consisting of 4 or 5 rooms. In such an apartment, you can divide the rooms so that the total area of ​​the shares is approximately equal.

If such problems exist, it becomes necessary to determine the procedure for using the balcony, kitchen and other common areas. The ideal option is for the parties to agree on how best to live their lives. In such a situation, the court will happily approve the settlement agreement, and the issue will be resolved.

It is much worse when these issues have to be resolved by the court in the absence of the consent of the co-owners. Then the court's decision will not only not solve the problem, but will make it even worse. After all, the party that feels disadvantaged will not simply leave this matter, and therefore problems in later life are guaranteed for both owners.

This is where the experience of our specialists in solving these issues comes into play. After all, when negotiating, our specialists have nothing to do with mutual hatred or hostility. Therefore, the other party is more likely to make contact with them. Many of our specialists also have the skills of a psychologist and can negotiate with several people at the same time. This means that it will be much easier to reach the stubborn co-owner. In addition, our specialists try to extinguish the conflict and bring the parties to a normal, human dialogue.

The best way is not threats or pressure, as many believe and act, but a normal, understandable and accessible explanation of the situation to the parties, an explanation of the rules of the law and the capabilities of the court.

As our practice shows, in most cases our specialists resolve issues by reaching a settlement agreement. Because this is the best option. In one of these cases, our employees managed to convince spouses who had even been talking to each other through intermediaries (police officers and neighbors) to come to an agreement for several years. Because it was impossible to resolve the impasse otherwise. In some situations, we convince owners to sell their shares to one person, since this is the most reasonable option, or to sell their share to another party in installments, since a person may not have a large amount of money right away.

In any, even the most advanced situation, our specialists will find an option that will suit all co-owners. Therefore, the choice is yours: to litigate for years or resolve the issue with our help relatively quickly and inexpensively.