Please, 1/4 share in a 2-room apartment of 50 sq m, is this a significant share or an insignificant one, can it be redeemed through the court. | Moscow

• 2.8.2017
• 177211

Former spouses, as well as the majority of those who received housing as a gift, inheritance or through privatization - all this is a multimillion-dollar army of “co-owners” who own shares in apartments. It is the properties that are in shared ownership that account for the lion's share of housing conflicts, which cannot even be resolved by going to court. But extrajudicial mechanisms offer as many as four ways to remove owners from the conflict while respecting the interests of all its participants. This works even in cases where the dispute has reached a stage where the parties are no longer capable of peaceful negotiations.

Natalya Mikhailyukova, a lawyer for the Russian Guild of Realtors, admitted that every day people living in apartments that are in shared ownership come to her for consultations. The main question is what to do if other co-owners want to move into this apartment, sell their share, or otherwise claim their rights.

Currently in Yekaterinburg, only about fifty individual shares in apartments are sold through real estate agencies. In total, there are much more such objects on the market, but they are sold privately or through black realtors, without the involvement of reputable agencies. This happens due to the fact that professional market participants are extremely reluctant to work with individual property shares.

Yulia Balay

director of the office of the Academy of Sciences "Novosel"

If a share in the ownership of an apartment is put up for free sale, this almost certainly means that there is a conflict between the co-owners, and they are no longer able to resolve the situation peacefully, even if this path will allow the co-owners to receive greater benefits. Selling a separate share in an apartment to a third party is always a loss of money - about 30% of the value of the property. That is, half of the apartment worth 2 million will be sold not for a million, but for 700 thousand. And even in this case, the chance of selling is one in ten. If a client comes to the agency selling a separate share, the realtor understands that if he undertakes to sell it, he will find himself in an extremely unpleasant situation. The only way for a realtor to help such a client and save his face is to become a mediator - an intermediary between the co-owners and try to resolve the situation in the interests of all owners, leaving out all personal relationships of the participants.

Selling a share of an apartment “outside” is not only a losing option in terms of money, but is also fraught with further escalation of the conflict due to the inclusion of a new owner of the share. At the same time, there are four peaceful (and economically feasible) ways to resolve the problem share situation. Of course, the owners of problematic properties know or at least guess about the existence of these methods, but do not always understand how to implement them in real life, especially in conditions of conflict between co-owners.

Method 1. Sell the entire apartment

If the owners sell the entire “shared” apartment, they will receive the full price for it. And it will be possible to divide it in proportion to shares. After which everyone buys a home with their own money or uses it in some other way. The scheme can be effective even if initially there is only a one-room apartment in shared ownership.

Yulia Balay

director of the office of the Academy of Sciences "Novosel"

The man left behind a one-room apartment, purchased outside of marriage. It was claimed by the wife (now a widow) and the child from the testator’s first marriage. Accordingly, everyone was entitled to one second share in the property. The heirs were unable to come to a common decision. One of the co-owners tried to sell his share, but was unable to. As a result, no one lived in the apartment and it was even impossible to rent it out. The child's mother (the testator's ex-wife) contacted a realtor. He found two rooms in communal apartments, the total cost of which was equal to the market value of the disputed apartment. The parties were satisfied with this version of the “exchange”. The apartment was sold, the heirs received a room in return for their shares, and are now renting them out.

Method 2. One of the co-owners sells a share to another

From a logistics point of view, selling a share “among your own” is the simplest option: you don’t have to look for a buyer, and you don’t have to notify all co-owners of your desire to sell your share. That is, if a share is sold externally, the seller is obliged to offer to buy out this share to other co-owners (more on this below). If the owner of the share sells it to one of the co-owners, then the sale does not need to be coordinated with anyone, even if other people also own the apartment.

Separately, it is worth considering the issue of determining the price of the share being sold. As Vlada Pavlova, a real estate specialist at the Link Academy of Sciences, notes, when buying and selling shares between co-owners there is always an interested party. It is it that is forced to agree to the terms of the other party to the transaction. For example, recently the owner of four shares in an apartment worth 3 million rubles bought the fifth share for 1 million rubles, that is, he overpaid by more than one and a half times. Often the opposite situation arises - the owner of a small share, in order to get at least something for it, gives away the share for next to nothing. It happens that for a tenth of the real price.

However, often the most difficult thing in an internal sale is not determining the price, but the fundamental ability to negotiate.

Vlada Pavlova

real estate specialist at Link Academy of Sciences

Case from practice. The apartment is privatized for three – father, mother and child. The parents divorced, the father left the apartment and ended all relations with his ex-wife. Her attempts to buy out her husband’s share did not end in anything. This lasted 8 years! As a result, the woman turned to a realtor. He sent the man a letter: “The wife wants to buy out your share, if you are interested, contact me.” The person agreed to communicate with the realtor. The deal was drawn up so that the former spouses would not meet in person. Since the last share in the apartment was being purchased, the bank agreed to provide a mortgage loan for it. So, even in the bank, when completing the transaction, the ex-spouses - the seller and the buyer - were in different rooms. Nevertheless, the purchase and sale was formalized. I note that the woman was able to buy out the share even without having enough money - with the help of a mortgage.

By the way, if the owner of a small share refuses to sell it to other co-owners, then theoretically it is possible to force him to do so. From Art. 252 of the Civil Code of the Russian Federation it follows that if the owner’s share is insignificant and he does not live in the apartment, then even without his consent the court can order the other co-owners to pay him the cost of the share and take this share for themselves. The same is stated in the Ruling of the Supreme Court of the Russian Federation N 56-В06-17 dated 10.24.06. However, in practice, “forcible” buyout of a share is practically never used.

Method 3. Agree on sharing an apartment

Participants in shared ownership can establish the procedure for using shares among themselves. This, by the way, is the most common scheme. However, in reality it works if there are at least as many rooms in the apartment as there are parties wanting to live in it. If the apartment, for example, is one-room, then either the court gets involved in resolving the conflict, or the co-owners find non-trivial solutions. For example, a shared apartment can be rented out and the income received can be divided in proportion to shares. Or here’s another option - the co-owners agree to live in the apartment in turns, each for, for example, a year.

Lyudmila Plotnikova

lawyer of the Ural Chamber of Real Estate

If dialogue between co-owners does not work out, then you should go to court. He will determine the procedure for using the area, taking into account the real situation of each owner. The calculation will take into account whether each of the co-owners has a different living space, children, dependents, financial situation, etc. If the apartment is one-room, then a decision may be made that the owner of a smaller share with many children who has no other housing has the right to live in it, and the owner of a larger share of the disputed apartment will be “asked” on the basis that he owns other living space.

Lawyers recall cases when the court evicted a co-owner living in it from an apartment and moved in another co-owner. However, if we are talking about an apartment with two or more rooms, then usually the court transfers the rooms to the co-owners for use, focusing on the size of the rooms and shares in the property.

Method 4. Rent a share from a co-owner

This option is a variation of method No. 3. Here the parties also need to agree on joint use. But in the end, the co-owners play different roles.

Natalia Mikhailyukova

lawyer of the Russian Guild of Realtors

If the apartment does not allow all co-owners to use it, then it happens that they agree like this - one co-owner lives in the apartment and gives the other something like rent, calculated based on the size of the shares.

Theoretically, there is also a fifth way to solve the situation with a problematic share, but in practice it is suitable (sometimes) only for private houses, but not for apartments. We are talking about allocating a share in kind. By mutual agreement or by court decision, housing can be physically divided between co-owners. Everyone will receive a part of it for use. But each such part should have not only a living room, but also a kitchen, a bathroom and a separate entrance. It is impossible to organize several entrances, kitchens and bathrooms in a separate apartment. Sometimes this can be done in a private home.

Share in an apartment. What it is

According to Article 244 of the Civil Code, property can be either shared or joint.

Joint ownership is when shares in an apartment are not designated in any way . For example, if housing is purchased by spouses, but is registered in the name of one of them, this does not mean that he is the owner of the apartment. By default, it is joint property between husband and wife. During a divorce and division of property, the judge will divide the apartment equally, but may deviate from equality of shares if:

• the child remains with one of the parents;
• one of the spouses invested a large part in the apartment (for example, sold pre-marital property).

Shared ownership is the ownership of an apartment divided into shares . Such property may appear for various reasons, for example:

• the apartment was inherited by several heirs;
• purchased or accepted as a gift by several people;
• separated by spouses.

In this case, the shares are always indicated in the apartment certificate, for example, ½, 1/3, etc.
Attention! A fractional number is not at all a proportional number of square meters, as many people think, it is part of the right to own an apartment .
For example, the owner of a 1/3 share of a sixty-meter apartment does not have the right to fence off 20 meters and settle there.

Who can live in which room can only be determined in two ways:

• agree among themselves;
• ask the court to decide the procedure for using the living space.

But even in the case of litigation, it is not always possible to determine the order of use of housing , for example, if a two-room apartment has three or more shareholders, the judge will not divide the rooms, he will simply refuse the claim due to impossibility. Therefore, in most cases, disputes about shares are resolved simply - by exchanging or selling the entire apartment .

Is it possible to deprive a share in an apartment without consent?

Shared ownership is a form of property ownership in which the property is divided into certain parts and each co-owner has equal rights (regardless of the size of the share).

Typically this type of ownership occurs when:

• alienation of a part in favor of other people (sale, donation, etc.);
• inheritance;
• division of property by former spouses during divorce.

Regardless of the method in which ownership was obtained, each co-owner can independently decide how to dispose of his property.

Of course, there are some restrictions. For example, in the article “ Preemptive right to buy out a share ” we told you who you can sell your part of the apartment to. However, no person has the right to force another to carry out the procedure for alienating his share.

The only government body that can decide to seize a share from a person’s property is the court.

So, there are three ways to transfer part of the apartment to yourself:

So, the first method does not require going to court. We have already talked about how to voluntarily give up a share in a privatized apartment.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The second and third methods prescribe that you must apply to a district court of general jurisdiction. The most preferable option is to go to court with a claim to recognize the share as insignificant and buy it out. If the share of the apartment is sold “for debts,” then it will have to be bought back from the new owner.

That is why, if you have a need to purchase a share of housing from a co-owner (for example, he does not pay rent, has accumulated a lot of loans and collectors are systematically coming to you), then the only right decision will be to recognize part of the apartment as insignificant and then buy it out.

How can you dispose of your share?

According to Article 244 of the Civil Code, your part of the apartment can be:

• sell or donate;
• bequeath;
• lay down

However, since this is still a share, and not the entire apartment, it will not be possible to sell it without demand. Article 250 of the Civil Code established the advantage of co-participants in purchasing a share upon its sale. For example, if you are going to sell your share, you must first offer to buy it from you to the other co-owners of the apartment at the announced price . Moreover, the proposal must be written, for example, in a registered letter with notification .

Please note: You can give, bequeath or pledge your share without asking .

If you are faced with the question of whether to sell or donate a share , you need to consider several nuances:

• if you own the share for less than 3 years, you will need to pay 13% tax on the sale;
• when making a gift, the donee will pay the tax (close relatives - children, parents, husband/wife - do not pay tax);
• a gifted share will not be divided between spouses during a divorce , unlike a sold one (this means the case when the owner of the share alienates it in favor of his child, who is already married).

But before disposing of a share that is not defined (joint property), it must first be determined .

How to sell a share in an apartment

Owners of joint real estate have the right to redeem their share with priority

at the seller's price (Article 250 of the Civil Code). An exception is the sale of an apartment at auction, or the sale of an allocated share in an individual housing construction project with a plot, a share in which also belongs to the owner.

Let us note that ignoring the preferential rights of the remaining owners when selling a share in housing will allow them to demand through the court the transfer of the rights and obligations of the buyer within three months (Article 250, Part 3 of the Civil Code)

The agreement to sell a share to existing owners must be formalized in writing, with the participation of a notary (Article 42 Part 1 of Law No. 218-FZ “On State Registration of Real Estate”). Those. You should draw up a notice with the notary, indicating the object and the price of sale, the circumstances of payment (terms, conditions, payment procedure), the deadline for transferring the property share, the list of persons whose right to use the share will be preserved, and other conditions.

Ways to notify owners of the intention to sell a share:

• notice sent expressly
  . The recipient signs and dates the copy;
• registered letter with a list of attachments
  . Confirmation of dispatch is a registered receipt signed by the recipient;
• notification through a notary
  . The transmission of the notice will be confirmed by a notary certificate.

If you are determined to sell the share, it is better to use the notification to the remaining owners through the notary, since during the subsequent registration of the sale, the notary will only be satisfied with the notarial form of notification. After the notification (the date of its receipt), the owners of the joint apartment will have 30 days to buy out the share

. Their silence is regarded as a lack of intention to participate in the ransom.

If there is no response from the remaining share owners of the property after a month, or they have not redeemed the share within this period, the share owner has the right to sell his real estate to any buyer. However, the sale price cannot be lower than the share owners stated in the notices, otherwise they will have to be notified in writing again, indicating the current (lower) price.

How to register a share in an apartment

As already explained, the share can be determined either by agreement or in court.

This is required by Article 244 of the Civil Code.

If all co-owners of a common apartment decide to amicably determine their shares, you need to do this:

• draw up a written agreement on the determination of shares;
• register it with Rosreestr.

Previously, all real estate transactions were notarized, but now this is not required. But it's not prohibited either.

And if there is no agreement among the partners, only the judge has the right to determine the shares . By default, shares in a common apartment are equal. But an increase in someone’s favor is also possible if:

• money was not invested equally in purchase or construction;
• one of the co-owners improved the condition of the apartment at his own expense (for example, installed water supply).

In this case, in Rosreestr the main document will not be an agreement, but a court decision.

○ How can you deprive the owner of a share in an apartment?

Participants in shared ownership cannot take shares from each other. Any methods of moral or physical coercion for the survival of a co-owner are illegal.

Deprivation of property rights is permitted only in exceptional cases. There are three ways to deprive an owner of a share in an apartment:

1. By his voluntary consent.
2. By the tribunal's decision.
3. As part of a forced buyout.

Let's look at each method in more detail.

✔ Voluntary consent.

This is a peaceful way to resolve the issue. The co-owners meet at the “negotiating table” and try to come to a compromise.

For example, co-owners may offer an unwanted owner to buy out his share. With a voluntary agreement, the decision made suits everyone.

✔ Court decision.

The precondition for the seizure of a share by court decision is always the illegal actions of the owner. The following circumstances may serve to initiate legal proceedings:

• The owner does not fulfill obligations to maintain the real estate;
• The owner does not fulfill his mortgage obligations.
• The owner violated the rights or legitimate interests of other persons (for example, neighbors or co-owners).
• Committing offenses that resulted in confiscation of property as punishment.

Forced seizure is possible only by court decision. This is guaranteed by law.

Clause 3 of Art. 35 of the Constitution of the Russian Federation: No one can be deprived of their property except by a court decision. Forced alienation of property for state needs can only be carried out subject to prior and equivalent compensation.

If the owner does not agree to the alienation voluntarily, and there are no grounds for making a corresponding court decision, there is only one way out - the forced redemption of a small share.

✔ Forced ransom.

To carry out a forced buyout, three conditions must be met simultaneously:

1. The share in the common ownership is insignificant.
2. The share cannot be allocated in kind.
3. The owner of the share does not have a significant interest in the use of the property.

It does not matter whether the owner agrees with the alienation or not. If the court decides that all three conditions are met, the share will be alienated and the owner will receive financial compensation.

It is interesting that the concept of “minor share” is not specified in any way by law. The judge decides independently in each case how significant the existing share in the common property right is.

Donation of a share in an apartment

This is the most profitable deal between close relatives. Notify about

There is no need for donations from other shareholders, and relatives do not pay gift taxes. Donation occurs in two steps:

• a deed of gift is drawn up;
• registered in Rosreestr.

The agreement for the donation of a share, that is, a deed of gift, is drawn up quite simply - it describes who is giving what to whom . The contract describes not the share, but the entire apartment, but the size of the share is indicated. Gift form.

After the deed of gift has been drawn up, it must be registered with Rosreestr . You can come to both the Rosreestr office and the MFC. In addition to the deed of gift, you need to take the passports of the donor and the donee and a certificate of share.

Relinquishment of a share in an apartment in the event of a gift is possible at any time . Only the donee can refuse without reasons, while the donor, having signed the deed of gift, can refuse only if his financial situation has worsened and donating a share will deprive him of his last home.

The deed of gift can subsequently be canceled if the donee encroaches on the life or health of the donor. But this must be a court decision, supported by a verdict .

Refusal is also possible when it is decided to privatize the apartment.

If you have not yet privatized an apartment , then it is worth reading here .

Share allocation scheme

Satisfaction of the right to an obligatory share is reflected in clause 2 of Art. 1149 of the Civil Code of the Russian Federation.

Option 1: There is not a will for all property. The obligatory share is allocated from the untested property. If it is not enough, then they turn to part of the property reflected in the will.

Option 2: The will completely covers the estate. The notary, regardless of the content of such a document, allocates a share to the obligatory heir. Preference is given to the property that was used by the person in need before the death of the testator (for example, a share in an apartment, especially if the dependent has no other housing).

Option 3: No will. Here there are equal opportunities between the obligatory applicants and the summoned heirs.

Important: If the heir under the will used the property, but the dependent did not, then the court may refuse the obligatory share or reduce it.

Conclusion

The award of a mandatory share is a guarantee of the protection of those who are unable to defend themselves.
Children and dependents should not be subject to the whims and moods of the testator. Especially if their financial situation was completely dependent on the deceased person. You can be left without an obligatory share only when the court makes such a decision (taking into account the financial situation of the applicants for the inheritance). The notary has no right to resolve such issues.

The video story will tell you what an obligatory share in an inheritance is.

How to give up a share in an apartment

If the apartment has not yet been privatized, but the decision to re-register has already been made, the housing is divided in equal parts among everyone who is registered in the apartment . As is known, adults can participate in privatization only once.

Sometimes adult children wonder how to give up their share in an apartment in favor of their parents. Such questions are not uncommon if, for example, it is possible to obtain a service apartment under a military certificate or under the Housing program. There are two options for the development of events:

• you can be discharged from your parental home before privatization;
• write a refusal of privatization from a notary.

In this case, the apartment transfer agreement will be drawn up only with the parents. But the situation is completely different if the child is a minor . Even if the guardianship council allows the child to be discharged to another home, the transaction may still be subsequently declared invalid. Therefore, it is better not to take risks and include the child in privatization.

Tip 1: How to take your share of the apartment

If your title document is a separation agreement between the spouses, and not a marriage contract, then notarization is not required. If you want to sell your share, you will have to take into account the pre-emptive right to purchase the share of each apartment owner. It is better to do this officially: notify the other owners in writing about the sale of your share and the terms of the transaction. Remember that you need to send a notice at least a month before the sale, because the state registrar will examine the documents you presented, evaluate the legality of the transaction and will require documents confirming that you have respected the right of pre-emption.

We recommend reading: Where to get money for a funeral

Share in a privatized apartment: how to sell it

The privatization procedure transfers the apartment into the common ownership of its residents. Most often, this ownership is equal, unless any other agreement has been made voluntarily between the residents. And according to the current legislation, each of those who privatize housing can dispose of their share in the apartment as they wish. Only first you need to separate the share in the privatized apartment from the general right of ownership.

We recommend reading: Law on silence in apartments