How is a non-privatized apartment divided during a divorce?

Status of a non-privatized apartment

Any apartment or residential building has its own owner. Such owners may be:

• citizens;
• organizations;
• urban or rural settlement, region or state.

Legal entities have their own housing stock, residential premises from which are distributed among citizens in need of housing. In this case, the residential premises do not become property, but are transferred for indefinite use under a social tenancy agreement.

Previously, citizens could not obtain ownership or buy an apartment; they only had the right to use residential premises provided to them by the state or the organization in which they worked. Now the situation has changed dramatically: the state provides free apartments only to certain categories of citizens:

• for the poor;
• children left without parental care upon reaching adulthood;
• those who lost their housing as a result of natural disasters or catastrophes.

Currently, there remains a small number of residential premises that citizens have not yet privatized for a variety of reasons; in such cases, the state still remains the owner of the housing, giving those registered there the right to indefinite use of apartments in the status of a tenant.

This status allows residents to use the apartment for living, but not to dispose of it in full, as full owners of privatized residential premises.

There is another category of apartments that citizens use under a social tenancy agreement: departmental housing. Such real estate is provided to employees of individual organizations for the duration of their work in the institution that owns the residential premises.

The legal basis for using departmental housing is similar to state housing, but there are differences: a citizen can use an apartment only as long as he works in the institution; after dismissal, he is obliged to leave it.

Non-privatized apartments used under a social tenancy agreement are divided into two different housing stocks:

1. Social housing . The apartment is provided to certain above-mentioned categories of citizens who have the right to do so.
2. Specialized . Such residential premises include departmental apartments, housing for military personnel, as well as those provided to refugees, displaced persons and other categories of citizens.

Legal status of municipal housing

Municipal housing is the property of the municipality. Citizens live in a municipal apartment on the basis of a social rental agreement, which is concluded with all family members or with one of them.

Under a social tenancy agreement, the authorized local government body, acting on behalf of the owner of the housing stock, transfers housing to the citizen for possession and use. At the same time, the right to dispose of real estate remains with the owner (Article 60 of the Housing Code of the Russian Federation).

You should know! If a social tenancy agreement is concluded by only one of the spouses, the second has the right to live together with him. At the same time, husband and wife have equal rights and responsibilities in relation to municipal housing (for example, they are obliged to pay utilities, have the right to live in the premises).

Who is the owner of non-privatized housing?

Any residential building or apartment is someone's property. This could be an individual citizen, a public organization, a city administration, a region or region, or a state.

Public housing is a housing stock intended for distribution to needy citizens. It is transferred for use to people in accordance with the social tenancy agreement (SLA) for living space. The agreement has no term limits and remains in force for an unlimited number of years.

During the existence of the USSR, an apartment could not be the property of a citizen and one could live in it only if one had a rental agreement in hand. Today the state rents out housing under such an agreement only to especially needy citizens:

• children left orphans;
• low-income families;
• citizens who lost their housing due to natural disasters, etc.

Most of the apartments received in accordance with the DSN, the citizens registered in them, were privatized. However, there are those who, for various reasons, did not privatize such housing and its owner is still the state, and the residents are tenants.

This status allows them to use the apartment, but they do not have the right to completely dispose of it (sell, give, etc.).

Also, according to the DSN, the category of citizens who received housing while working in government institutions and bodies, as well as citizens living in departmental apartments, can live in apartments. The legal status of such housing is generally similar to that described above. However, there is a significant difference, which is that you can only live in such an apartment for the period specified in the rental agreement. When changing place of service or work, the employer is obliged to vacate the apartment.

Despite the fact that the legal status of such apartments is the same, they belong to different forms of housing:

• housing rented out for social rent by municipal or federal authorities constitutes a social fund;
• Housing rented to specialists, government employees, displaced persons, military personnel, etc. constitutes a special housing stock.

Features of the division of privatized housing between relatives

Ideally, a partition in kind provides for the allocation of a separate entrance to each resident, but this option is practically impossible in a city apartment. In order not to rebuild your home, it is better to agree on maintaining normal relations after the division and provide your friend with free access to common premises.

• as a percentage. This option is more acceptable, because... To satisfy the rights of each tenant, you can sell the apartment and divide the amount received in accordance with the intended shares, or compensate the required amount with money or property.

We recommend reading: What is residence permit decoding

Rights to a municipal apartment during divorce

Most actions related to housing under a social tenancy agreement are carried out in agreement with the landlord.

After a divorce, Art. 69 Housing Code of the Russian Federation. It states that citizens indicated in the social tenancy agreement, but who have ceased to be members of the tenant’s family, have the right to use residential premises on an equal basis with him and his relatives.

Based on clause 30 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 2, 2009 No. 14, former spouses have the right to demand that employers enter into an agreement to determine the amount and procedure for paying fees for housing and communal services, as well as to separate personal accounts. If division is refused, the issue is resolved through the court.

Is such an apartment divided as joint property?

Unfortunately, housing occupied under a social tenancy agreement cannot be divided during a divorce, since it is not the property of the spouses and does not belong to jointly acquired property.

The spouses are not the owners of this housing and did not own it jointly, as required by the provisions of the Family Code, establishing the legal regime for the property of the spouses.

None of the spouses had any rights other than the right to use and reside in the non-privatized apartment.

However, there are several ways to divide the apartment in this case, or we will reserve the right to use it for the spouses.

Can such an apartment be considered jointly acquired property?

According to current legislation, an apartment received under the DSA cannot be considered jointly acquired property and is not subject to division after a divorce. In accordance with the meaning of the Family Code of Russia, such housing is not the property of the spouses living in it; they only have the right to live in a non-privatized apartment.

However, there are a number of ways to divide housing or retain the right of use. In such a situation, you should not guess about how much a lawyer’s services cost during divorce and division of property, but seek advice from a professional lawyer who can solve the problem in a legally competent manner.

When partition is not possible

The state has the right to refuse both privatization and the exchange of real estate for the purpose of dividing it between relatives in the following cases:

• One of the family members has a more severe contagious disease.
• The housing used or planned as exchange is dilapidated and/or does not meet sanitary standards.
• Residents are planned to be evicted for their actions/inactions.

It is almost impossible to deal with the division of a non-privatized apartment between relatives without the help of an experienced lawyer. Before dealing with this issue, we recommend that you consult with professionals for a free consultation. If necessary, we will provide more significant support by taking on the preparation of documents or working with the judicial authorities.

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What you need to know when dividing a non-privatized apartment

When using a non-privatized apartment, a married couple must remember several features of its operation and division:

1. If one of the spouses is not registered in the apartment, regardless of registration or lack thereof of the other spouse, he does not have any rights to this residential premises during a divorce.
2. If a husband or wife refuses to participate in the privatization of real estate, they lose all rights to the apartment.
3. When spouses divorce, they do not have the right to demand an exchange of living space from the owner of the apartment, no matter who he is, no one is obliged to provide them with separate housing. Former spouses look for any option for exchange or division on their own.

In case of divorce and division of joint property, non-privatized residential premises will in any case remain the property of its owner (state, municipal authorities, etc.) and is not subject to division.

The only acceptable option in the vast majority of cases may be the privatization of the apartment followed by division into shares or sale and division of the proceeds.

The exchange of non-privatized residential premises is unlikely, since the former spouses will have to find such exchange options that would suit both parties, and they can only exchange for the same non-privatized apartments.

How is public housing divided if there are children?

When dividing a municipal apartment with children living in it, former spouses may encounter a number of problems that hinder the process:

1. a minor child does not own a share in municipal real estate;
2. A child is deregistered only if new housing is provided, no smaller in size. He registers with one of the parents. The quality of the living space must meet the standards and not be worse than before;
3. If the parents did not comply with the above conditions, the exchange or other actions with state property are considered invalid. Violations are dealt with by the guardianship authority. During a divorce, if the child’s rights were violated, the court will restore him to his former residence address.

When completing the procedure, parents cannot ignore their child; they must include him in the share both before and after this age threshold. If these parameters are not met, the transaction will also be considered invalid.

Summarizing the above, we can conclude: registration in a municipal apartment does not give the right to it as personal property. Property claims do not depend on registration. After a divorce, the main tenant can evict the former spouse from the occupied living space.

If the other half is not registered in the apartment, after the divorce process she loses the right to live in it. When living together in the same territory after a divorce, both are obliged to pay personal bills in equal shares.

The best option for dividing state property is to privatize housing before the divorce process and then allocate parts of it to all family members. After the procedure, the owners deal with it at their own discretion. Privatization is impossible without the consent of all family members.

The reasons for the division of real estate are most often conflicts between relatives. Circumstances are such that once close people simply cannot use square meters together anymore.

Many still live in public housing. Therefore, the question of how to divide a municipal apartment remains relevant. Not everyone knows how to implement their plans correctly, so as not to make critical mistakes and aggravate the situation.

How can you divide non-privatized housing?

Methods for dividing non-privatized housing include:

• privatization of an apartment received under the DSN;
• division of the apartment after its exchange;
• recognition of the right of residence for residents of an apartment included in a social or special housing fund.

When dividing a non-privatized apartment, payment of compensation to one of the spouses is not allowed. Such housing is not the property of the spouses living in it and cannot be transferred or sold to anyone.

In such situations, regardless of how much a lawyer’s services cost for divorce and division of property, you should first of all contact a specialist who will help divide a non-privatized apartment in accordance with current legislation.

Privatization and subsequent division of the apartment

Features of privatization are regulated by Federal Law No. 178-FZ dated December 21, 2001. What the procedure looks like:

1. Accounting for the number of participants. All persons registered for housing have the right to participate in privatization. If they refuse this, a written refusal is issued. If children are included in the social tenancy agreement, but are not registered in the living space, permission from the guardianship authorities will be required.
2. Collection of documents.
3. Submission of documents for privatization to the MFC or municipal administration.
4. Concluding an agreement on the transfer of ownership.

Documents required for privatization:

The main document giving the right to the procedure is a warrant or social tenancy agreement. Also at different stages, citizens will need:

• technical and cadastral passports;
• extracts from the house register and the Unified State Register of Real Estate;
• a certificate from the BTI to confirm non-participation in privatization earlier;
• personal account for housing and communal services;
• refusals of other persons from privatization certified by a notary office;
• permission from the guardianship authorities (if there are children);
• participants' passports.

Before submitting the documentation, a state fee of 2000 rubles is paid. from each participant. Children under 14 years of age are exempt from payment.

Exchange of a non-privatized apartment

What does “exchange of a municipal apartment” mean? This means that tenants must find two other non-privatized apartments to replace their non-privatized apartment, obtain the consent of the apartment owner (municipal or state) and make the exchange.

Despite the apparent simplicity of this method of solving the problem, it is incredibly complex. It is not so easy to find two small apartments of equal value and agree with the municipality on an exchange for one large one, conclude an agreement for the exchange of residential premises, or re-issue apartment rental agreements.

Moreover, the exchange of non-privatized apartments requires the mutual consent of the divorcing spouses. It happens that the tense relationship between husband and wife does not allow them to make informed decisions. If one of the spouses does not consent to the exchange, you will have to go to court.

And the legal battle over the exchange of a non-privatized apartment can be long and complicated. After all, the court will take into account the interests of both spouses. The process of dividing non-privatized housing can be especially difficult if incapacitated, partially capable, or minor residents - members of the tenant's family - lived in it. The guardianship and trusteeship authority will necessarily take part in the judicial process.

Reservation of the right of residence to the spouse

According to housing legislation, family members of the tenant of an apartment from the social fund can use it equally even after the divorce.

The only condition for this is that the ex-spouse must permanently reside in the apartment (this does not deprive him of the right to go on vacation or visit friends).

Equal use of housing means that the ex-spouse can:

• sublease an apartment;
• to inhabit other persons;
• ask for an apartment exchange, etc.

The only thing that a divorce will affect is the way in which obligations to maintain housing are fulfilled. From the moment the family relationship ends, the former family member pays all bills independently and is responsible for this.

He has the right to ask the landlord to enter into a separate agreement with him on the amount of payment for housing and utilities. The amount of the receipt (which is sent separately to the former family member) will be calculated based on his share in the apartment.

As for social housing provided by the employer, the situation is different. The former family member does not retain the right to use the apartment. But if the ex-spouse does not have other housing and the opportunity to purchase it, by a court decision he may retain the right to live in a state apartment. True, only for a certain period: until the end of the heating season or until other housing is found, for example.

If an employer, under family law, pays alimony to a former spouse or children, he may be required to provide them with housing in place of the previous one.

When the spouse’s right of residence is preserved through the court, an agreement can be concluded to determine the procedure for using the residential premises. In this case, each spouse is assigned a separate room (if possible), and a schedule for the use of auxiliary premises (kitchen, bathroom, balcony) is established.

If the court does not consider it necessary to grant the second spouse the right to use the disputed premises (for example, due to the family member having his own home), the second spouse is subject to eviction from the non-privatized apartment.

Sale

Tenants who are related to each other carry out privatization of a municipal apartment, as a result of which they acquire ownership rights to it.

After carrying out this procedure, the latter enter into a purchase and sale agreement for this housing with third parties, and the funds received are divided among all owners according to the agreement in relation to the shares each of them has.

Example. There are two residents living in a council apartment, who are brothers. At some point, the latter agreed to privatize the said property with its further sale and division of the profits. The total cost of the sale of the specified housing was 2,000,000 rubles. 1,000,000 rubles were spent on privatization. As a result, at the end of this operation, the brothers received 1,000,000 rubles for two or 500,000 rubles for each.

Exchange

One of the owners transfers his individual property to the second in exchange for a share of a previously municipal, and currently privatized apartment.

If a consensus is reached, an exchange of property is carried out, upon completion of which one of the parties remains the sole owner of the disputed apartment.

Example. Brother and sister privatized the apartment in which they previously lived. After carrying out these actions, the brother made an offer to his sister to transfer his personal car to them in exchange for her share of the housing. If you agree to such a transaction, documents are drawn up that confirm the sister’s right to own a car, and the brother’s status as the sole owner of residential real estate.

Compensation

One of the apartment owners buys out the share of the second, which subsequently gives the first the opportunity to own residential real estate solely. The right of residence can also be purchased.

Example. Two sisters are the owners of a privatized apartment, the total cost of which is 4,000,000 rubles. Thus, each of them is the owner of a share of the specified real estate in the amount of 2,000,000 rubles. One of the sisters offers the other to buy her part of the home, after which the parties enter into a purchase and sale agreement, which gives the buying party the right to full ownership of residential real estate.

How is municipal housing divided if there are minor children?

When dividing municipal housing, the interests of minor children must be taken into account. The child has the right to claim a share in real estate during privatization. He also retains the right to live with one of his parents in the event of an exchange of a municipal apartment.

A child cannot be discharged from a municipal apartment following his mother or father unless he is provided with new housing with permanent registration together with the parent with whom his place of residence is determined.

Guardianship authorities monitor the observance of children's rights. In case of violation of the law requiring the obligation to provide a minor with housing, a claim may be filed to restore registration at the previous address of residence.

We must remember! Upon reaching the age of fourteen, the child gives his consent to privatization. He also has the right to refuse to participate in it. At the same time, he retains the right to live in a municipal apartment.

Instructions for dividing a non-privatized apartment between relatives

Let's look at both options for this section in more detail. It should be borne in mind that there are no alternative methods, because in fact a non-privatized apartment belongs to the state and residents only have the right to live in it.

Voluntarily

If all family members agree, then there is no problem as such, be it exchange or privatization. In the first case, everyone helps as much as they can, in the second, everyone collects money to register the property as private property. There will be virtually no expenses, apart from the obligatory payment to the treasury, to obtain your property. The only expense: for state registration of new owners. It costs 2000 rubles.

Section by agreement

The division of a municipal apartment by agreement of the parties is possible only if all property owners agree to carry out this process. This document must be drawn up in writing and certified by a notary.

What to write?

The voluntary separation agreement must contain the following information:

• Full names of all co-owners;
• information about the subject of the section such as address, total area, etc.;
• technical information;
• the procedure for the privatization of real estate, as well as the further division of its shares;
• information about the encumbrances imposed on the subject of division or their absence;
• determining the procedure for owners to bear costs associated with the privatization process and division of property;
• additional points that are important for the full completion of the division procedure;
• date of document preparation;
• signatures of all parties.

An agreement can also be concluded regarding the procedure for using a municipal apartment and dividing rooms for each tenant. There is no need to register such an agreement, but it is unlikely to be enforced.

How to register?

After the agreement has been drawn up, signed by all parties and certified by a notary, the owners need to contact the Rosreestr authorities, because if the transaction provides for the division of real estate into shares, then these changes must be registered in the manner prescribed by law.

Within one month after contacting the specified government body to make appropriate changes to the register, the owners will be able to receive documents confirming their property rights to the newly formed shares of the disputed apartment.

Important! The procedure is described only for cases when a municipal apartment is privatized by residents. In other cases, it is impossible to register ownership of municipal housing even within the framework of the concluded agreement!

Division through court

The division of municipal housing in court makes sense only if the residents of the disputed apartment could not find common ground in deciding the feasibility of its privatization.

Procedure

In order to resolve the issue of division of residential real estate owned by municipal authorities, it is necessary to go through the following procedure in court.

Sample statement of claim

The application form to the EIRC is not regulated by law. To fill out you will need the following information:

• name of the management company;
• Full name, passport details, address of the applicant;
• account number;
• petition for separation;
• social rent agreement number;
• Full name, number of registered citizens, their signatures;
• date of application and signature of the applicant.

A statement of claim must be filed when the management company refuses to divide personal accounts. By contacting the EIRC, the citizen will prove that he has taken measures for a voluntary settlement.

The statement of claim must include the following information:

• name of the court at the location of the apartment;
• applicant's details (full name, registration address, passport details, telephone number);
• information about the defendant (full name, registration address, passport details, telephone number);
• third party (management company);
• name of the application;
• information about the termination of marriage;
• information that you applied to the management company to split the accounts, but were refused;
• reference to law;
• request for division of accounts;
• additional requirements (if any);
• list of documents;
• date and signature.

Documentation

The court must provide:

• Statement.
• Receipt for payment of state duty.
• The plaintiff's passport or other identity document.
• Documents relating to the privatization or exchange of real estate.

It is recommended to attach as much documentation as possible, even if from your point of view in this case this or that paper is not required. The defendant has the right to do the same.

When drawing up a statement of claim, you should be guided by Article 131 of the Code of Civil Procedure of the Russian Federation. In this case, it is especially important to describe in detail all the features of the planned section, including even small details. We offer a sample statement of claim for a standard division of an apartment, but it is easy to supplement it with the necessary information.

Price

According to paragraphs. 3 clause 1 article 333.19 of the Tax Code of the Russian Federation, the person filing the claim is responsible for paying the state fee, which is 300 rubles. In addition, the plaintiff may incur additional costs for paying for the services of a representative, but this case is individual for each case under consideration.

Separately, the review of the RF Supreme Court on privatization disputes states that claims in this category of cases are not subject to assessment and the value of real estate. subject to privatization, evaluation is not required to file a claim.

What documents are needed for privatization?

To privatize housing you will need:

1. rental agreement. Until 2005, tenants were given a warrant. Some regions require you to sign an agreement first. In others, you can present the previous document;
2. housing registration certificate. Obtained from BTI, MFC. To apply, you will need a civil passport and a rental agreement. The document costs 900 rubles. Production time - a week;
3. certificate of persons registered in the apartment. Order a document at the passport office, MFC;
4. an extract from the accounting department on the status of the personal account;
5. personal documents of all privatization participants: passports, birth certificates of children;
6. a certificate confirming that citizens did not participate (took part) in privatization. A person who has undergone the procedure before reaching adulthood can re-privatize property. Other citizens do not have the right to take part in the process a second time. When changing place of residence, a certificate is taken at the address of previous residence;
7. refusal of privatization. The document is certified by a notary. If parents are against participation in the privatization of the child, they must submit permission from the guardianship authorities;
8. a power of attorney certified by a notary, if the procedure is carried out for the participant by an authorized representative.

Expert opinion

Popov Konstantin Ignatievich

Practitioner lawyer with 6 years of experience. Specialization: family law. Member of the Bar Association.

When participating in the privatization of an incompetent person, a court decision to recognize him as such and the approval of the guardianship authorities will be required. If your last name has changed, you will need a marriage or divorce certificate.

When a person in prison participates in the procedure, a court verdict is presented. If a citizen does not want to participate in the registration of property, this fact is certified by the head of the correctional institution.

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Lawyer answers questions about the division of a municipal apartment during a divorce

What to do if a male employer drives you out onto the street, and your ex-wife and children have nowhere to live?

To use the right of residence, you must go to court. Based on the court decision, the woman will be able to use the premises on an equal basis with the tenant, or another solution to the problem will be found.

Is it possible to sell a municipal apartment and then divide the proceeds?

Such housing is not the property of citizens, and its sale is strictly prohibited. Privatization of real estate with subsequent sale to other persons is allowed.