Is it possible to dispose of the right to use a privatized apartment?

The concept of apartment privatization

The concept of “privatization of an apartment” in the realities of the Russian Federation means the transfer of a residential property from state ownership into the hands of private owners , most often registered in this object and living in it.

When carrying out privatization, the right of ownership of housing is not necessarily granted to only one person: everyone registered in the apartment, including minor children, can participate in the procedure.

When it is carried out, each participant receives shares in the privatized apartment as a property with the right to sell, donate or transfer to third parties in the manner prescribed by law.

More information about the procedure for donating real estate can be found here.

At the same time, even if you are registered in a non-privatized apartment, this does not give you the right to privatize it , if you have previously participated in a similar procedure with another residential property: the right to privatize according to the law of the Russian Federation is granted one-time .

The only exceptions are children under the age of 18 - they can participate in privatization before reaching the age of majority and again after reaching 18 years of age.

Residents' rights of use

Family members have the right to live in a privatized apartment , unless otherwise established (31st), which terminates when family ties are broken and can be extended by agreement or by court decision.

The Housing Code additionally establishes a number of restrictions that serve the interests of low-income people and minors who are deprived of their only home. The owner needs to be careful, taking into account the special nature of housing relations, their social, and not just civil nature.

Next, we suggest watching a video that explains what members of the owner’s family are entitled to:

Documents for privatization of an apartment

The first thing you will need to privatize an apartment is documents.

You will have to spend some time collecting them, since the list of required certificates is quite extensive.

All necessary documents can be divided into two categories :

  1. basic, mandatory;
  2. additional, allowing to clarify controversial issues regarding the privatized object.

The list of main documents includes:

  • originals and photocopies of passports of all privatization participants;

The photocopy must have a sheet with a registration stamp, but it is not necessary to notarize the copies.

  • certificates of marriages and divorces of privatization participants;
  • birth certificates of children under 14 years of age, copies of these certificates;
  • an order for an apartment or a social tenancy agreement for housing. Such documents, if they are not available to the tenants, can be ordered from the Unified Information and Settlement Center ;
  • current technical passport for housing issued by the Bureau of Technical Inventory (BTI). It must indicate the square footage of the apartment, its number of floors, the number of rooms, and the plan. The technical passport must include information about the redevelopment of the apartment, if any;
  • cadastral plan of the apartment, which is issued by the Cadastral Chamber;
  • a certificate from the passport office or an extract from the house register about the persons currently registered in the apartment;

It is short-term, and therefore it is worth considering when applying that such a certificate is valid only 14 days after issue , and then it needs to be issued again.

  • extract for the property from the Unified State Register. Issued by the MFC or the Registration Chamber stating that this apartment has not yet been privatized;
  • an extract from the Unified State Register of Real Estate, providing information about the availability of other objects owned by everyone who is going to take part in the privatization of the apartment and what the grounds were for their acquisition;
  • a certificate from the BTI “Form No. 2” confirming non-participation in privatization earlier for each of the applicants;

  • a certificate of absence of debt on utility bills or payment receipts for the last six months.

In addition to these documents, you may also need the following additional documents:

  1. a statement of refusal from privatization, if one of those registered in the apartment does not want to participate in the process, but has not previously used their right to privatization;
  2. death certificates of people previously living and registered in the apartment;
  3. a notarized power of attorney, if the privatization will be executed by a person not participating in it (for example, a hired lawyer);
  4. a certificate from the OVIR confirming citizenship, if previously any of the participants was a citizen of another country.

This is not a complete list of additional documents. In each specific case, it can be supplemented with other clarifying certificates or papers.

Owner's powers

After checking the submitted documents, the authorized municipal authorities draw up a privatization agreement. Its content will depend on the will of citizens expressed when applying for privatization:

  • the application for participation in the privatization program will indicate a list of persons who have the rights of apartment tenants, as well as the composition of citizens wishing to purchase housing as property;
  • the text of the privatization agreement will only include persons who have expressed a desire to purchase an apartment as their property;
  • The persons indicated in the contract as owners apply for registration with the Rosreestr service, and the remaining family members are required to formalize a notarized refusal of privatization.

In the privatization application form, citizens must choose a joint or shared form of ownership. The key difference between these forms will be the features of the disposal of housing (for example, the sale of joint property is allowed only with the mutual consent of all owners, while the disposal of shares requires only notification of other property owners).

The right of ownership arises from the moment the corresponding entry is made in the state register of the Unified State Register of Real Estate, about which citizens will receive a document of title - an extract from the Unified State Register of Real Estate. At this moment, a complex of rights and responsibilities of the owner arises, among which the following can be distinguished:

  1. the right to dispose of residential premises for various types of civil transactions (sale, rental, donation, etc.), which can only be limited by legislative acts;
  2. the right to give permission for the permanent or temporary entry into the apartment of other citizens, even those who do not have family relations;
  3. the right to forced eviction and expulsion of persons from their own apartment when the grounds for legal residence are eliminated (for example, upon expiration of the lease agreement or temporary registration).

Along with the rights, the owner has many responsibilities - to bear the costs of maintaining the residential premises and common property of the apartment building; respect the legal rights and interests of owners of adjacent apartments, etc.

Although the rights of property owners are fully protected by law, in some cases they can be significantly limited. In relation to privatized apartments, such restrictions are as follows:

  • Arbitrary deprivation of the right to permanent use of an apartment is not allowed for persons who were part of the tenants and who formalized a notarized refusal to participate in the privatization transaction;
  • when disposing of housing (for example, when concluding a sales contract), the rights of permanent users must also be respected - they will retain the right even if the housing is transferred to a new owner (this clause must be included in the contract when making a transaction);
  • Arbitrary restrictions on the interests of the indicated permanent residents of the apartment are not allowed, and if controversial issues arise, an agreement on the procedure for using the real estate may be concluded.

Forced expulsion of citizens who have the right of permanent residence in a privatized apartment is allowed only in cases of violation of the general rules of housing legislation. Such cases include the occurrence of debt for utility services, a significant violation of the rights of other residents, destruction or damage to the property.

Stages of apartment privatization

The first stage takes place directly between the participants: you need to collect consent or refusal to participate in privatization from all persons registered in the apartment, select the owner or several owners, prepare their passport data for submission to the housing management department of the municipal district administration - it is in this division that the privatization agreement.

The next stage is the preparation of documents. It includes a visit to the EIRC and BTI, a trip to the passport office and the MFC, if the above documents are not available to the apartment residents.

After the final collection of documents, participants apply to the housing management department of the municipal district administration with an application for the right to privatize a residential property.

After considering this application and entering all the data into the EDGP register, all parties sign a uniform agreement and receive certificates confirming their rights to the privatized apartment.

Who has the right to an apartment?

It is necessary to immediately note who has the right to a privatized apartment. Regardless of how this right is acquired, the scope of powers is equal . A person could receive an apartment as a gift, under a sales contract, as an inheritance, or as a result of privatization - there is no difference.

The content of the concept is disclosed in Chapter 13 of the Civil Code.

According to Article 209, the owner owns, uses and disposes of property at his own discretion.

This is the most complete of real rights.

For example, a tenant exercises fewer rights and cannot sell, mortgage or inherit an apartment.

In addition to the general norms of the Civil Code, which are directly related to the issue under consideration, it is also regulated specifically - Chapter 18. GK. Part 1 of Article 288 specifies: proprietary rights are exercised in accordance with the purpose of the apartment. That is, you cannot open a nightclub or burn it down, but you can only use it for living. This is also indicated by the 3rd part of Article 288: no industrial production.

As for renting out under a contract, this does not contradict the purpose if the tenant uses it for living (Part 2). The law also requires the execution of an agreement and payment of tax . Chapter 5 of the Housing Code contains similar provisions.

210th Art. The Civil Code adds that the owner bears the burden of maintaining the property :

  1. Pays taxes;
  2. communal payments;
  3. carries out repairs;
  4. compensates for damage caused (for example, to neighbors after flooding).

Unless otherwise provided by law or contract. Let’s say, a property insurance contract, which you can use to protect yourself in case of accidental loss of an apartment, for example, in a fire (Article 211)

Terms and cost of apartment privatization

Typically, the period for transferring housing into private ownership is about two months - this is the time when the application is considered by the housing management department of the municipal district administration.

You can find out more about the procedure for registering real estate here.

But it is worth considering that you will need some more time to collect documents.

You can speed up the process if you entrust the preparation of documents to a lawyer specializing in such cases.

Officially, the Russian Federation still has a free initial housing privatization program, which means that the procedure itself will not cost you anything.

This program was extended by the government until March 1, 2017 , since today about 20% of residential real estate allocated for transfer to private ownership remains non-privatized. But expenses during registration are still possible: this is the payment of state fees when ordering certificates and extracts .

Rights of the owner of privatized housing

Unlike tenants of municipal housing, the owner of a privatized apartment receives the right to a number of powers at once :

  • he can sell the apartment privatized by him, rent it out under a rental agreement, and live in it;
  • the owner has the right to register (register) or discharge people to/from his apartment at his own discretion;
  • a privatized apartment can be the object of collateral when receiving a loan or credit;
  • The owner cannot be evicted from privatized housing for debts; he will not be taken away by a court decision;
  • a privately owned apartment can be redeveloped;
  • upon the death of the owner of a privatized apartment, it or its shares do not pass to the state, but are inherited by the relatives of the deceased or by persons specified in the will.

Here you can learn more about the procedure for registering an inheritance.

Who has the right to housing?

In addition to the Civil Code, the right to living space in a privatized apartment is regulated by the Housing Code. The owner has the right to live together with family members (Articles 30 and 31 of the Housing Code).

From the 2nd part it is clear that the owner can dispose of housing under contracts : rent, lease or for free use. At the end of the contract, he can evict these persons, and no one will interfere with him.

Sale of a privatized apartment

You can sell a privatized apartment either entirely or its shares.

Preference in the sale of shares is given to the other participants in the privatization, but if they do not agree to the purchase within a month, the share can be sold to a third party.

When completing the transaction, a purchase and sale agreement is concluded, the buyer is given a registration certificate for the apartment, a house register, and the certificate of ownership is reissued.

Rights of shareholders in a privatized apartment

Common property can be joint (without allocation of shares) and shared - with allocation (244th Civil Code). Unless otherwise indicated, it is implied to be shared (3rd part of Art. 244)

General joint property, for example of spouses, can be allocated by agreement or by the court (5th part). In this case, we are talking about a share in the right, and then you can demand the allocation of a share in kind (Article 252). In general, Chapter 16 of the Civil Code is devoted to these issues.

Comparing the rights of the owner of an entire apartment with the rights of a shareholder, we can say that in addition to the burden of property in general (210th), he also bears the burden of taking into account the interests of other shareholders .

From Article 246, in particular, it follows that the disposal of common property is possible only by agreement of all participants.

We can talk about a pledge, a rental agreement, or a sale.

And if, for example, an apartment is rented, then in addition to the general consent to conclude an agreement, the payment will be divided between the owners in proportion to their shares (Article 248).

In case of sale of a share under an agreement or its exchange , Art. 250. it is established that the owner is obliged to first offer his share at the same price to other owners . There is only one exception to this rule - sale at public auction . If this is a gratuitous transaction (donation or will), other shareholders naturally lose their right, because the donor or testator is not indifferent to whom to transfer the apartment for free.

Being the owner of a share in the right to an apartment, the shareholder is also an even more fractional owner (shareholder) in the right to common house property (289th Civil Code).

Privatization of a share in an apartment

Since the procedure requires the consent of all potential apartment owners, the question of how to privatize a share in an apartment has only one answer: this is impossible without privatizing all other shares !

The procedure provides for the transfer of the entire object into private ownership, but with the possibility of allocating shares to individual owners.

The size of these shares may be equal, or may be different in size if, for example, one of the registered residents refused to participate in privatization and transferred his share to one of the participants.

Also, shares of a privatized apartment can be donated, transferred or sold to other participants, thereby increasing their share.

How is shared ownership formed?

The distribution of shares is carried out as a percentage between the ownership participants. This distribution must be formalized by law and have the status of “inviolable” for other third parties. In other words, shared ownership is a material value that has several owners. Shares can be established by joint agreement between the participants, or in the event of an unresolved agreement, rights are established in court. Quantitative division of shares in an apartment will help determine the size of the property, for example, in the case of its sale, donation of one’s part, or withdrawal from inheritance rights. In cases where an equal division is impossible for some reason, for example, the area of ​​the apartment is too small, the participant who received the smallest share has the right to count on compensation payments from the remaining applicants.

When one of the participants decides to sell his share, he is legally obliged to notify in writing all participants in the shares about his plans to transfer the rights of his share to other participants.

The notification document must contain all the terms and conditions of the apartment sale transaction. The owners must provide their response to the agreement or refusal to sell one of the shares within a month.

The law primarily protects the wishes of the majority of owners. And therefore, if the majority of owners refuse, the share in the apartment being sold may be seized.

It is also recommended that the seller of his share first of all offer to buy it out to the remaining shareholders. Selling a share of an apartment is quite a troublesome and expensive task. For proper registration, you need to contact an experienced lawyer, notary and area value appraiser. It is worth assessing the conditions and cost offered by the buyer. Having compared all the conditions and chosen the most profitable one for you, you need to legally formalize the documents for the purchase and sale of your property.

Frequently asked questions about apartment privatization

What are the disadvantages of privatization?

Before privatizing an apartment, it is worth considering certain disadvantages of this procedure.

So, the disadvantages of privatization :

  • the need to pay property tax . It is still a very small amount, calculated from the book value of BTI, but it may increase;
  • increase in rent , since you take part in the maintenance and repair of common building structures;
  • In the absence of a will, after the death of the owner of the privatized apartment, all heirs by law will have the right of inheritance . If you want to avoid such a situation, then you must definitely write a will, and this is not a very pleasant process psychologically. Or write a deed of gift. Inheritance issues also usually cause discord in the family. If the apartment is municipal, then you can, as a responsible tenant, simply register (register) your “preferred” heir, and after your departure he will automatically receive the right of residence and become a responsible tenant;
  • in case of demolition of a house, an apartment of equivalent area, not cost, is provided. Moreover, it may not be in the best area. The law specifies only the locality, but does not specify the area in which similar housing should be provided;
  • if the demolition is planned by the municipal authorities, and you disagree with the housing provided to you, then you will simply be evicted by court;
  • monetary compensation for demolition cannot be provided, since the state cannot buy this housing. And, if you do not particularly need the apartment that will be provided to you in return, then after the expiration of the free privatization period, you will no longer be able to sell it after privatization.

What tax is paid on a privatized apartment?

After the apartment has been privatized, you should know exactly how to pay the property tax, now called property tax.

Taxation is applied if a citizen has acquired ownership of such housing (Article 401 of the Tax Code):

  • room;
  • apartment;
  • a private house.

The tax on a privatized apartment is calculated quite simply: you need to multiply the cost of the apartment that came into the possession of the owner through privatization by the current rate in the region .

The tax is considered local, and therefore regional authorities independently set the amount of such rates, and accordingly, the tax amounts vary.

Article 406 of the Tax Code sets the maximum rate - 0.1% of the cost of the apartment . The base for the tax on a privatized apartment is the cost of housing - previously inventory, cadastral in 2021.

It is worth noting that the first is several times lower than the cadastral assessment, since the inventory assessment carried out by the BTI takes into account only the condition of the housing, and not its attractiveness from the point of view of living in it, its location, and the surrounding infrastructure.

It is for the purpose of objective taxation of citizens’ housing that a real estate tax began to operate in 2015, including for recently privatized apartments.

From the beginning of the year, the tax base will be determined not by the BTI, but by Rosreestr, where all information about the apartments of citizens and legal entities has been entered and will continue to be entered.

Today, more than 20 regions of the country are using a new method for calculating the amount of property tax for a privatized apartment, and by 2020 it will be applied everywhere. During this transition period, a reduction factor will be applied in tax calculations.

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