How to divide a plot of land into two if there is a house on the plot?

Problems of joint ownership of a house and land

The situation when several owners own a house and a plot is not simple in itself. Especially when the co-owners are in hostile relationships and often simply cannot come to agreements on everyday issues.

However, since the real estate remains in shared ownership, they often need to make some general decisions regarding:

registration of new residents;
carrying out repair activities;
reconstruction of technical networks.

In complex relationships, this is quite difficult to do, or even impossible, and most owners try to allocate their share by dividing property.

This can be done by separating a part of the house and the territory underneath it, in other words, through real division.

Abstract: The article is interdisciplinary in nature, since the subject of the study is regulated by the norms of civil, housing and urban planning law. It is devoted to the current issue of the legal status of “houses for two owners”. The article examines the regulation of this issue in legislation and makes proposals for its improvement. The concept of “house for two owners” has no legal definition, and indeed no definition at all. It is a residential building of two parts with a single adjacent wall, but separate exits to the street.

The civil rights of these “owners” themselves may be violated when registering their part of the house and their land plot. The Office of the Federal Service for State Registration, Cadastre and Cartography sometimes designates houses for two owners - an apartment building. Thus, the land plot of the “apartment” will be common shared property.  Let's analyze the concepts and their definitions: The Housing Code of the Russian Federation, in Part 1 of Article 16, distinguishes the types of residential premises: residential building, part of a residential building, apartment, part of an apartment and room. In the Civil Code we encounter the concept of “part of a residential building” only in Part II in the purchase and sale section, but Chapter 18 “ownership and other proprietary rights to residential premises” does not contain this term. In the Town Planning Code there is no concept of “part of a residential building” at all, but we encounter a different concept of “residential building of blocked development”.

A block house is a residential building in the form of an apartment building, where each apartment has its own exit to the street. But this concept is not enshrined in the Housing Code of the Russian Federation and the Civil Code of the Russian Federation. From the system analysis of Art. Art. 289, 290 of the Civil Code of the Russian Federation and Art. Art. 16, 36 of the Housing Code of the Russian Federation it follows that an apartment building is a house consisting of two or more apartments, as well as common premises included in the common property, which are recognized as the common shared property of the co-owners of the apartments, the land plot on which this house is located with landscaping elements and improvement 1. Also, paragraph 6 of the Government of the Russian Federation No. 47 contains the concept of an apartment building: an apartment building is a set of two or more apartments that have independent access either to a land plot adjacent to a residential building or to common areas in such a building.

An apartment building contains elements of the common property of the owners of premises in such a building in accordance with housing legislation2. Noting the phrase from the definition “independent exits or to a land plot adjacent to a residential building,” we note that this feature refers to a “house for two owners,” as well as to a “blocked building.” Thus, perhaps one of the problems in registering “houses for two owners” and “blocked development houses” as apartment buildings is the presence of similar features with an apartment building. Due to incorrect assignment and registration of ownership of a residential building and part of a residential building, citizens do not have the opportunity to acquire and register rights to a land plot.

So, for example, A. filed a lawsuit against the administration of Vladivostok, the Office of the Federal Service for State Registration of Cadastre and Cartography in the Primorsky Territory to change the status of the residential premises and recognize ownership, indicating that she is the owner of the apartment. In fact, the above property is part of a one-story residential building with a private plot for two owners. The second part of the residential building belongs to M.L.A. The land plot on which the residential building is located is divided in kind. Each part of this residential building has separate entrances, a separate water connection, and a separate sewerage system.

The house does not have common utilities and common areas. The specified residential building does not meet the characteristics of a multi-apartment residential building, and the residential premises belonging to A. are part of a residential building. A. intends to register the actual land plot used under part of the residential building. However, due to the fact that in the ownership documents part of the residential building is called an apartment, it is impossible, in accordance with current legislation, to acquire and register rights to a land plot.

She asked the court to recognize the apartment in a residential building, and to recognize her ownership of part of the residential building. The panel of judges agreed with the conclusions of the court of first instance that the residential building does not meet the characteristics of an apartment building, since the apartment in the above-mentioned building is already part residential building and belongs to M.L.A. Considering that the residential premises are an individually defined building, with premises for auxiliary use, to satisfy citizens’ household and other needs associated with living in such a building, and also that the house does not have common utility networks and common areas, the court reasonably came to the conclusion that the specified residential building does not meet the characteristics of an apartment building, and the residential premises belonging to the plaintiff are part of a residential building3.

To summarize, we note that it is necessary to introduce the concept of “house for two owners” into the Civil Code, as well as the introduction of a legal definition of part of a residential building. This is due to the high prevalence of this type of residential premises in rural areas.

Thus, I propose the introduction of Article 289.1 “Part of a residential building as an object of ownership” into the Civil Code with the following content: “A house for two owners contains two parts of a residential building with an adjacent wall between them, as well as separate exits to the land plot adjacent to the residential building and without common areas. The owner of a part of a residential building in a house for two owners has the right to register a plot of land for running a personal subsidiary plot.”

Ivolzhatova Maria Viktorovna, Ivanova Natalia Alexandrovna

Tags: VAT, owner

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What is a real partition?

Real division (allocation of shares) is the transfer of parts of the home ownership into the ownership of each participant in the common shared property in proportion to his share.

Division entails the termination of common property for all its participants. The allocation of a share of a house is characterized by the fact that one or more owners leave, while for others the relations of common ownership are preserved.

The division of the house begins with determining the size of the shares and the people who have rights to the share. In case of divorce, the owners of the shares will be the spouses, and in case of inheritance, accordingly, the heirs.

The real division of the house and land is permissible and possible only when legal and technical possibilities exist. Real estate objects, including a residential building and a land plot, can be classified as both divisible and indivisible things.

House division

A properly executed division of a house in accordance with existing legislation will require a mandatory description of all residential premises in it, as well as the determination of the specific boundaries of the plots that will be formed after the division process, in the mutual opinion of all owners.

Obtaining a cadastral extract for a land plot.
Obtaining a cadastral passport for the house.
Preparation of technical plans, delivery and receipt of cadastral passports for parts of the house.
Obtaining certificates of ownership of parts of the house.
Division of a land plot: obtaining cadastral passports for demarcated plots.
Obtaining certificates of ownership of the formed land plots.
State duties.

Documents required to obtain permission for the reconstruction of an individual residential building:

Title documents for the land plot (notarized copy of the certificate).
Title documents for the house (notarized copy of the certificate).
Technical plan or cadastral passport with an explanation of the house (if available).
Power of attorney to submit and receive documents.
Architectural design of the planned house (if available).

How to divide a house? And what can be shared and what cannot?

The actual possibility of dividing a house and land does not always coincide with the legal possibilities. The divisibility of a property, from a legal point of view, has an independent meaning and does not necessarily coincide with the real possibility of dividing walls and rooms.

All existing real estate objects are recognized as physically divisible, but they are legally divisible only if it is possible to divide them into parts in such a way that each part maintains homogeneity, that is, remains “residential” for its intended purpose and so that its use does not violate the rights of others copyright holders and users.

In other words, when dividing a house, each owner must have his own entrance, kitchen, bathroom, etc.

For the correct division of real estate, the law introduced the concept of Signs of residential premises:

appointment;
suitability for habitation;
isolation;
belonging to the category of immovable objects.

Of course, the last of the signs is the main one, however, the absence of any of the listed signs gives grounds to consider the premises non-residential.

It is unacceptable to divide a house as a result of which an independent part is formed that is not intended for living (for example, a built-in garage or just a kitchen).

How to divide a plot of land with a house into two parts and register it separately

Determine whether the actual division of the existing site is possible. To do this, you should find out the minimum standards for land plots in force in a given municipality. If the plot meets the divisibility criteria and other requirements established for the division, then you can move on.
The next step will be to reach an agreement on the division between the co-owners. If there is mutual agreement, you can proceed to land surveying to create two new objects and their further registration. If there is no agreement, the dispute will first have to be resolved in court. Unfortunately, such disputes are quite complex and can take quite a long time to resolve. Only after the decision has entered into force can one begin to formalize rights under the conditions determined by the court.

Firstly, the divided areas must meet the specified minimum (maximum) dimensions. These sizes are usually determined by local town planning regulations and may vary in different municipalities. If the plots obtained as a result of division do not meet this requirement, then its cadastral registration may be rightfully refused. This is stated in paragraph 3 of Art. 27 Federal Law “On the State Real Estate Cadastre”.
Secondly, the formation of new plots cannot lead to problems with the use, location of real estate on them, or the rational use of the land itself. You cannot divide a plot of land with a house if this entails a violation of the rules and regulations in force in the field of land use.
Thirdly, the boundaries of the received plots should not cross the boundaries of forest parks, settlements, forest districts, and municipalities. Also striped, broken, or wedging of their borders is not allowed.
Fourth, both new sites must retain the same type of land use permitted for the old site.

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Sequence (stages) of the section

Before starting the procedure, you should understand whether there is a possibility of its fragmentation. For these purposes, it is necessary to carry out an examination that will confirm or not confirm these possibilities.

The examination will also answer another question – whether the structure meets absolutely all technological conditions. In addition, in the final decision, at the request of the co-owners, the specialist has the right to add information about the actual price, redevelopment alternatives available for this property, and the costs of these types of work.

After approval of the examination, the owners are required to obtain permission for redevelopment. This can be done at local governments.

Owners will then be able to apply one of the alternatives:

Allocation of shares;
Dividing the house into 2 buildings.

This is only possible when divided into separate rooms with a separate entrance.

Division of land under the house

When dividing home ownership, the question of the divisibility of the land plot inevitably arises.

The legal (legal) meaning of the criterion of divisibility of a land plot means that a plot is recognized as divisible if, as a result of the division, independent plots are formed, the permitted use of which can be carried out without transferring it to land of a different category and the requirement for the minimum size of a land plot established by legal acts of local government bodies (Article 11.2; 11.4; Clause 1, Article 33 of the Land Code of the Russian Federation; Article 1182 of the Civil Code of the Russian Federation).

In other words, the possibility of its actual division directly depends on the area of the land plot. For example, if a land plot with permitted use for individual housing construction (IHC) has an area of 6 (six) acres, then theoretically it can be divided into two plots of 3 acres each. Division of such a land plot into a larger number of parts is legally unacceptable. The exception is cases of division of land plots on the basis of judicial acts.

What to do if it is impossible to share a plot with a house?

If land plots do not meet the above requirements, then their division is not possible. It is important to understand that we are not talking about actual, but about legal possibility.

In life, you can divide a plot of land with a house into at least a thousand separate pieces, but from a legal point of view, it will be impossible to use them in a legal way.

Most often, the need to divide land arises when dividing a house located on it.

The absence of the possibility of dividing the land does not prevent the division of the house. It’s just that in this case the land itself will remain in the common ownership of several persons. And the co-owners will need to determine the procedure for its use.

If this cannot be done by voluntary agreement, then this issue will have to be resolved through the courts.

How are private houses divided?

If it is not a semi-detached building, in practice it is quite rare to be able to divide the house so that all parties are happy.

The law provides two methods:

Settlement agreement

This is the most cost-effective (both in terms of money and time) option for owners. In this case, the house does not lose its position as a whole object, but is simply re-registered as shared ownership.

In the case of a peace agreement, everything is done on the basis of oral consent or a written agreement between the owners. It is more correct to choose the latter and have the contract notarized, which can eliminate all disputes in the future.

The contract stipulates the following points:

ongoing maintenance costs;
communal payments;
procedure for using the common area.

When deciding on a peace treaty, it is important to consider how the division of the territory will be carried out. However, if everything is formalized as joint residence, this section is optional.

Even in this case, the property is divided into two premises. In certain situations, redesign will be necessary. Any redevelopment must be legalized and a corresponding specialist report must be drawn up.