Legal status of persons who are not owners of residential premises

Definition of shared ownership

The civil legislation of the Russian Federation defines shared ownership of property as common property, the shares of the owners of which are determined by agreement or in court.

If the shares are not established by agreement and their determination is impossible on a legal basis, they are considered equal.

Participants in shared ownership have the right to dispose of their part of the property at their own discretion. The owner can pledge his share, donate it, sell it, bequeath it, or otherwise dispose of it.

Read about common ownership of an apartment.

Legislation on the procedure for using shared ownership of residential premises

The role of the main regulatory document in establishing the rules for the use of common property in shared ownership is assigned.

In some cases, the role of a normative document may also be assigned.

determines which common property is shared (any property that belongs to two or more persons). Art. 245 – 250 regulate the exercise of the right to own, use and dispose of property, pay taxes and fees, establish the pre-emptive right to purchase an alienated share to an outsider and other issues related to the ownership and use of common shared property.

Code regulates the procedure for dividing shared property and separating shares from it.

and the norms of the RF IC determine the procedure for registering minor children at the place of residence of their parents, regardless of the form of ownership of the occupied living space.

Right of possession, use and disposal

The concepts of ownership, possession, use and disposal have something in common, but at the same time they have differences.

Ownership is the ability to use property in accordance with the wishes of the owner. The only restrictions are the rules of law. Only the owner can enter into transactions with this property. Family members have rights to own and use housing. Unlike property rights, these rights provide the opportunity to live in an apartment, and transactions with it or redevelopment of the premises can only be made with the consent of the owner.

In addition to the right to use residential premises, family members of the owner are obliged to maintain housing together with him and ensure its safety.

Tenants also have the right to own and dispose of housing. The basis for the emergence of such rights is the rental agreement.

In what cases is it necessary to determine the procedure for using residential premises?

Shares in residential premises, as a rule, are owned by close relatives or former spouses who are forced to live in a common area after a divorce.

The need to determine the procedure for using an apartment that is in shared ownership arises when the property of spouses is divided or the property is inherited by several heirs.

The rules must be set by homeowners themselves. For this purpose, they enter into a written agreement (ideally notarized), in which they formulate the rules governing their cohabitation in a residential area.

If this is not possible, the resolution of such disputes falls within the competence of the court.

Determining the procedure for using an apartment in shared ownership may be necessary if the owner is unable to obtain use and ownership of a part of the property commensurate with his share.

In accordance with this case, he has the right to demand compensation from other co-owners, and without reaching agreement on this issue, go to court with a statement of claim.

Use of housing by other citizens

The law primarily includes household members of the owner or tenant as such citizens. The emergence of the right to use residential premises for family members is due to the presence of family ties and living together in the same place with the owner or tenant.

Household members of the owner or tenant have the right to live in residential premises under the same conditions as its owner. At the same time, they can protect their rights both from the actions of other citizens and the owner himself. That is, the owner cannot simply throw his family members out onto the street.

In addition to rights, family members of the homeowner also have responsibilities for paying utility bills. So, for example, upon moving in, the owner can enter into an agreement with a member of his family on shared participation in the payment of utilities and collect the amounts due in court if necessary.

In life, very often you have to face the problem of determining the fact of cohabitation. Thus, one person may have a dozen relatives, but not all of them will be recognized as living together. Therefore, in order to avoid disputes on these issues, the fact of residence is determined by registration at the place of residence. This is not the best option, but nothing more convenient has been invented at the moment.

General rules for determining the procedure for using residential premises

An appeal to the court with a request to determine the rules for the use of housing that is in shared ownership does not always end with the allocation of the participant’s share in kind. The court has the right to refuse the plaintiff if such actions are not feasible without causing disproportionate damage to property.

However, the impossibility of allocating a share in property or dividing it in kind does not exclude the right of a participant in common shared ownership to make a demand to determine the procedure for using this property, if it is not established by the agreement of the owners.

In such disputes, the court takes into account:

established rules for the use of residential premises, which may not fully correspond to the legal shares in the right to common property;
real possibility of sharing;
the degree of need for this property of each of the owners.

If the allocation of a share is possible, then the plaintiff is given ownership of an isolated territory in the residential premises, which corresponds to his share in the property. He loses the right to the rest of the common property.

When determining the procedure, each of the owners receives for use a specific part of the residential premises in proportion to the share while maintaining the right of common ownership.

It is easier to divide a private house in kind; it is much more difficult to allocate a share in an apartment that has been privatized for several owners.

Types of property rights to real estate and their regulation

Types of property rights:

Includes the following types of rights:

The right of lifelong inheritable ownership.

Includes the following types of rights:

The right of permanent unlimited use.

Includes the following types of rights:

Right of fixed-term use (lease).

Includes the following types of rights:

The right of limited use (easement).
The right of economic management.
Right of operational management.
The right of trust management (trust, trust management).

Ownership means the right to actual possession of some object.

The right of use is the right to extract useful consumer properties from an object.

The right of inheritance is the right to transfer by inheritance (by will or by law).

The right of disposal is the right to change the legal status of an object, the right to alienate this object by selling it, donating it, bartering it, etc.

- means that its subject can use the property in his own interests and can perform the following types of operations with it:

- alienate (sell, give);

— perform barter operations with the object;

— transfer ownership and use rights to other persons (for example, rent);

— transfer an object by inheritance;

— present the object as collateral (for example, for mortgage lending secured by loan repayment).

2. General: common joint property and common shared property.

Individual property

- a right that is owned by one person. This type of right can be acquired by one unmarried person or one of the married spouses, subject to the appropriate conditions in the marriage contract.

Common joint property

– a right in which several persons jointly own, use and dispose of a property, and decisions related to this property are made jointly. In this case, the share of each ownership participant is not allocated. This type of right can be acquired: by one family during the privatization of housing, by spouses in marriage.

Common shared ownership

- this is a right, the owners of which are several persons, and at the same time the share of each participant in the property is allocated. Each participant in common shared ownership can, at his own discretion, exercise all his rights given to him as the owner (rent, donate, inherit, etc.); but in case of sale of a share, consent is required, or a notarized waiver of the preemptive right to purchase the share being sold from other co-owners.

An example of common ownership is a condominium.

Condominium

– a complex of real estate, including: a residential building, a plot of land underneath it within established boundaries, as well as auxiliary facilities and communications.

The condominium is owned by a homeowners association - HOA.

HOA

– a non-profit organization that has the status of a legal entity (presence of a seal, balance sheet, current account), and unites owners of multi-apartment residential buildings for joint effective management of real estate.

The HOA is created and operates in accordance with the Housing Code of the Russian Federation (2005).

For HOA members, their own housing is in personal ownership, and the land plot, entrance, attic, basement and other premises are in common shared ownership. In this case, the share in the right to common property is determined in proportion to personal property.

The right of lifelong inheritable ownership.

This right is typical for land relations and, in accordance with the Land Code of the Russian Federation (which came into force in 2002), is subject to re-registration for ownership or lease rights.

This right means that its subject, during his life, can use the land plot in his own interests, rent it out and pass it on by inheritance, but he cannot donate it or sell it (that is, there are no alienation transactions). If the subject does not have an heir, then after his death the object passes to the benefit of the state.

The right of permanent unlimited use.

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This right is typical for land relations and, in accordance with the Land Code of the Russian Federation (which came into force in 2002), is subject to re-registration for ownership or lease rights.

This right means that its subject can use the land plot in his own interests for an unlimited time (possibly throughout his entire life), but cannot sell it or inherit it (that is, there are no alienation transactions and transfer of rights by inheritance).

Right of fixed-term use (lease) —

- this right means that its subject (owner) can use the property in his own interests only for a limited time established by the lease agreement.

Depending on the rental period:

— short-term – up to 1 year (not subject to state registration);

– medium-term – from 1 year to 5 years (subject to state registration);

– long-term – more than 5 years (subject to state registration).

Right of limited use (easement) –

- this right means granting another person the right to limited use of someone else’s property (usually the right of passage or passage through someone else’s land plot).

This right is an encumbrance on the property, which is indicated in all title documents.

The right of easement can be established in court, and the owner of the object encumbered by the easement can be paid compensation.

—

the right that is granted by the owner of the property (the state) to federal and municipal unitary enterprises in relation to certain property transferred to them by the owner at the time of establishment (registration) of the specified enterprise, for the use of this property for economic purposes. These enterprises have the right to own, use and dispose of property (including: sell, donate, pledge); restrictions on transactions with property transferred to enterprises are, as a rule, established within the framework of the constituent documents.

Right of operational management -

- a right that is granted by the owner of property (the state) to federal and municipal enterprises and institutions in relation to certain property. These enterprises and institutions have the right to dispose of property only with the direct instruction (disposition) of the owner, as well as to use this property for the purposes specified by the owner.

The right of trust management (trust, trust management) -

- this is the right that is granted by the owner of the property (trustor) of a trust company (law firm, notary office, consulting firm, management company, anti-crisis company, etc.) in relation to certain property on the basis of a trust agreement (trust management agreement). The trust company has the right to manage and dispose of property only in the interests of the owner.

How to establish the procedure for using a municipal apartment

The legislation of the Russian Federation does not contain standards for determining the procedure for using a municipal apartment by tenants and does not establish what the procedure for using social housing is . The court can establish such a procedure only for property that is in the personal property of citizens.

The requirement to transfer for use premises in a municipal apartment essentially implies a change in the terms of the social tenancy agreement.

establishes the principle of equality of duties and rights of the tenant and his family members (former and present). From this it follows that each co-tenant has equal rights to use all residential premises without exception.

Taking into account these requirements, it is impossible to determine the actual conditions and procedure for using municipal housing legally, since this will lead to changing the terms of the social tenancy agreement through the conclusion of separate agreements for parts of a single residential premises.

Use of housing by minors

Children are a special category of citizens whose rights are protected by law very carefully. Protecting the right to use housing is no exception.

One of the guarantees for the implementation of this right is the unhindered registration of the child at the place of residence of the parents. That is, if the written consent of the tenant and members of his family or the owner is required for moving into and subsequent registration of an ordinary citizen’s residential premises, then such consent is not required when moving children to their parents. This means that the child is registered in the residential premises, even if the owner or tenant is against such an action.

There is also a special category of children who, if they register in an apartment, automatically block any actions of the owner or tenant.

We are talking about children for whom guardianship has been established. The essence of the problem is that it is almost impossible to discharge such a child. Moreover, the main responsibility of his guardian is to live together with such a child, which means that, in addition to the child, the owner or tenant will also have to endure his guardian.

Rules for the use of land in shared ownership

If it is impossible to make a real division of the land plot, and the co-owners could not agree among themselves, the courts, when establishing the procedure for using the land plot that is in common ownership, take into account, first of all, its status.

If the land is owned by two or more persons, the norm for establishing rules for its use according to the ratio of shares is applied.

If the disputed land plot is in operation, the procedure for its use is determined taking into account the shares in the ownership of the building located on this plot.

The court can also establish an order, taking into account the joint use of the land plot by the owners of the house in practice - the so-called “established order of use”. This norm is regulated.

The concept of “established procedure for use” implies a voluntary agreement of the parties to carry out such actions, concluded orally or in writing.

Establishing the procedure for using residential premises

Rules for the use of residential premises that are in shared ownership, for example, an apartment, are established on the basis of the provisions. Parts of the apartment for any citizen are distributed by agreement of the parties, or by court decision.

The right to use an apartment in shared ownership is also determined. Housing is divided equally if there are no legal reasons for a clear allocation of shares.

When allocating a share in residential real estate to a participant in shared ownership, carried out in court, the following nuances are taken into account:

the owner’s contribution to the improvement of the home;
whether the share has been allocated to one of the owners in full. Otherwise, he receives the right to receive compensation for that part of the area by which his share was reduced;
If the allocation of a share in the common property to one of the owners is not realized, the remaining participants must pay him monetary compensation equal to the lost property.

When establishing the procedure for using residential premises, the court decision indicates which of the rooms is assigned to which of the owners for use.
The court leaves the common property - bathroom, kitchen, corridor, toilet and auxiliary premises - in joint use.

How is the agreement concluded and what should it contain?

The simplest and most effective way to establish the procedure for using an apartment that is in shared ownership is an agreement on the joint use of housing.

The legislative norms of the Russian Federation do not require a written form of agreement between participants in shared ownership. However, so that no one tries to infringe on the rights of others, the agreement should be concluded in writing and notarized.

This document must state:

subject of the contract;
rules for using residential premises and paying for housing and communal services;
duties of the parties;
responsibility for failure to fulfill agreements reached;
settlement of disputes.

The agreement is sealed with the signatures of the participants. It should be accompanied by copies of significant documents and an act of acceptance of the use of rooms in the apartment.

How to establish the procedure for use in court

If an agreement with the co-owners is not reached, the procedure for using residential real estate can be established by filing a claim in court (clause 1 of Article 247 of the Civil Code of the Russian Federation;).

In addition to the claim, you must submit to the court a package of documents necessary to resolve the case.

Where to file a claim

The statement of claim is submitted to the magistrate or to the district court at the location of the shared ownership ().

If only a request is made to determine the procedure for using housing, then the case is within the jurisdiction of the magistrate’s court ().

If other non-property claims are presented (determining the order of expenses for common property, moving into residential premises, etc.), the case is considered by the district court.

The same authority will consider a claim of a property nature, for example, for recognition of ownership of a share if its price exceeds 50 thousand rubles.

What documents need to be provided

Based on the requirements, the statement of claim must contain:

information about the name of the court to which the claim is filed;
Full name, place of residence of the plaintiff and defendant, as well as, if desired, email and contact numbers;
information about a violation or threat of violation of the applicant’s rights;
the plaintiff's claims, the circumstances on which they are based, evidence.

The application also contains a list of attached documents, which, according to, include:
copies of the claim according to the number of defendants and third parties;
power of attorney or other document certifying the authority of the representative;
documents confirming the circumstances on which the claims are based, and their copies according to the number of defendants and third parties;
receipt of payment of state duty.

How does a claim proceed in court?

According to , the period for consideration of civil cases, including on the issue of establishing the procedure for using housing, is two months, and for magistrates’ courts - one month.

In practice, these deadlines are significantly delayed due to the heavy workload of civil courts. If an examination is required, the period for consideration of the case may also increase.

During the hearing, the court analyzes documentary evidence and hears arguments from the parties. After assessing the circumstances of the case, the court makes a decision regarding the merits of the claim.

Factors taken into account by the court

First of all, the court will take into account the rules for using the premises that existed before the dispute arose and may suggest returning to them if they did not infringe on anyone’s rights.

In other cases, when establishing, for example, the right to use the spouses’ apartment, the court will proceed from:

layout of the premises (is it possible to isolate the owners from each other);
the size of the share of each owner. This is not a decisive factor, because the room allocated to the owner for sole use may be disproportionate to his official share;
number of separate and walk-through rooms;
the presence or absence of family ties between the owners and the degree of their proximity;
the owners have other real estate;
the owner's need for specific real estate. Thus, a woman with a child can claim a larger area than a single person.

Use and ownership of property

Ownership

this is the ability to actually possess property, so to speak, physical “dominion” over it. The right of possession in relation to tenants allows them, firstly, to determine various conditions of access to the property and, if necessary, to physically influence it. For example, moving rental property in space (provided that it is movable).

This important circumstance allows the tenant to use the property more rationally. Depending on current needs, in the right place and at the right time, the tenant can use the leased property at his discretion without downtime. This is confirmed by established judicial practice.

Right to use property

This is the right to extract useful properties from property. Regarding rental relations, the use of property must be carried out in accordance with the terms of the concluded agreement. So according to paragraph 1 of Art. 615 of the Civil Code of the Russian Federation The tenant is obliged to use the leased property in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, in accordance with the purpose of the property.

Please note that the use of the leased property is the main purpose of the entire lease agreement.

It is for the tenant's ability to use the leased property that rent is charged. Ownership of property here is, oddly enough, secondary; the main right when renting is, of course, the ability to use the property. The key word here is opportunity. In reality, the tenant may not use the property; it is important that he has such an opportunity. Whether he realizes his opportunity or not is his right. This is a very important point.

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The tenant is essentially not obliged to pay the lessor the rent stipulated by the contract for the period during which he is actually deprived of the opportunity to use the leased property. The tenant has the right to demand from the lessor the return of funds (rent payments) paid by him during this period.

This legal position is confirmed by judicial practice.

Right to dispose of property

The ability provided by law to determine the legal fate of a thing. The order is carried out through the execution of legal acts, i.e. actions aimed at achieving legal consequences. When disposing of a thing, the owner sells it, donates it, leases it, etc.

Sometimes the right to dispose of property may belong to the non-owner. Thus, a tenant (tenant), under certain conditions, can sublease (sublease) an item received under a lease (lease) agreement (Article 615 of the Civil Code of the Russian Federation). But the non-owner is never given the right to dispose of the thing in full.

On the allocation of a share in residential premises

When considering the issue of establishing the parameters of the ownership share, if it occurs in court, the following factors are taken into account:

age;
presence or absence of children;
professional activity;
disability and so on.

Allocation of the owner's share in an apartment is fraught with great difficulties, especially if the living space is small and there are many applicants for it. It is difficult to identify each person's share in kind in this case. It is much easier to allocate the owner’s share in a private home ownership.

Find out more about allocating a share in an apartment.

How to act in case of violation of the rules of use of residential premises

If the co-owners entered into an agreement to determine the procedure for using real estate (apartment or house) or the rules were established by a court decision, problems in the use of shared property may still arise.

Any of the owners can file a claim for non-obstruction in the use of residential premises and for moving into an apartment or house if:

agreements reached are violated;
the agreement on joint activities and operation of real estate is not observed;
a court order is not followed;
access to the house or apartment is limited or terminated.

Judicial practice on establishing rules for the use of residential premises

Judicial practice in cases establishing rules for the use of residential real estate that is in shared ownership is based on the established procedure for using the property. It may not correspond exactly to the shares in the common property right.

The court, as a rule, takes into account the need of each of the co-owners for property and the actual possibility of sharing it.

In some cases, courts refuse to satisfy claims for the most common reasons:

inability to share housing with other property participants;
discrepancy between the premises area requirements and the size of the owner’s share;
the plaintiff's lack of need for housing.