Judicial practice on forced purchase of shares of real estate (apartments, houses, land plots)

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Since an apartment is a divisible piece of real estate, then, in accordance with the provisions of the Law, it is impossible to name the smallest share that there may be. Very small shares usually appear when several relatives inherit an inheritance or when concluding a donation agreement for housing shares. But are the concepts of “insignificant” and “small in area” shares identical? This, as well as how to recognize the share as insignificant, will be discussed in our article.

What is a minor share

In modern Russian legislation, the concept of “minor share” is not only used, but is also the basis for the forced purchase of part of a residential premises. However, the size of such a share is not defined in the current regulations.

Thus, the legislator points out the obligation of the courts, when deciding on the insignificance of the property area, to consider each specific case individually.

Moreover, it is not only the area that influences the recognition of a share as insignificant. So, it may be even less than the living standards per person in a particular region.

However, under certain circumstances, it cannot be considered insignificant and subject to compulsory redemption.

But it is precisely the desire of the owner of most of the housing to buy it out completely that is the reason for turning to the justice authorities. Indeed, such a possibility is provided for by the norm of Art. 252 of the Civil Code of the Russian Federation.

It is possible to carry out a transaction to alienate a tiny share in only two ways:

1. By mutual agreement. In this case, the parties themselves decide which form of agreement to choose (purchase agreement, deed of gift, exchange, etc.). It must be remembered that from 2021, all transactions made with part of the housing are subject to mandatory registration with a notary (Federal Law No. 122 “On state registration of rights to real estate and transactions with it”).
2. By the tribunal's decision. Usually, the need to contact the justice authorities arises if the co-owners cannot agree on the value of the share or on the procedure for using the apartment. Only a court can recognize part of the housing as an insignificant share and oblige the remaining owners to buy it back.

What does substantial interest mean?

The answer to this question is the entire essence of this dispute. The final decision the court will make will depend on how fully and convincingly the party to the proceeding can justify its position.

What will the court pay attention to first? First of all, how interested is the defendant in using this apartment due to his age, state of health, profession, the presence of minor children, and disabled family members.

In each such case, the set and balance of evidence is determined individually.

This is the so-called subjective side of the issue. However, the defendant may not have a significant interest for objective reasons. For example, its share is not just insignificant, but so small that it excludes reasonable options for its use (for example, in the so-called “rubber apartments” the share sizes are often represented by 1/100 or 1/1000).

What share in an apartment can be considered insignificant?

In order for a share in a residential property to be considered insignificant, a court decision is required. After all, if the co-owners of the property come to mutual agreement, then it does not matter whether the alienated part of the apartment is tiny or, on the contrary, significant.

An insignificant share can be recognized only if three certain conditions are met at once:

If all these three conditions are not met together, then the share in the apartment, despite its small area, cannot be considered insignificant.

Can the owner of a significant share lose in court?

An experienced lawyer or trial lawyer, with a high degree of probability, after analyzing the circumstances of a particular situation, can make a fairly accurate forecast regarding the prospects of a given case.

If, under the circumstances existing at the time of application, the prognosis for you is unfavorable, you will be given recommendations on what you need to do to prepare a win-win position in court.

With a favorable prognosis and proper preparation for the case, in particular the collection of evidence, you can be confident of success.

Such confidence, however, can be provided by personal handling of the case by a lawyer.

I am conducting processes to recognize shares in the ownership of apartments as insignificant, recognize ownership rights to them and pay compensation.
I know well the judicial practice of the Moscow region and higher courts. An example of a court decision in a case regarding a small share in an apartment received as an inheritance.

If you need the help of a qualified lawyer, I invite you to a consultation, at which, after studying the documents and circumstances of your case, I can give an opinion and recommendations on further actions.

For advice, contact me by phone 8 (915) 000-36-16

, and we will agree on a convenient meeting time.

Procedure for recognizing a minor share in an apartment

In order for the court to recognize the share of housing as insignificant, it is necessary to follow a certain procedure and procedure.

Procedure

Going to court requires compliance with certain rules:

1. An attempt to resolve the dispute out of court. This stage is not mandatory, however, it is the presence of notification to the co-owner of the desire to buy out his share that will play in your favor during the trial. And if your opponent satisfies your desire and voluntarily sells part of the apartment, then the need to contact the justice authorities will disappear by itself.
2. Collection of evidence. The courts consider documentary evidence to be the most significant. Therefore, it is worth thinking in advance about what certificates can support your claims. These can be receipts for payment of utilities personally by you, and an apartment card, according to which only you are registered, certificates of major repairs of the premises at your expense (estimates, receipts, etc.), an extract from the Unified State Register of Real Estate about the presence of the defendant other housing and so on.
3. Drawing up an application. This main document initiating the legal procedure is drawn up in accordance with the requirements of Art. Art. 131, 132 Code of Civil Procedure of the Russian Federation. A sample of it can be downloaded from our website below, but it is worth considering that each situation is individual. It is best to entrust writing a claim to a professional lawyer.
4. Participation in litigation. If you can try to draw up a statement of claim yourself, then at this stage the participation of a professional lawyer specializing in real estate disputes becomes necessary. The issues of recognizing a share as insignificant and its forced redemption are quite complex, because it affects the rights of citizens to the inviolability of personal property, which are especially protected by the State (Article 35 of the Russian Constitution).
5. Adjudication. After hearing all sides of the dispute and carefully considering all the evidence, the judge makes his decision. It can be both in your favor and in favor of the defendant. But if you do not agree with it, then you must file an appeal to a higher authority (up to the Supreme Court of the Russian Federation).
6. Entry into ownership. After a court decision is made that satisfies your requirements, compensation for the forced alienation of the share is paid (established by the court), you must contact the registration authorities (Rosreestr or any branch of the MFC). There, an application of the established form is drawn up (the form will be provided by the institution’s employees). Then changes are made to the Unified State Register and you can receive an extract of ownership.

At this point, the procedure for recognizing the share as insignificant and compulsory redemption can be considered completed. However, it is worth remembering that the defendant also has the opportunity to appeal the court’s decision and must wait until the decision enters into legal force before applying to Rosreestr.

Required documents

Before filing a claim to recognize part of the apartment as insignificant, it is best to collect all the documents. This is what will help you get a complete picture and write a statement of claim as completely and correctly as possible.

When sending the claim to court, you must attach the following required documents:

• plaintiff's civil passport;
• an extract from the house register, an apartment card;
• evidence of payment of state duty (receipt);
• evaluation report;
• technical documents for the property;
• other evidence of the validity of the claims specified in the application;
• documentary evidence of attempts to resolve the dispute out of court.

In order for the court to satisfy the claim, the applicant must deposit with the court an amount equal to the value of the insignificant share. To determine the cost, it is necessary to conduct a market assessment of the apartment and its share, in particular.

Important! Often, to reduce costs, the plaintiff uses the cadastral value. If the difference between the market and cadastral value is significant, the defendant may request an examination. In order to speed up the process, it is advisable to contact the appraisal organization yourself.

Assessment requirements:

• the company must have a license to carry out this type of work;
• the appraiser must be a member of the SRO;
• the assessment report must be in writing.

Based on the assessment results, the state duty to the court is calculated.

Statement of claim

When drawing up an application, you must pay attention to the fact that it must contain the following information:

• plaintiff's details;
• the most accurate information about the defendant;
• a third party (usually in such disputes it is the regional branch of Rosreestr);
• the name of the judicial body to which the claim is sent;
• cost of claim;
• title of the application (“statement of claim for recognizing the share as insignificant and paying its owner monetary compensation instead of allocating the share”);
• the circumstances of the emergence of the right of ownership of all shares by all co-owners;
• reasons for going to court;
• information about the results of pre-trial settlement (if any);
• requirements for consideration;
• justification of requirements with references to the norms of current legislation;
• date of compilation, signature of the plaintiff.

The application is copied in a number of copies that is a multiple of the parties to the trial, that is, the judge, the plaintiff and each of the defendants must have the statements of claim and a complete set of copies of the attached documents.

Expenses

When deciding on the forced purchase of part of the residential premises, you will have to incur costs not only for its acquisition.

So, when going to court, you will have to pay a state fee, the amount of which is determined in Art. 333.19 of the Tax Code of Russia and depends on the value of the disputed share of housing. It cannot be less than 400 rubles. The maximum amount is limited to 60,000 rubles.

When registering a share in property, you will also have to pay the cost of registrar services established by the State - 2000 rubles.

The costs that you incur for conducting an appraisal of the value of the home, as well as for paying a lawyer, can be classified as legal costs and recovered from the defendant, but only if a decision is made in your favor.

Deadlines

It takes at least 2 months to consider a claim to recognize part of the housing as an insignificant share. However, in practice these deadlines can extend significantly.

Everything depends not only on the positions of each party, but also on the timing of additional examinations, the timing of appeals, the appearance of interested parties in court, etc.

Upon receipt of a decision that has entered into force, registration with the Rosreestr authorities should not take more than 14 working days.

Forced buyout of shares and pre-trial procedures

This category of disputes necessarily require compliance with

However, it is still recommended to try to negotiate peacefully with the other party, and it is better to do this by sending a written offer to buy out his micro-share from the co-owner, and wait to receive a response, or make sure that there is no response. After this, you can safely go to court with a statement of claim.

Why is this needed? In practice, courts very often clarify this issue and take into account if the plaintiff tried to find a compromise with the defendant before the trial, and this may become one of the arguments for a positive decision for the plaintiff.

In addition, the law states that a dispute between participants in shared ownership must be resolved in court precisely if the owners fail to reach an agreement on the method and conditions for dividing the common property or allocating the share of one of them.

Thus, the fact of sending a written proposal will reliably indicate that the parties have not reached an agreement on this issue.

Legal support in disputes involving the repurchase of a minor share. Tel.+7 (812) 989-47-47 Telephone consultation

Arbitrage practice

The practice that has developed in Russian courts regarding the consideration of cases on recognition of a share as insignificant is quite ambiguous.

Most often, the Supreme Court puts the last point. Even in seemingly identical situations, the decision can be diametrically opposed.

Example. During privatization, a two-room municipal apartment with an area of ​​43 sq.m. was acquired by mother and son, S.N. Romanova. And Romanov V.P. After some time, Romanova S.N. sold her half of the apartment to R.A. Kazantsev, since her son refused to buy out the share in accordance with the established procedure. Kazantsev, in turn, donated 1/3 of his share of the property to his wife I.N. Kazantseva. and adult son Kazantsev A.R. The Kazantsev family did not actually live in the apartment and were not against selling it, but for this they asked Romanov for an amount that was not commensurate with the real cost of the housing.

Then Romanov went to court demanding recognition of I.N. Kazantseva’s shares. and Kazantseva A.R. insignificant and subject to compulsory redemption. To substantiate his demands, Romanov cited evidence that the Kazantsevs did not actually live in the apartment and paid utility bills. The plaintiff also presented a conclusion from a specialist assessing the value of real estate (shares). The plaintiff was denied in the trial court. However, the regional court, and then the Supreme Court of the Russian Federation (on the defendants' appeal) sided with Romanov. He was able to forcibly buy out the shares of the apartment.

What rights does the share owner have?

According to the law, the rights of all owners are initially equal. Any of them, until otherwise established by the court, has the right to use such an apartment, live in it, register in it at the place of residence, and register their minor children there. Family members of the owner living with him also, by law, receive rights to this housing.

In the eyes of law enforcement agencies, the owners of an apartment registered in it have the same rights. This means that the owner of a significant share does not have any advantages until the court decision.

Recently, there has been a tendency to refuse registration at the place of residence of owners of small shares. The FMS authorities justify such refusals by the fact that a large number of citizens are already registered in the apartment and the new owner will not be able to actually live there, and therefore his registration will be fictitious. Sometimes they point out the disproportionately small size of their share.

However, even without being registered, such persons are owners and have rights protected by law.

And here all the contradictions of the law appear. On the one hand, it equally protects the interests of all owners, and on the other, it makes it possible to limit the interests of the owner of a larger share.

As a result, owners must initially independently resolve emerging issues through negotiations and reaching agreements. First of all, this concerns how all owners can use the property. If they cannot agree on their own, the law invites them to go to court to establish the procedure for using the property.

And as you know, a court decision can be very beneficial for one party, but unfair for the other.

It is unfair when the owner of a larger share suffers inconvenience from the proximity of a disproportionately smaller owner.

However, back in 1996, the Supreme Court formulated a rule that the court can determine the procedure for using an apartment not in exact accordance with the shares. This is possible when the court takes into account the established procedure for use. Thus, even with a small share, such a “formal” owner can get a room for use of a much larger size than

Pre-trial preparation

To successfully conduct a case, it is necessary to prepare an evidence base before going to court. The specificity of this category of cases lies in the fact that they are usually considered together with counterclaims for occupancy, for determining the procedure for using the apartment, and for not causing obstacles.

Knowing what questions the court will have, what arguments the procedural opponent can present, you can and should build a reinforced concrete position in court, providing yourself with winning arguments long before the clash in the court hearing.

In addition to a fairly wide range of standard arguments, evidence, and documents for this category that can be presented to the court, an experienced lawyer, taking into account the specifics of your case, will develop an individual strategy and tactics for the trial.

If you decided to handle your case on your own and the court refused you, or for other reasons you received a court decision in favor of a minor owner, then this is not a reason to despair. Yes, as a general rule, the court will not consider a case if the same case has already been considered on the same subject and basis. However, taking into account the specifics of this category of cases and changes in circumstances, it is possible to correct the situation in this case.

I cannot guarantee the result and success of your case without studying the documents and listening to your story. Only scammers can declare from the outset that they will win any case. But I can guarantee you that I will deeply and thoroughly, taking into account my experience and knowledge, analyze your situation, assess your chances of success, tell you how to win your case and give recommendations that will definitely help you.

To assess the prospects of your business, sign up for a consultation and receive detailed answers to all your questions.

Features of urgent redemption

In this case, the share of the owner in need of funds is purchased by a real estate agency. For the owner, this speeds up the receipt of cash and frees the agency from collecting and processing documents. For the agency, the purchase serves as a long-term investment. The cost per unit of area in a share is significantly lower than in a whole apartment. Gradually, the agency can buy out the entire property in parts and return the invested amounts with a profit. Realtors can also use their properties as part of a complex transaction - a “chain”.

From the video you will learn about the sale of a share in an apartment:

In crowded but not mad…

Yes, of course, you can be guided by this principle and tolerate unwanted proximity. But still, if you are ready to fight for your rights and circumstances allow you to do so, go into battle!

If you have become a victim of unscrupulous plaintiffs, do not lose heart either. There is no pre-established truth in such disputes. It all depends on how the line of defense is built. We are always ready to give an objective assessment of your situation and help achieve justice.

The article was prepared taking into account the edition of regulatory legal acts in force as of October 21, 2018. Author of the article: Maya Sablina, Director of the Law Laboratory

Estimated cost of services to support cases of forced buyout of shares in the Maya Sablina Law Laboratory:

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