How much is a small share in an apartment: judicial practice

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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 share in an apartment can be considered insignificant?

There is no universal answer, but there are general recommendations of the Supreme Court of the Russian Federation.

When the housing share is considered insignificant:

• if it cannot be separated in its natural size - actual separation from the rest of the apartment (creation of a separate entrance, kitchen, communications, division of personal accounts);
• if difficulties arise with the procedure for using the apartment - a vivid example is when a 1-room apartment is occupied by strangers of different sexes: a man and a woman;
• if the owner of a small share does not live in the apartment and does not have a significant interest in his part of the housing;
• if the owner has a utility debt;
• if alternative accommodation is available.

The combination of factors allows us to consider the share to be insignificant. If a person is interested in a meager ratio, lives in an apartment, has minor children, pays for services and has no other housing, the owners of large shares will not be able to take away square meters from him even through the court!

What is the minimum area of ​​a tiny part in an apartment? The value can only be established in court - individually and on the basis of an examination. For example, if ⅓ of a “one-room apartment” may be insignificant, then a similar share in a 2-room apartment will no longer be so.

Example:

A one-room apartment in Kazan is divided into 4 shares between two owners - Sergei and Alisa.

One part of the housing ¾ belongs to Sergei, and the other ¼ belongs to Alice. The classic area of ​​a one-room apartment is 32 m².

The owner of a ¼ share can count on 8 m², which is clearly less than the permissible housing standard per person. In other words, Alice cannot allocate a share in the form of a separate room, especially in a 1-room apartment.

If Alice does not have a special interest, Sergey has the right to buy out her small part in court. Thus, the apartment will become the individual property of one person.

Procedure for recognizing a minor share in an apartment

Expert opinion

Kovalev Konstantin Vladimirovich

Practicing lawyer with 6 years of experience. Specializes in criminal law. Recognized legal expert.

Unfortunately, it will not work to consider the share insignificant in words. The fact of “insignificance” can only be established in court - and only after that the ransom can begin. It is for this purpose that the judicial procedure is initiated.

Methods

Now you can find two ways to recognize a small share in an apartment:

• Conclude an agreement - along with the recognition of a tiny share, the co-owners choose the method of its transfer: paid or gratuitous (a striking example is a purchase and sale agreement).
• Forced repurchase through the court - occurs in case of disagreement to sell an insignificant share in the apartment.

The second option is more common, since disagreements may be related to the redemption price. The usual market approach: the buyer does not want to overpay, and the seller does not want to give away a share for next to nothing.

Algorithm of actions

Recognition of a share as insignificant is a relevant process for forced repurchase.

The procedure consists of the following steps:

Stage No. 1 – Peaceful resolution of the issue

A mandatory stage before going to court is to offer compensation for the redemption of a small share. If the price is right, the owner may agree. In this case, the transaction will take place without the participation of the court. Well, if a refusal follows, you will have evidence of a peaceful way to resolve the conflict.

Stage No. 2 – Preparation of evidence

Consider how to define insignificant interest in your situation. If a person does not appear at his place of residence, attach an extract from the house register.

If you don’t pay rent, electricity, water and gas, an extract from the EIRC about the existence of debts. If the co-owner does not monitor the condition of the apartment - receipts for the purchase of building materials, contract agreements, checks, bills from the housing office and other documents.

The principle is clear - to prove that there is no need and the share is not of interest.

Stage No. 3 – Statement of Claim

Stage No. 4 – Going to court

Before going to the court department, attach all documents, expert opinions and receipts for payment of state fees. Be sure to attach a receipt confirming the transfer of redemption funds to the account of the judicial authority (an alternative is a notary deposit).

Then you need to go to the city court at the location:

• location of the disputed living space;
• residence of the defendant - if he is registered at a different address.

Stage No. 5 – Judicial participation

Justify your position in court, invite witnesses and other co-owners. If necessary, ask the court to conduct a technical and construction examination. Appeal to the fact that the defendant has no claims to the share, but does not want to sell it. Point out the factor of alternative place of residence, debts to housing and communal services, etc.

Stage No. 6 – Making a decision

After the court determines the factual circumstances, it renders its verdict: it will set the redemption price and the conditions for the alienation of a small share in the apartment. The parties are given 30 days to file appeals. If they do not follow, the court decision will enter into legal force.

Together with the court decision, you need to visit the nearest branch of the MFC or Rosreestr. Take your ticket to the queue in advance and wait to be called to an open window. Fill out the application, submit the documents and take a receipt with the date of the next appointment. Next, all you have to do is pick up an extract from the USRN - a paper or electronic sample.

Statement of claim (sample)

The plaintiff's demands are included in the statement of claim - an official document when going to court.

The claim form is a simple written one indicating the main points of the dispute. It is advisable to type the application on the computer according to the sample. The number of copies of the claim corresponds to the number of participants. The minimum number of copies is 3 pieces: for the plaintiff, the defendant and the city court.

Below you can see what items the claim consists of and what to include in it:

Documentation

The plaintiff's documentary evidence deserves special attention. Each claim is supported by facts.

What documents are needed:

• statement of claim – from 3 copies according to the number of parties to the dispute;
• a copy of the plaintiff's passport;
• receipt of payment of state duty;
• receipt for payment of the ransom amount - bank statement;
• title and registration documents for a share in the apartment - only the current owners or their representatives have the right to file a claim;
• copy of the power of attorney + passport of the representative (depending on the situation);
• information about pre-trial negotiations - for example, notice to the defendant, testimony of witnesses;
• registration certificate for the apartment;
• an extract from the house register - if the defendant does not live at the place of registration;
• expert's conclusion - on the impossibility of allocating a share in kind;
• certificates and other documents.

According to the rules, the plaintiff presents copies of documents (with the exception of payment receipts). The originals may be needed at the hearing.

Timing and cost

You should not count on a quick result in court. Especially if the defendant intends to defend his rights and is preparing to file counterclaims.

Recognition of a share as insignificant does not come without monetary costs. Along with the redemption price, the plaintiff bears the following types of expenses:

• The state duty for re-registration of papers in Rosreestr is 2,000 rubles .

Subject of proof in cases of forced redemption of shares

In Part 4 of Art. 252 of the Civil Code of the Russian Federation clearly states what must be proven when filing a claim for forced redemption of a share:

- insignificance of the share, - impossibility of its real allocation, - lack of significant interest in the use of common property.

In judicial acts you can find a more detailed description of the subject of proof. Thus, the Presidium of the Supreme Court of the Republic of Bashkortostan in one of the cases indicated the following: the legally significant and subject to proof circumstance was the clarification of the following questions: can the owner’s share in the property be allocated in kind, can the property be used by all owners for its intended purpose (for living). ) without violating the rights of the owner who has a large share in the property right; is it possible to provide the defendants with isolated residential premises for use, commensurate with their shares in the property right, do the defendants have a significant interest in the use of common property, do they need to use the common property, and also do they have the opportunity to pay monetary compensation to another co-owner.

2.1. Insignificance of the share

This criterion does not have a predetermined indicator, but is determined in each case individually. The significance of the share depends on the characteristics of the property. For example, 1/5 in a one-room apartment with an area of ​​36 sq.m., with a high degree of probability, will be considered insignificant. However, the same share in a 3-room apartment can already amount to an entire room, which will make its full use for the owner and reduce the chances of satisfying a claim for forced redemption of the share to zero

For example, K.’s claims were satisfied on the basis that “... that the disputed apartment is one-room and small in size, cannot be used for the residence of both co-owners without violating the rights of the plaintiff, who has a large share in the ownership of this apartment, while the possibility there is no provision for the defendant to use isolated residential premises commensurate with his share in the ownership of the apartment, and he does not have a significant interest in the use of common property...” (appeal ruling of the Primorsky Regional Court dated May 15, 2017 in case No. 33-4358/2017 ).

In another case, the court quite rightly refused to satisfy the request for the forced purchase of ½ share in an apartment acquired during the marriage (decision of the Primorsky Regional Court dated November 5, 2015 in case No. 33-10014/2015). Obviously, half cannot be an insignificant share, since, at a minimum, it is not less than the remaining part. Unfortunately, such a claim, despite its illiteracy, is not unique (appeal ruling of the Penza Regional Court dated March 20, 2018 No. 33-912/2018).

Taking this into account, if you plan to defend your interests in court on your own, we still recommend contacting lawyers for advice and assistance in preparing documents. The cost of filing a claim for forced redemption of a share in the Maya Sablina Law Laboratory is 20,000 - 30,000 rubles.

The general rule for an insignificant share can be formulated as follows: if the share in the right to living space at least approximately corresponds to any of the existing rooms in the apartment or it can be created, then such a share will not be considered insignificant.

Thus, one of the courts of the Saratov region refused to satisfy the claim for the forced purchase of the share of S., who owned 1/3 of the ownership rights to an apartment with an area of ​​58.9 meters, since it had three rooms (17.6, 13.6 and 7.6 sq.m.), any of which can be used by the defendant for its intended purpose in accordance with its share (appeal ruling of the Saratov Regional Court dated 03/07/2018 No. 33-1463/2018).

Using the above example, it is convenient to consider the “approximate correspondence” rule. It is not at all necessary that the footage of the room coincides with the share of ownership to within a tenth of a meter. The deviation can be up to 5 meters, both up and down. But you always need to start from specific factual circumstances. For example, if the share in the living space is 2-3 square meters, then this will not be a basis for providing the owner with a 7-8 meter room. But 12 and 17 sq.m. can already be considered comparable. The fact is that 2-3 sq.m. absolutely useless from the point of view of using the premises for their intended purpose - for living. After all, even a bed wouldn’t fit on such a piece of land, and it would be unfair to infringe on the rights of the majority owners. Twelve meters is a significant area in itself, and it would be unfair to refuse to provide a separate room due to the existing layout.

You should also pay attention to another important clarification that was made in the formulated rule: if the share in the right to living space at least approximately corresponds to any of the existing rooms in the apartment or it can be created , then such a share will not be considered insignificant. If, according to the conclusion of an expert organization, with the existing layout it is possible to isolate an additional room approximately comparable to the disputed share, then the latter cannot be considered insignificant.

2.2. Impossibility of allocating a share in kind

To simplify the explanation, let's make a comparison with a plot of land. Imagine that there is a piece of land with an area of, for example, 30 acres. The plot has two owners: the brother owns 4/5, the sister – 1/5 of the land plot. Relatives have a conflict, and they can no longer live in the same territory. Well, it’s enough to simply separate 6 acres with a fence and the sister can use them at her own discretion: plant a vegetable garden, build a house, a bathhouse, etc. Yes, in this case, a share in kind will need to be allocated at the border of the plot next to the roadway so that the sister can freely enter and leave the plot without affecting the rights of her brother or neighbors.

In an apartment, it is impossible to allocate a share in kind without commensurate damage to the entire property. After all, even if the share corresponds to one of the existing rooms in the living space, then how to ensure the division of corridors, kitchens, bathrooms and other common areas? In a detached house, you can still achieve your goal by, for example, reconstructing the building, but in the conditions of typical urban housing this is an impossible task.

With this in mind, it is necessary to understand that, other things being equal, the forced purchase of a share in an apartment is much more realistic than the forced purchase of a share in a house or land plot. Although if the latter has a minimum size taking into account land legislation, then allocating a share in kind also becomes impossible.

2.3. Lack of significant interest in the use of common property

In paragraph 36 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation” it is explained that when deciding the issue of the absence of a significant interest in the use of common property In particular, the need for the use of this property is assessed due to age, health status, professional activity, the presence of children, other family members, including disabled people, etc.

Often in the reasoning part of judicial acts in cases of forced redemption of a share, one can find an indication that the lack of a significant interest of the defendant in the use of common property has not been proven (appeal ruling of the Penza Regional Court dated January 30, 2018 No. 33-314/2018). Taking this into account, it should be concluded that it is not enough to simply refer to the defendant’s non-residence in the apartment. Relevant evidence must be provided. For example, data confirming the registration of a minority shareholder at a different address, his ownership of another living space, work in another region, income allowing him to purchase other real estate; previously sent proposals to buy out his share, etc.

It should be noted that in practice there is also another approach, according to which the defendant himself must prove that he has a significant interest (appeal ruling of the Moscow City Court dated March 14, 2018 in case No. 33-10810/2018).

There are arguments in favor of both positions. On the one hand, confirming negative facts (in our case, lack of interest) is one of the most difficult tasks in the process. On the other hand, there is a direct requirement of the law that each party is obliged to prove the circumstances to which it refers (Article 56 of the Code of Civil Procedure of the Russian Federation). Since, using imagination, it is still possible to collect certain evidence, we recommend doing so. We are ready to both help prepare for the process as part of a consultation, and fully represent your interests in the forced purchase of a share through the court. For more information on assistance in resolving housing issues, see here.

Please note that the courts also take into account the duration of ownership of real estate (appeal ruling of the Moscow City Court dated May 24, 2018 in case No. 33-22124/2018). If the parties have only recently acquired ownership of an object, it is impossible to determine with certainty whether any of them has a significant interest in its use or not. The measure provided for in Part 4 of Art. 252 of the Civil Code of the Russian Federation, should be applied in exceptional cases and in the presence of sufficient grounds.

Another important point: the plaintiff demanding the forced redemption of the defendant’s share must deposit the amount of the expected compensation into the deposit account of the court or notary, as this will indicate the real possibility of paying the amount of money due to the minority shareholder. Otherwise, the court may come to the conclusion that the plaintiff does not have the opportunity to make a calculation, which will lead to a refusal to satisfy the claim for forced redemption of the share (appeal ruling of the Moscow City Court dated November 2, 2017 in case No. 33-45187/2017, appeal ruling of the Moscow City Court court dated August 28, 2017 in case No. 33-34200/2017).

There are many nuances in cases of forced buyout of shares. We sincerely discourage participation in these processes without professional representation. But if for some reason contacting a lawyer is difficult or undesirable for you, then we suggest watching a video about the forced buyout of a share on our YouTube channel:

Arbitrage practice

The law does not clearly define the term “insignificant share.” Hence the difficulty in interpreting the conditions for recognizing small parts in an apartment. The recommendations of the Supreme Court of the Russian Federation provided some clarity. And if previously the courts did not take into account the examination data, now this point is mandatory.

Before making a decision, the court examines:

• living conditions - is there a need for a room;
• relations between owners;
• minimum standards for the region;
• similar cases in judicial practice.

Let's consider one of the disputes between co-owners.

Example:

What can you do with a small share in an apartment?

The owner of a minor share is no different from other co-owners. He retains the right to sell, donate, bequeath, and even pledge a mortgage loan (provided that the bank approves the transaction).

Expert opinion

Kovalev Konstantin Vladimirovich

Practicing lawyer with 6 years of experience. Specializes in criminal law. Recognized legal expert.

The restrictions are related to the rental - since the share cannot be presented in the form of a separate room, it will be problematic to accommodate tenants. You will have to enter into an agreement with the remaining shareholders.

One of the advantages of owning even a small share in an apartment is the possibility of registration (registration) of third parties. Again, if it is not the owner's child, the consent of the other co-owners is required.

In addition, the owner of an insignificant fraction has priority in buying out the shares of the remaining owners (Article 250 of the Civil Code of the Russian Federation).

By adding new fractions he can increase his interest in the common law. If the size exceeds 12 m², there is a chance to allocate an isolated room (for example, in a 3-room apartment).

Along with the increase in the share, the costs of its maintenance will also increase. The responsibility to pay for housing utilities and major repairs lies entirely with the owner.

Thus, a small share is the part of housing that cannot be allocated in kind. If the share is not of interest to the co-owner, he has another home and does not appear at the place of registration - the remaining co-owners can file a claim for its forced redemption.

Monetary compensation is determined by the court. Usually the cadastral price or the average cost of housing in the region is taken into account.

Watch a video about buying out a small part of an apartment from the owner:

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Recognition of the share as insignificant - we publish this information at the numerous requests of workers! There is definitely an opinion among people that this is possible, and, moreover, very profitable. We will try to fully cover this topic. The plan is:

1. Regulatory framework.

Conventionally, this section can be divided into two: Legislative framework and Judicial practice;

The legislative framework is, first of all, Article 252 of the Civil Code of the Russian Federation, on the division of property in shared ownership and the allocation of a share from it. We present it in full, but we are only interested in clause 4 of this rule of law.

1. Property in shared ownership may be divided between its participants by agreement between them.

2. A participant in shared ownership has the right to demand the allocation of his share from the common property.

3. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property.

If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the cost of his share paid to him by other participants in shared ownership.

4. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the right of ownership shall be eliminated by payment of the appropriate amount of money or other compensation.

Payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is permitted with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated, and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation.

5. Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property.

However, it should be noted that in this matter judicial practice has a dominant role. This is confirmed by the fact that there have not yet been any mass cases of recognition of insignificance and subsequent repurchase of shares in judicial practice.

The first case of forced payment of compensation for a small share, known at the Federal level, occurred in the spring of 2012. However, this case has quite serious legal reservations, so that the widespread use of such an analogy seems to us to be very difficult.

The Supreme Court's ruling on this case is published in the NEWS section.

This process will, of course, be judicial and civil; in addition, it will be very long and unpromising. First, you need to file a claim with the district court at the location of the real estate. The subject of the claim will be the recognition of the right, the basis of Article 252 of the Civil Code of the Russian Federation. We will soon publish the appropriate text of the statement of claim in the COURT PRACTICE section.

3. Necessary conditions for winning the case.

Based on the ruling of the Supreme Court of the Russian Federation, which especially emphasized the fact that when allowing the right to buy out an insignificant share in court, the legislator proceeded only from the exclusivity of such situations, the court cannot always make such a decision, but only in the presence of specific circumstances. Having carefully analyzed the judicial precedent, we briefly outline these circumstances for you.

And so, the court will decide in your favor if:

It is impossible to allocate an isolated room to the Shareholder, given the size of his share.

It is impossible to allocate a part of the common property to the Joint Shareholder in proportion to his share.

The co-sharer never moved into the disputed apartment.

The rest of the Shareholders are strangers to him.

When concluding the agreement, the Shareholder knew about the current situation around the apartment.

The former Shareholder did not use this apartment.

The co-shareholder, before the claim was brought against him to buy out the share, did not ask to enter the apartment and did not dispute this situation anywhere.

Thus, it is obvious that it is incredibly difficult to practically use a judicial decision by analogy. For example, the Shareholder managed to file a claim for moving in before filing a claim against him to recognize the share as insignificant, and now item No. 7 flies off the list.

Or, for example, the former Joint Shareholder used the apartment for some time, now minus point No. 6. Or, for example, the Joint Shareholder does not admit in court that he knew about the situation with the apartment, then minus point No. 5.

It will also not be possible to buy out a small share from a close relative; there is point No. 4 for this case. Not to mention, if it is possible to allocate an isolated room in proportion to the share (1/2 in a two-room apartment, 1/3 in a three-room apartment, 1/4 in a four-room apartment are immediately dropped), then the most important point No. 1 falls off.

From all of the above, it can be seen that a completely insignificant part of small shares in the right of common shared ownership falls under the punishing sword of the law. Such a judicial precedent is of absolutely no use.

The boundaries within which the Supreme Court proposed that citizens enter in order to buy out small shares of apartments are completely narrow and, in our opinion, very flimsy. They can be broken not only by a more or less competent lawyer, but even by the defendant-Sododelnik himself, without even resorting to the services of specialists, but simply by reading our advice.

And all this is outright bullshit compared to what follows.

And what, exactly, is all this fuss about? Let's pick up a calculator and use our brains.

For those who did not immediately go to the NEWS section to read the Supreme Court’s ruling, we report that the court acted quite fairly in another respect. Thus, when determining the redemption amount of a minor share, the court took into account the market value of the entire residential premises, determined by an appraisal examination, and not the market value of the share itself (you will agree that this is a significant difference).

This is the main essence of the definition.

A 4-room apartment with an area of ​​80 sq.m. in a sleeping bag in Moscow costs, relatively speaking, 8 million rubles, therefore the court will order to buy:

It is no longer possible to buy back 1/4 due to insignificance, because You can select a separate room. If the rooms are adjacent, then for 2 million rubles. buy it please))))

1/5 share of it for 1.6 million rubles. take it with confidence)))

1/6 share of it for 1/3 million rubles. redeem without sinning)))

Buy 1/8 share of it for 1 million rubles as your property)))

A 1-room apartment in a residential area in Moscow costs an average of 5 million rubles. This means the court will offer to buy out 1/3 for 2 million rubles, 1/4 for 1.25 million rubles, 1/5 for 1 million rubles, 1/10 for 500 thousand rubles. etc. Although, in fact, the Shareholders will not be able to sell their shares from the market for that kind of money.

However, the bulk of the capital's population lives not in the center, but in the districts, where the price per square meter is much cheaper. From simple calculations it becomes obvious that for forced purchase in apartments of the middle and low-cost housing segment, it makes sense to include only completely microscopic shares, such as 1/30 or less, which are initially sold from the market for registration.

Hence the conclusion: we wanted the best, but it turned out as always!

Now, knowing about the rules of judicial redemption, those of the Shareholders who were still really thinking of buying back small shares for next to nothing will strangle their fellow sufferers even more tightly, since they know that it is more profitable to buy a small share from the market, practically for nothing, rather than pay through the court real money from the market value of the entire apartment in proportion to the purchased share.

• How to write a statement to the police
• Do I need a tenant's residence permit?
• How, having a share, secure a separate room for yourself
• How to notify the Shareholder, he does not receive notifications
• How to survive the tenants of the Sharecropper
• Can the Joint Shareholder prevent the arrival of guests?
• How to notify the Shareholder about the sale of a share
• How to prevent entry through court
• Do I need to notify everyone when selling a share to one?
• How to notify the Shareholder through a notary visit
• How to create impossible living conditions
• How to recognize the share as insignificant and buy it through the court
• How to transfer the buyer's rights to yourself
• How to move into a share
• What is the difference between buying and selling and donating?
• What is a quick sale of an apartment share?
• How, if you are notified, give yourself a chance
• How to sell a share through a gift agreement
• How to notify a minor Shareholder
• How to sell a share if it is completely impossible to notify
• What documents does the owner need to sell a share?
• What documents does the owner need to donate a share?
• Can a stranger live with the Shareholder?
• How can you technically challenge a gift agreement?
• How and in what form to notify the Shareholder
• How to determine the boundaries of shares in an apartment
• How to disrupt a purchase and sale transaction from a Joint Stockholder
• How to deal with the Sharecropper creating unbearable conditions
• How can a Shareholder reduce the price of a share?
• How to prevent forceful possession
• For what reasons can the court refuse to move in?
• How to determine the order of use in an apartment

Only on our website you can learn how you can independently, without the help of a real estate agency, sell your share of an apartment. Other sections of the site are devoted to this, in which you will find the necessary information. Dig hard and you will find everything!

If you think that this topic has not been fully covered by us, or is incorrect, and you have any questions or comments, write them in the form attached below. You are guaranteed to receive a response to your letter from us or from site users.

Joint shared ownership of housing often arises under not the most pleasant circumstances (for example, during a divorce) and the relationship between the owners of parts of the property is usually quite strained. The easiest way to solve the problem is to buy out the other person’s share, but the other party does not always agree to such a deal.

In this case, the only option left is to recognize the share in the apartment as insignificant. How this can be done and why – read in this article.

Allocation of share in kind

For greater clarity, it is worth recalling what the allocation of a share is and when such an allocation is possible. Firstly, a share in ownership (for example, the same 1/5) does not mean that you own 1/5 of the building (a house or apartment, for example). Secondly, a share in the right, which has not yet been allocated in kind, allows co-owners to own and use all the property as a whole, and not just some part of it. The allocation of a share is always aimed at terminating the right of common ownership and the emergence of sole ownership of the part of the residential premises corresponding to his share by the allocated owner.

According to paragraph 35 of the Joint Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, in accordance with paragraph 3 of Article 252, the court has the right to refuse in a claim to a participant in shared ownership for the allocation of his share in kind, if the allocation is impossible without disproportionate damage to the property in common ownership. Such damage should be understood as the impossibility of using the property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value (for example, a collection of paintings, coins, libraries), inconvenience in use, etc.

Clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 10, 1980. No. 4 “On some issues of the practice of courts considering disputes arising between participants in common ownership of a residential building” regarding the disproportionate damage to the structure also contains the following explanation:

“disproportionate damage to the economic purpose of a building should be understood as a significant deterioration in the technical condition of the house, the transformation of residential premises into non-residential premises as a result of conversion, the provision of premises that cannot be used for housing due to the small size of the area or the inconvenience of using them, etc. P.".

Further, paragraph 11 of the Resolution of the Plenum of the Supreme Court No. 4 contains the following explanation:

if there is a real possibility of allocating a share in kind, monetary compensation for part of the house should not be collected either in favor of the allottee or the remaining co-owners if they object to receiving it. If it is impossible to allocate in kind, monetary compensation for a share in the common ownership of the house is determined by agreement of the parties. If an agreement is not reached, then, at the claim of the separating owner, the amount of compensation is established by the court based on the actual value of the house at the time of resolution of the dispute.

At the request of a participant in common shared ownership of a house, the allocation of his share (division of the house) can be made by the court if the allocated share constitutes an isolated part of not only residential, but also utility rooms (kitchen, corridor, bathroom, etc.) of the house with a separate entrance, or it is possible to turn this part of the house into an isolated one through appropriate refurbishment. As a rule, the technical possibility of allocating a share is available only in individual residential buildings, but in apartments (multi-apartment residential buildings) it is almost impossible to allocate a share.

What is a minor share

The legislation, Article 252 of the Civil Code of the Russian Federation, mentions the possibility of forced purchase of a small share in an apartment, but there is no clear definition of what such a share is. According to general rules, a share can be considered insignificant when:

• It is too small to be isolated in nature.
• The owner of the share is not interested in using it.

Expert opinion

Kovalev Konstantin Vladimirovich

Practicing lawyer with 6 years of experience. Specializes in criminal law. Recognized legal expert.

This is a rather vague definition and therefore the court in each individual case will make an individual decision on whether to recognize the share as insignificant or not.

How do shares appear?

Shares most often appear when spouses divide jointly acquired real estate or when it is inherited by several heirs. Quite often, quite tense relations are established between such newly minted share owners: divorced spouses rarely want to live together, and the heirs often have a grudge against each other.

In such a situation, they prefer to leave by selling their shares. At the same time, other owners have a pre-emptive right to purchase, but it is a standard situation when the seller tries to get around them, not wanting them to get the entire apartment.

Grounds for buying out the owner's share in court

Termination of property rights is possible only in cases specified by law : when the owner alienates his property to other persons, destruction or destruction of property, renunciation of property rights and in other cases of loss of property rights.

For the forced seizure of property from the owner, legal grounds are required, the list of which is listed in Article 235 of the Civil Code of the Russian Federation, and is exhaustive.

One of these grounds is the alienation of property provided for in paragraph 4 of Article 252 of the Civil Code of the Russian Federation.

This provision of the law provides that payment of compensation to a participant in shared ownership instead of allocating his share in kind is allowed only with his consent. However, the court may, even in the absence of the consent of this owner, oblige the remaining owners to pay him compensation, but only in the presence of a combination of three exceptional circumstances:

• The share of this owner is insignificant (for example, 1/21 share in the common property)
• The share cannot be actually allocated (cases when it is an apartment or room with one entrance, there is one bathroom, one kitchen)
• This owner does not have a significant interest in the use of the common property (he does not actually live in the residential premises and does not need this housing)

If only one or two of these factors are present, forced redemption of a share is impossible. It is no coincidence that the legislator established the need for the simultaneous presence of these factors, since otherwise the balance of interests of participants in common property will be upset.

For example, if the owner of a microshare, nevertheless, lives in this premises and has no other housing, then this indicates that he has a significant interest in using his share. In this case, even the fact that the share is insignificant and the impossibility of allocating it will not be grounds for depriving him of housing.

In addition, according to the position of the Constitutional Court of the Russian Federation in a number of definitions (including dated October 13, 2009 No. 1359-О-О), the court, when considering a case and resolving an issue and whether or not a person has a real interest in using a minor share, must also establish how commensurate this interest is with the inconvenience that may be caused to the other owner.

In practice, the courts also find out when and how the ownership of each of the co-owners arose, whether the owner acquired an insignificant share, knowing that the largest part of the residential premises belongs to someone else, and that his small share will not allow him to live in this premises together with others ; whether the owner of a small share abuses his right, for example, using his share to register other persons, trying to rent, etc.

Conclusion: Judicial repurchase of a small share in the common property is possible , despite the complexity of these disputes.

This position is confirmed by the Supreme Court of the Russian Federation , in particular, in the ruling dated 04/03/2012 No. 5-B11-134.

Moreover, in August 2021, the Supreme Court of the Russian Federation, in cassation, issued an unprecedented ruling in civil case No. 78-KG16-36, which overturned the decisions of the lower authorities of St. Petersburg, which rejected the claim for the forced purchase of a 1/3 share in a three-room apartment, with that the defendant's share corresponded to a separate room. The Supreme Court of the Russian Federation indicated that the lower courts did not take into account that the defendant does not actually use his share, using the room only to store his things, and does not bear the costs of its maintenance, i.e.

has no interest in using its property, and also noted the defendant’s dishonesty and other circumstances that make it possible to recognize the defendant’s share as insignificant.

Of course, such a case requires a competent approach from a lawyer who will be able to correctly apply all the technologies of evidence, and if the conditions established by law are met, the case on the forced purchase of a share in a residential premises will be won.

Recognition of the share as insignificant in the trial

Any legal process begins with the filing of a claim.

Claim for recognition of the share as insignificant

The statement of claim should be drawn up, guided by the rules established in Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation.

It should be remembered that a copy of the claim must be sent to the defendant.

Requirements of the article of the Code of Civil Procedure of the Russian Federation on sending a copy of the claim to the defendant in a civil case.

The claim is filed in the court on whose territory the property is located. This is stated in Art. 30 Code of Civil Procedure of the Russian Federation (exclusive jurisdiction).

Judicial practice of the Supreme Court of the Russian Federation on recognition of a share as insignificant

The legal world in 2021 was literally blown up by the Determination of the Judicial Collegium for Civil Cases, chaired by Judge V.V. Gorshkov. Supreme Court of the Russian Federation dated July 12, 2016 N 46-КГ16-8.

From the content of the above provisions of Article 252 of the Civil Code of the Russian Federation, it follows that participants in shared ownership have the right, by reaching an agreement on the method and conditions for dividing common property or allocating the share of one of them, to divide the common property or allocating a share among themselves, and in the event of failure to reach such an agreement - go to court to resolve the dispute.

By establishing in paragraph 4 of Article 252 of the Civil Code of the Russian Federation the possibility of forced payment to a participant in shared ownership of monetary compensation for his share, and therefore the loss of his right to a share in the common property, the legislator proceeded from the exclusivity of such cases, their admissibility only under specific circumstances and only to the extent necessary to restore the violated rights and legitimate interests of other participants in shared ownership.

Bochkareva O.A. as a participant in shared ownership filed a claim against co-owner D.N. Gavrikov, since the legal provisions of paragraph 4 of Article 252 of the Civil Code of the Russian Federation apply both to the claims of the separated owner and to the claims of the remaining participants in the common shared ownership.

This was not taken into account by the courts.

In refusing to satisfy the stated demands, the courts proceeded from the fact that the defendant has an interest in the use of common property, since he did not make demands for the allocation of a share in the disputed property, and also because consent to the allocation of a share was not expressed. However, these conclusions are not based on the provisions of Article 252 (clause 4) of the Civil Code of the Russian Federation.

The conclusions of the courts are that Gavrikov D.N. bears the costs of maintaining the common property together with Ozerova I.V., in violation of the requirements of the current Civil Procedure Code of the Russian Federation, are not based on any evidence.

The courts' reference to the defendant's lack of other real estate on the territory of the Russian Federation cannot in itself be a basis for refusing the claim.

The courts did not take into account that Gavrikov D.N. lives in the Leningrad region and does not maintain relations with the plaintiff.

These circumstances are confirmed by the case materials (case file 114, volume 1, case file 98, volume 2), but they have not received a judicial assessment, as required by Article 198 (Part 4) of the Civil Procedure Code of the Russian Federation.

The courts also did not take into account that when deciding on the presence or absence of a real interest in the use of an insignificant share in the common property, the proportionality of the person’s interest in the use of the common property with the inconveniences that his participation will cause to other (other) owners must be established.

The question of whether a participant in shared ownership has a significant interest in the use of common property is decided by the court in each specific case on the basis of a study and assessment of the totality of evidence presented by the parties, confirming, in particular, the need for the use of this property due to age, health, professional activity, presence of children, other family members, including disabled people, etc. (paragraph 36 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation”).

These circumstances have not been established or examined by the courts.

Costs of litigation

It is worth remembering the civil rights of the plaintiff who decided to initiate a judicial procedure for recognizing the share as insignificant with the help of lawyers or attorneys.

The person who initiated the lawsuit and ultimately won it has the right to recover compensation for the costs of the representative. The legislator provided for this by including Art. 94 Code of Civil Procedure of the Russian Federation. That is, the plaintiff has the right to recover legal costs from the defendant. His procedural rights are also protected by Art. 100 Code of Civil Procedure of the Russian Federation.

To the party in whose favor the court decision was made, at its written request, the court awards the other party the costs of paying for the services of a representative within reasonable limits.

In addition, the costs of preparing a notarized power of attorney for a representative and the costs of paying for postal services will be considered as legal costs.

Also recognized as expenses are the costs of conducting an examination of the case. All this is also described in Art. 94 Code of Civil Procedure of the Russian Federation.

In addition, 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 should be remembered that when registering the transfer of rights in Rosreestr, you must pay a state fee in the amount of 2,000 rubles for an individual or 22,000 rubles for a legal entity.

Time limits for consideration of the case in court

This category of civil disputes belongs to the district court. This is stated in Art. 24 Code of Civil Procedure of the Russian Federation. According to Art. 154 of the Code of Civil Procedure of the Russian Federation, the civil process lasts two months. Practicing lawyers and professional litigators are well aware that in Moscow and St. Petersburg, on average, a civil case is heard in a district court from four to six months. Therefore, a citizen who wants to recognize a neighbor’s share as insignificant in court must be patient and wait. There is no need to complain against the judge in the case for violating the deadlines provided for in Art. 154 Code of Civil Procedure of the Russian Federation. If the Chairman of the Court treats her well and values ​​her, then the judge will not suffer anything for violating the procedural deadlines for consideration of the case.

Payment of compensation to a participant in shared ownership

Payment of compensation for an insignificant share is decided solely with the consent of the owner of the share, however, these powers are vested in the court. The Supreme Court of the Russian Federation stated: the right of the court to take away a micro-share and replace it with payment is an exceptional case and it is permissible “only under specific circumstances and to the extent necessary to restore the violated rights and interests of other participants in shared ownership.”

Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property (clause 5 of Article 252 of the Civil Code of the Russian Federation).

The cost of a lawyer in court to recognize the share as insignificant

In general, it is not entirely correct to discuss the cost of services without knowing the situation itself and without seeing the documents. The lawyer needs to study the client’s documents, his situation and develop a legal position.

Approximate cost:

• Drawing up a statement of claim to the court to recognize the share as insignificant - from 8,000 rubles;
• Drawing up a petition for interim measures - from 5,000 rubles;
• Drawing up a petition to obtain evidence - from 5,000 rubles;
• Drawing up a petition for the appointment of a forensic examination;
• Representing the interests of a party in civil proceedings in the court of first instance - from 40,000 rubles;
• Participation of a lawyer in one court hearing - from 8,000 rubles (the cost will increase if the trial takes place in the Moscow region);
• Familiarization with the materials of a civil case - from 10,000 rubles;
• Obtaining a court decision by a lawyer - 5,000 rubles;
• Drawing up an appeal in a civil case - from 12,000 rubles;
• Representation of interests in the court of appeal on a turnkey basis - from 40,000 rubles;
• Drawing up a cassation appeal to the Second Cassation Court of General Jurisdiction - from 30,000 rubles;
• Representation of interests in the Supreme Court of the Russian Federation - from 45,000 rubles.

Consultation with a lawyer on housing issues

Lawyers of Praktika i Consulting LLC provide free legal advice within the framework of the Federal Law “On Free Legal Aid in the Russian Federation” dated November 21, 2011 N 324-FZ.

Office of PIK LLC in St. Petersburg

Our office is located at the address: St. Petersburg, embankment of the Fontanka River, building 59, 2nd floor, office 216. The nearest metro stations are Sennaya Ploshchad, Gostinny Dvor, Vladimirskaya, Dostoevskaya, Zvenigorodskaya, Pushkinskaya "

Business-. St. Petersburg, Fontanka River embankment, building 59.

The entrance is in the center of the building. You need to go through the glass doors, go to the reception, write out a pass to PiK LLC (office 216), go through the left turnstile and go up to the second floor. The red door is located immediately opposite the passage.

The main entrance to Lenizdat. Fontanka, house 59.

Consultation is provided by lawyer Natalia Nikolaevna Alekseeva.

Family law lawyer at Praktika i Consulting LLC Alekseeva Natalia Nikolaevna.

Lawyer number Alekseeva N.N.

phone number of lawyer Natalia Nikolaevna Alekseeva, LLC “Practice and Consulting”

Lawyers' office of PIK LLC in Moscow

Reception of citizens is carried out at the office at the address: Moscow, BC “Kalanchevsky”, st. Kalanchevskaya, building 15a, 4th floor, office 429. The nearest metro stations are “Krasnye Vorota” and “Komsomolskaya Ploshchad” (exit to Kazansky Station).

Business-. Moscow, st. Kalanchevskaya, house 15 a.

Business-. Address: Moscow, st. Kalanchevskaya, house 15 a.

Our office is located 10 minutes walking distance from the Basmanny District Court of Moscow. And therefore, participation in one court hearing by our lawyer in a civil case will cost the customer 8,000 rubles. The price is fixed and cannot be revised.

Representative in Moscow courts

The chief lawyer of Praktika and Consulting LLC, Alexander Evgenievich Belyaev, represents the interests of citizens in the district courts of Moscow.

Lawyer of LLC "Practice and Consulting" Belyaev Alexander Evgenievich

Phone number of Belyaev A.E. 8-911-929-87-07.

The article was prepared by lawyer A.E. Belyaev. 23.08. 2021, made changes 05.09. 2021.

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.

Different understandings of the rules of law by courts of general jurisdiction and arbitration courts

According to clause of the joint Resolution of the Supreme and Supreme Arbitration Court of the Russian Federation No. 6/8, if it is impossible to divide property between all participants in common property or allocate a share in kind to one or more of them, the court, at the request of the separating owner, has the right to oblige the remaining participants in shared ownership to pay him monetary compensation , upon receipt of which the co-owner loses the right to a share in the common property. In exceptional cases, when the share of a co-owner is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this co-owner, oblige the remaining participants in the shared ownership to pay him compensation (clause 4 of Article 252 of the Code). But unlike courts of general jurisdiction, arbitration practice follows the path of a different interpretation of the commented rule of law.

Thus, in the Resolution dated 09.09.2004. The FAS East Siberian District in case No. A69-1270/03-10-8-F02-3639/04-S2 indicated the following.

“..Thus, the norms of paragraphs 3, 4 of Article 252 of the Civil Code of the Russian Federation, paragraph 36 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code Russian Federation" are applied when one of the participants in common shared ownership makes a claim in court for the allocation in kind of his share from the common property. Dvinskaya V.G. she did not go to court with a demand for the allocation in kind of her share of 3/4 of the total property - a gas station located at the address: Republic of Tyva, Todzhinsky kozhuun, village of Toora-Khem (a place west of the diesel power station). Defendant Dvinsky V.A. with a demand for the allocation in kind of its share of 1/4 of the common property - AZS also did not go to court, nor did it consent to the transfer of its share in the common property to the plaintiff - V.G. Dvinskaya. Paragraph 1 of Article 252 of the Civil Code of the Russian Federation establishes that property in shared ownership can be divided between its participants by agreement between them.

The Civil Code of the Russian Federation does not provide for the right of a participant in common shared ownership to go to court with a demand to compel other participants in common shared ownership to transfer their shares to him in kind.”

In another ruling, the Arbitration Court also stated:

“..When deciding to transfer to the plaintiff all the defendants’ shares in the common property, the arbitration court was guided by paragraph 4 of Article 252 of the Civil Code of the Russian Federation, which cannot be considered correct, since the said paragraph refers to an insignificant share of the owner, who requires the allocation of his share even in the absence his consent to the possibility of payment to him by other participants in the shared ownership of compensation. That is, taking into account these rules, the arbitration court, without the consent of the distinguished owner (plaintiff), could decide the issue of payment of compensation to him by other participants in shared ownership (defendants), and not vice versa, as decided by the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug...” (Resolution of the FAS ZSO dated March 11, 2004, case N F04/1263-130/A75-2004).

Also, to confirm the argument that the plaintiff in this case does not have a substantive right to claim (its satisfaction), one can cite another Resolution, where the court stated the following:

“...As provided for in part two of Article 252 of the Civil Code of the Russian Federation, a participant in shared ownership has the right to demand the allocation of his share from the common property. In accordance with part three of Article 252 of the Civil Code of the Russian Federation, if the participants in shared ownership fail to reach an agreement on the method and conditions for dividing the common property, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership.

Part four of this legal norm provides for cases when it is possible for the remaining owners to pay compensation to the allocated owner (with or without his consent). Thus, payment of compensation instead of the allocation in kind of the share of one of the owners is possible only if there is an expression of the will of this owner to allocate his share from the common property. As can be seen from the case materials, there is no such expression of will on the part of KUGI - the authorized representative of the owner.

The forced allocation of the share of one of the participants in the common shared property (in this case, St. Petersburg) is not provided for by law, and therefore the Institute’s claim was rightfully rejected” (Resolution of the Federal Antimonopoly Service of the North-West District of November 13, 2003, Case No. A56-25833/02).

It should be noted that, in making the above decisions, the Arbitration Courts were guided by the same joint Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996, which contains clarifications mandatory for both arbitration and general courts jurisdiction (based on Article 56 of the Law “On the Judicial System”, Article 126 of the Constitution of the Russian Federation).

But an example of “taking a phrase out of context” is contained in the Bulletin of Judicial Practice of the Omsk Regional Court No. 2 (27), 2006:

"..R. filed a claim against S. for payment of monetary compensation for a share in the right of common shared ownership of the apartment...

“..According to paragraph 7 of Art. 235 of the Civil Code of the Russian Federation, forced seizure of property from the owner is not allowed, except in cases where, on the grounds provided for by law, the property is alienated in cases provided for in paragraph 4 of Art. 252 of the Civil Code of the Russian Federation. In accordance with Art. 252 of the Civil Code of the Russian Federation, in cases where the owner’s share in the property is insignificant, cannot really be allocated, and he does not have a significant interest in the use of common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation..”

The court, citing the same Article 252 of the Civil Code, indicated that the claim should be satisfied, without paying attention to the fact that the defendant did not actually demand to allocate a share.

How the value of a minor interest is determined and paid

Of course, the parties have a dispute regarding the value of such a share, and only a professional appraiser can resolve this issue.

An examination of the value of property can be ordered by the court at the request of the parties, however, such an assessment can be carried out by the plaintiff before filing a claim. The appraiser's conclusion will be accepted by the court if the defendant does not challenge this assessment and does not file a petition to order a judicial assessment of the property.

When accepting a claim for his proceedings, the judge takes measures to secure the claim and issues an appropriate ruling, according to which the plaintiff must transfer to the deposit account of the Office of the Judicial Department under the Armed Forces of the Russian Federation an amount of money equal to the market value of the purchased share of the property. The receipt for the transfer of funds to the deposit of the Office of the Judicial Department is attached to the case.

Since the plaintiff will not be able to independently determine the real value of the share, it is recommended to conduct a pre-trial assessment of the property.

In any case, if the claims made by the plaintiff are satisfied, all costs of the assessment (both pre-trial and judicial, including if both assessments were carried out) will fall on the shoulders of the defendant.

Jurisdiction of disputes and list of documents for filing a claim in court

Expert opinion

Kovalev Konstantin Vladimirovich

Practicing lawyer with 6 years of experience. Specializes in criminal law. Recognized legal expert.

According to the civil procedural legislation of the Russian Federation, these disputes are considered by district courts at the location of the purchased share (exclusive jurisdiction).

The following documents must be attached to the statement of claim:

1. Documents confirming the plaintiff's ownership
2. Certificate of registration of persons at the disputed address (F-9)
3. Characteristics of the living space
4. Appraiser's conclusion (if conducted before trial)
5. Receipt for payment of state duty, calculated from the cost of the claim
6. Documents confirming the sending to the defendant of a pre-trial offer to buy out his share, if one was sent (mail receipt, list of attachments in the letter, notice)
7. Other documents that will serve as evidence of the plaintiff’s position (acts of non-residence of the defendant, documents on the defendant’s debt for utility bills, etc.).
8. Documents confirming the filing of the claim with an attachment to the persons participating in the case

The court decision made in the case is the basis for the transfer of ownership of a minor share to another co-owner, and the forced seller has the right to receive funds placed on deposit with the Office of the Judicial Department.

To summarize , we can say that cases of forced redemption of small shares in common property are quite complex and unpredictable; even experienced proceduralists require careful preparation and elaboration of the correct strategy , since there are a number of complex legal subtleties and the need to prove a combination of factors that generally influence the outcome affairs.

It will be extremely difficult for a person who has no knowledge of jurisprudence to independently conduct such a case and achieve a positive outcome, therefore it is recommended to entrust the preparation of a statement of claim and the conduct of the case in court to a professional lawyer .

Our lawyers have many years of experience in handling cases in courts, including in this category of cases, both in the first and appellate instances, and know how to effectively protect your interests in court.

You can find court decisions on this category of cases with the participation of our lawyers in the judicial practice section.

At a free face-to-face consultation, the lawyer will conduct a comprehensive analysis of the documents , based on which he will be able to assess the possible prospects of the case and develop competent tactics for its management, and you will be able to make a decision regarding further cooperation with Legal.

Thank you for the article! Write very briefly and clearly. This is the second time I have come across such a case in practice (I am a practicing lawyer from Tatarstan) and this publication answered many of my questions.

Thank you! Good article! But you are right, all the same, cases in this category are unpredictable and the chances are 50%X50%.

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The attitude of the Supreme Court of the Russian Federation to the position of the Constitutional Court of the Russian Federation

02/07/2008 The Constitutional Court of the Russian Federation expressed its opinion on the possibility of applying the rule of paragraph two of paragraph 4 of Article 252 of the Civil Code of the Russian Federation only in relation to a participant who has declared a demand for the allocation of his share in Resolution dated February 7, 2008 No. 242-О-О “On refusal to accept consideration of the complaint of citizens Anatoly Anatolyevich Sangadzhiev and Oleg Anatolyevich Sidorov about the violation of their constitutional rights by the second paragraph of paragraph 4 of Article 252 of the Civil Code of the Russian Federation.” In particular, the Constitutional Court of the Russian Federation indicated the following:

“...According to the second paragraph of paragraph 4 of Article 252 of the Civil Code of the Russian Federation, payment of compensation to a participant in shared ownership by the remaining owners instead of the allocation of his share in kind is allowed with his consent, however, in exceptional cases, the court may decide to pay monetary compensation to the plaintiff demanding the allocation of the share in kind, without his consent: in particular, if the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of his consent to compensation of the share in kind, oblige the remaining participants in the shared ownership to pay him appropriate compensation. At the same time, the law does not provide for the possibility of one participant in the common property filing a claim to deprive another participant of the right to a share with payment of compensation to him, even if this participant does not have a significant interest in the use of the common property and his share is insignificant.

Consequently, the application of the rule of paragraph two of paragraph 4 of Article 252 of the Civil Code of the Russian Federation is possible only in relation to the participant who has declared a demand for the allocation of his share, and only in cases of simultaneous presence of all the conditions listed by the legislator: the share of the co-owner is insignificant, it cannot be allocated in kind, the co-owner does not have significant interest in the use of common property. The subjective nature of the last condition requires that this issue be decided by the court in each specific case on the basis of a study and assessment of the totality of evidence presented by the parties, confirming, in particular, the need to use this property due to age, state of health, professional activity, the presence of children, other members families, including disabled people, etc. (paragraph 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation”)...”

However, the explanation given by the Constitutional Court of the Russian Federation in Determination No. 242-О-О dated February 7, 2008 does not seem to have found a response in the hearts of the judges of the Supreme Court. In the Bulletin of the Supreme Court of the Russian Federation No. 11 of November 28, 2008. The Decree of the RF Armed Forces of October 24, 2006 N 56-B06-17 was published, which contains the following conclusions:

“...The arguments of the supervisory complaint that the application of the provisions contained in paragraph 2 of paragraph 4 of Article 252 of the Civil Code of the Russian Federation is permissible only in relation to a participant demanding the allocation of his share from the common property are based on an incorrect interpretation of the norms of substantive law. By establishing in this norm the possibility of forced payment to a participant in shared ownership of monetary compensation for his share, and therefore the loss of his right to a share in the common property, the legislator proceeded from the exclusivity of such cases, their admissibility only under specific circumstances and only to the extent that this is necessary to restore the violated rights and legitimate interests of other participants in shared ownership, and therefore extended the effect of this norm both to the claims of the separated owner and to the claims of the remaining participants in shared ownership..”

Since Resolution No. 56-B06-17 of the RF Supreme Court dated October 24, 2006 was published in the Bulletin of the RF Supreme Court more than nine months after the date of the RF Constitutional Court Resolution No. 242-O-O dated February 7, 2008, we can conclude that The Supreme Court of the Russian Federation does not intend to change the judicial practice of applying the provisions contained in paragraph 2 of paragraph 4 of Article 252 of the Civil Code of the Russian Federation, and courts of general jurisdiction when resolving civil cases will be guided precisely by the positions of the Supreme, and not the Constitutional Court of the Russian Federation.