Agreement on the division of a land plot in common shared ownership: registration procedure and sample

Dividing the land: when you can and when you can’t

In accordance with current legislation, the division of a land plot is a procedure in which several new plots are formed, and the original one ceases to exist. But not all landholdings are divisible.

The division of land is permitted subject to the following conditions:

• the original intended purpose of the land should not change (the dacha plot does not have the right to turn into agricultural land);
• the area of ​​the resulting plot should not be less than the minimum norm established by law (you cannot divide 6 acres into 100 plots of 6 meters each);
• each formed territory has an entrance or passage;
• There is no legal prohibition on manipulation of land or encumbrance (seizure) on it.

There is a requirement to comply with the minimum size of a land plot during division, but this size differs from region to region, since it is set by regional authorities

By the way : How to find out who owns a plot of land?

The art of cutting and living

This happens when receiving an inheritance, during divorces and in other similar cases.

Few people know that in such operations, the size of the future sections that will be obtained after division is extremely important.

The fact is that, according to the law, it is possible to give a person his share only if all the plots formed after the division correspond to the minimum permitted size for the intended use of the land.

That is, if initially the plot was provided for gardening, then it must be divided so that each part can continue to be engaged in this gardening.

Similar clarifications were given when the Judicial Collegium for Civil Cases of the RF Armed Forces reviewed the results of a trial of a land dispute in the Volgograd region. There, a citizen came to court and asked to be allocated part of a house and a plot of land, which were owned by several owners on the basis of common shared ownership.

In court, the plaintiff explained that he owned a two-thirds share of the house and land. According to the BTI passport, the total area of ​​the house is 70.1 square meters. m., and the plot is 506 sq.m. One third of the share was owned by the woman, and after her death - by the heir.

If the plot is intended for gardening, then it must be divided so as not to interfere with gardening

This heir did not agree with the neighbor’s demand and brought a counterclaim to court - to divide the house and land according to the option that he proposes.

The local court sided with the plaintiff and divided the house and land. The plaintiff got 337.3 sq. m, and the defendant - 167.7 sq. m. m.

The appeal agreed with this decision.

The local Volgograd court, when making this decision, followed the simplest path - it divided the house and land according to the historical use order there - without deviating from the size of the shares in the parties' ownership of the house and land.

The Supreme Court did not agree with this decision and explained why.

The Land Code (Article 1) states that plots owned by citizens are formed in different ways. Plots are redistributed from existing plots, allocated from existing plots, plots from state or municipal property are given away or sold. According to the same Land Code, the allocation of a share from a plot of land is the same as the allocation of a plot. And the one from which a part was “cut off” will continue to be considered a site, but within new boundaries. The person who had the share, after the allocation, becomes the real owner of the received plot, and the remaining owners of the shares remain the owners of the parts in a single plot.

Another important point is that the Land Code states that no matter how parts of the whole plot are changed, cut or separated, all its shares must correspond to the original intended purpose and permitted use. According to the law, plots, depending on their intended purpose and permitted use, have maximum minimum and maximum sizes.

In 1996, a general plenum of the Supreme and Supreme Arbitration Courts was held (N6/8 of July 1, 1996). At this plenum there was talk about the Civil Code. It contains Article 252, which states that the court has every right to refuse the claim of a participant in shared ownership who has asked to allocate a share in kind. Refusal is possible if the allocation of a share would entail “disproportionate damage to property in common ownership.” That is, if after allocating a piece of land, the remaining plot cannot be used for its intended purpose. In this case, the concept of “damage” must be understood as a serious deterioration in the technical condition, the inability to use the thing for its intended purpose, inconvenience in use, a decrease in the cultural or artistic value of the thing. In the latter case, we are no longer talking about land, but about collections of paintings, objects, or libraries.

These clarifications, the Supreme Court emphasized, comply with the Law “On the State Real Estate Cadastre”. According to it, the cadastral authority decides to refuse to register a plot if the new plot or the remaining old one does not comply with the minimum and maximum dimensions prescribed by law.

From all that has been said, the Judicial Collegium for Civil Cases of the Supreme Court concludes that the allocation of a share in kind to one of the owners of a land plot is possible only if this plot and the plots remaining after division have an area not less than the minimum permitted and corresponding to the intended purpose.

The Land Code states that maximum and minimum sizes are established by urban planning regulations. The Town Planning Code states that land use rules and sizes are written by local authorities.

In our situation, there is a resolution of the Volga City Duma of the Volgograd region. According to it, the maximum minimum plot is 0.02 hectares, and the maximum maximum is 0.2 hectares. Therefore, in our dispute, the newly formed plot, which the court allocated for the ownership of the defendant - 168.7 square meters - does not meet the requirements of the law. The Supreme Court of the Russian Federation ordered the land dispute to be reconsidered.

Examples of situations

The question arises in situations where the land is in common joint or shared ownership: when dividing the property of spouses after a divorce or when inheriting land by several heirs. And sometimes the only owner wants to split his property into several parts to achieve some of his goals.

Example 1.

The Kanareikin brothers inherited a house in the village and vast agricultural lands after the death of their father. Fyodor Kanareikin decided to continue his father’s business and start farming, and his brother Ivan wants to sell his share and buy an apartment in the city.

Example 2.

Several years ago, Stepan Petrovich, on occasion, bought a large piece of land on the outskirts of the village. And now the city has grown, and active housing construction is underway in the neighborhood. So Stepan decided to split the plot into several and sell it to the townspeople for the construction of cottages.

Algorithm of actions

Step 1. Conduct land surveying.

Land surveying is carried out by a cadastral engineer, this is a paid service. The result will be a boundary plan

Step 2. Draw up an agreement on the division of the land plot between the owners - a written document signed by all owners of the original plot. No indicates the address and cadastral number of the land, information about the owners.

Step 3. Assign addresses to the newly formed plots.

Addresses are assigned by local governments in whose jurisdiction the land is located. To do this, you should submit an application there:

• bring it in person
• send by mail,
• submit through the MFC,
• submit through State Services.

Step 4. Register new plots in Rosreestr.

Step 5. Receive registration documents.

Related papers.

After the agreement is drawn up and signed, you will need to formalize the changes in Rosreestr. And here you will need the following documents:

• Agreement on the redistribution of shares in common shared ownership – 3 pcs.
• Photocopies and original passports of all co-owners.
• When changes are made by a trusted person, you need a power of attorney, endorsed by a notary, and a passport of the authorized person.
• Documents certifying the property rights of shareholders, i.e. on what basis did the co-owners become shareholders of this property - purchase, inheritance, donation.
• If the agreement includes the interests of the child, then permission from the parents and the guardianship department is required.

Please note that you may also be required to provide original copies of documents as proof, so we recommend taking them with you both to the re-registration and to the notary.

How to draw up a separation agreement

When the land belongs to one owner, he himself decides how to do it. But most often there are several co-owners. When all owners reach agreement on the division of their land ownership, such an agreement is formalized in a written agreement, which is concluded, as a rule, after the land surveying procedure, which includes defining the boundaries of the original land ownership and newly formed plots. If one of the owners does not consent to the division of the land plot, then the issue will have to be resolved in court.

The agreement is made in writing. It states:

• Site address,
• its cadastral number,
• information about the owners,
• the procedure for redistributing land (in proportion to shares in property, equally or in some other way),
• procedure for distribution of expenses for registering property rights.

Types of land ownership

The Civil Code establishes the following types of property:

1. Individual property. A citizen owns, uses and disposes of property at his own discretion. Objects are not subject to division during a divorce. Third parties do not have the right to use the property without consent to use the property.
2. Joint ownership. The main reasons for the emergence of common property rights are acquisition during marriage or inheritance. Co-owners have equal rights to the property. Each owner has the right to an ideal share. This means that the size of the shares depends on the number of owners. If there are 3 owners, then each of them by default has the right to 1/3 share.

When receiving a tax deduction for a jointly owned property, the funds can be received by one of the owners in full.

1. Shared ownership. As with common property, a property has multiple owners. However, each of them is entitled to a specific share. The citizen has a title document that reflects the size of the part. A person can independently dispose of property (bequeath, donate). However, there are restrictions for renting or selling. It is necessary to take into account the opinion of co-owners.

State duty amount

The Tax Code establishes the following amounts of state duty:

• 50 rub. – in relation to lands intended for personal subsidiary farming, dacha farming, vegetable gardening, horticulture, individual garage or housing construction, with an equivalent type of permitted use, from the category of agricultural lands and other types of permitted use;
• 2,000 rubles – in other cases.

If you pay through the State Services portal, the discount will be 30%.

How to register a right in Rosreestr

The law establishes that cadastral registration and state registration of rights are carried out during the division of land simultaneously. To do this, submit an application in the prescribed form and the following documents to Rosreestr:

• title documents for land;
• applicants' passports;
• agreement of owners (or court decision);
• boundary plan;
• decision of the local administration to assign addresses to established landholdings;
• receipt of payment of state duty.

What is needed to draw up an agreement

The document must include the cadastral number of the plot, address, cadastral passport data. As well as the number and date of entry in the Unified State Register.

As a result, it is necessary to carry out all the required procedures with measuring the area and registering the land plot.

If the agreement can be drawn up with a notary within a few hours, the preparatory work will take about three weeks.

The main expenses await you during the registration of the land plot.

Sample cadastral passport for land. Photo: pravozem.ru

To draw up such a document, the parties must appear before a notary.

You must have the following documents:

• passports of all parties;
• right to property;
• conclusion of a psychoneurologist on sanity, capacity and adequacy;
• cadastral passport;
• extract from the Unified State Register;
• own, mutually agreed upon records on the desired area of ​​shares and their location on the land plot;
• a document confirming that it is legal to carry out legal transactions with this land plot (it is not state property, is not arrested, is not the property of a third party);
• a document confirming the absence of guardianship or trusteeship;
• pay a state fee of about 350 rubles (pay according to the current amount after consultation with a notary).

Let's sum it up

Dividing land ownership into two or more parts is usually quite feasible. Just remember that the minimum area of ​​land during division must comply with the standards established in the region. Thus, for growing a vegetable garden, the size of the plot is usually set at least 4 acres, and for country house or housing construction - at least 5 acres. Please check with your local administration for the specific minimum permissible landholding size.

About the author of the article

Elena Turkina Practicing trial lawyer. Lives and works in St. Petersburg.