If you are interested in how to become the owner of not a share, but a room in an apartment, just type in a search engine the phrase “partition of apartment shared ownership.” For this phrase, the search engine will find you millions of pages with similar information (Yandex, for example, finds more than two million). It is difficult to obtain the necessary information from this multitude.
Here we will describe in detail and clearly the procedure for allocating a share in an apartment, how a share in common property differs from a share in a communal apartment, and what to do correctly in the event of selling a share in a communal apartment.
The concept of "communal apartment"
Today, such a definition as “communal apartment” is common in everyday life. But if we analyze modern legislation, this concept has no legal force. Therefore, when disclosing this housing issue, the term “communal apartment” should be used.
What is a communal apartment? One of the obvious disadvantages of the modern housing complex of the Russian Federation is that it does not clearly define the concept of a communal apartment. This leads to the emergence of numerous ambiguities and contradictions in the legislation, in particular, codes and laws in force in the territory of individual constituent entities of the Russian Federation.
Many lawyers and scientists have attempted to interpret the concept of a communal apartment, but even the most experienced lawyer will not dare to give an exact definition of this category of housing. If we analyze all the accumulated theoretical experience, we can derive a generalized definition.
A communal apartment is an apartment that consists of several rooms owned either under a social lease agreement or by right of ownership. At the same time, the key factor in communal living is the presence of two or more owners.
Of course, such an interpretation is formal in nature, but despite this, it does not contradict the RF LC. In addition, this point of view is confirmed by the classification of communal apartments, which is recorded in the Housing Code:
- apartments, living rooms that are used by tenants for living after the official conclusion of a social rent agreement with the state;
- apartments divided into rooms that belong to the owners by right of ownership;
- mixed-type apartments, which mean that both tenants under a rental agreement and the owners of the rooms live under one roof.
If you can't, but really want to
Look for compromises between desires and possibilities - compatible and inconsistent. A spacious room can be zoned with partitions, dividing it into guest and sleeping areas. Coordination will not be required if these are collapsible (temporary) partitions that do not reach the ceiling.
Without approval from neighbors and officials, you can designate the hallway and kitchen corner in the same way - with a microwave and electric kettle. But you will have to cook and wash dishes in a shared kitchen (agree with your neighbors about repairs to common property).
The same applies to sleeping space under the ceiling. According to Russian laws, such mezzanines in communal apartments must be temporary and dismountable. True, not all communal apartments can boast 3.5 m ceilings, and with a lower height, residential mezzanines are not the best option.
The concept of “common property of a communal apartment”
A communal apartment is not only living rooms, but also additional property that is of a common nature. All residents of a communal apartment, without exception, can use this usable area, since the collective property belongs to them on the right of shared ownership.
The common property of the owners of rooms in a communal apartment implies the imposition of certain rights and obligations on the participants in legal relations. Namely, Article 43 of the Housing Code of the Russian Federation imposes on the owners of rooms the burden of expenses required for the maintenance of common property in a communal apartment.
The financial costs of each owner are calculated using a fairly simple formula. The share of expenses that are mandatory is calculated taking into account the share of common property that is allocated to the owner in accordance with the legislation of the Russian Federation. Accordingly, the greater the share of common property, the greater the owner’s costs for maintaining common property in a communal apartment.
The common property consists of several categories of utility premises:
- kitchen space where collective stoves and plumbing are installed;
- corridors in which owners have the right to install furniture and other property, but without infringing on the interests of neighbors in full accordance with their share;
- bathroom or shower;
- toilet;
- change house and any other utility room.
None of the residents has the right to prevent other residents of the apartment, including tenants, from using common property, which is secured by the right of common shared ownership. In case of such prohibitions, a citizen has the right to appeal to a court, which will determine the legality of such behavior.
What are the dangers of illegal redevelopment?
In short, financial losses (indirect and direct).
As a resident of St. Petersburg, well acquainted with the realities of the local real estate market, I will say: illegal (unapproved) redevelopment is by no means an obstacle to buying, selling, or renting. Lately, even mortgage banks have turned a blind eye to minor violations. But an illegal “apartment within an apartment” can only be sold for the price of a share (of a room), even if it is well renovated.
The most unpleasant case is a court decision ordering the premises with illegal redevelopment to be restored to their original condition. Moreover, the initiators of court decisions on this matter are most often the neighbors - below and to the side. Even if you are friends with the current ones, it is not a fact that your solution to the housing issue will suit the new ones. Owners and residents change frequently here, and each new one is a source of increased risk).
And one more thing: Many ancient buildings themselves are not in the best condition. Redevelopment with violations accelerates the deterioration of building structures and can lead to emergency conditions. And of course, in the event of an emergency, owners of apartments with illegal alterations almost always turn out to be “extreme”.
Ownership of common property in a communal apartment
This aspect of cohabitation is discussed in more detail in Art. 41 Housing Code of the Russian Federation. That is why all practicing lawyers turn to this legal regulation in order to correctly interpret all controversial issues that arise.
According to the presented article, living rooms in a “communal apartment”, which have the status of isolated ones, are recognized by legislative norms as independent objects of property rights. In other words, legal acts oblige the state registration of all residential premises when carrying out legal transactions with the specified type of property and in other cases regulated by the federal legislation of the Russian Federation.
As for the issue of common property, in this case the premises are given the status of common shared ownership. The logical conclusion follows from this rule that state registration of the right to common property in such situations is not provided for by law.
The right of ownership extended to common property in a communal apartment arises due to the fact that the owner has the right of ownership to isolated living rooms.
In addition, it is interesting that a communal apartment itself is not recognized as a separate object of ownership. This rule was derived from the fact that only living rooms are recognized as the object of ownership in such apartments. The rest of the useful property of public use is in shared ownership.
Here another question arises - how is the transfer of a share of common property to the newly created owner carried out? The answer is simple. The right to a share in a communal apartment arises precisely at the moment when the new owner is endowed by law with the right of ownership of the acquired living rooms in the process of purchase and sale, donation, inheritance. In this case, the size of the share of the new owner must fully correspond to the size of the share of the common property of the old owner.
LEGAL: refreshing renovation
Step 1. Dismantling
To get rid of the characteristic odors of an old apartment, it usually has to be stripped down to the concrete and brick (the latter can sometimes serve as interior decoration). The most expensive component of renovating a room in a communal apartment is the floors (be sure to get rid of debris in the space between the joists, under the joists).
Tip: Changing the floor, if you do not affect the beams, does not require approval. But, firstly, inform your neighbors below about the upcoming renovation. Secondly, agree with representatives of the management company and together take photographs of the condition of the ceilings in the lower apartment. After all, it may turn out that they have long since cracked and crumbled (and there is no need to repair them later at your expense). If the neighbors won’t let you in, that’s also great, record this fact in the deed.
Step 2: Replacing the door
Unlike an ordinary apartment door, your door should be lightweight (since it is mounted not in a solid wall, but in a partition), have good soundproofing properties, have a door peephole and a hermetically sealed sealing circuit - to protect against the penetration of “household” odors.
Fact: According to fire safety requirements, metal entrance doors must open outward. But this is in apartments. If we are talking about a communal apartment and a narrow corridor, choose a door that opens inward.
Step 3: Soundproofing and ventilation
In a spacious room with massive walls and high ceilings, it is much easier to make high-quality sound insulation than in a typical “panel”. If there are noisy neighbors upstairs, the ceiling in the old building can be easily “lowered” by 10–15 cm to increase noise insulation and hide communications.
Restrictions imposed on room owners in communal apartments
The legislation of the Russian Federation establishes the principle that the fate of a share in a communal apartment in common property completely copies the ownership of the residential premises. In other words, it is impossible to alienate a share regardless of the room in a communal apartment. This rule is also confirmed by the fact that common property cannot appear in civil circulation as an independent object of property rights.
It is also impossible to alienate individual parts of the usable area of common property, which is regulated by law as shared property. The only thing that the owners of living rooms can do is to add common property to their property. Such modifications occur through redevelopment, refurbishment and reconstruction of premises.
Actions aimed at changing the property of collective use through redevelopment may cause the area of common use to be reduced in size.
In order not to violate the legitimate interests and rights of other citizens living in a communal apartment, the owner must obtain written consent from all homeowners. Only in such a case will codification actions in common shared ownership be recognized as legal.
In addition, redevelopment and refurbishment of common property in communal apartments in order to improve living conditions can occur by decision of all owners. An example is the case when the owners want to expand the kitchen by adding some corridor area. However, such transformations will be recognized as legal only if it is possible to obtain permission for such capital actions from local self-government bodies. To do this, at the place of request, you must provide a package of documentation specified by the Housing Code of the Russian Federation.
If local self-government bodies do not issue permission for reconstruction or redevelopment, then any changes will be considered uncoordinated. This will entail the imposition of liability on the owners, in particular, the court may oblige the owners to restore the previous appearance of the common property before the installation actions were carried out. At the same time, the period for restoration work is set at the discretion of local self-government bodies, since legislative acts do not provide any clear explanation in this regard.
Author of the article
Room donation agreement form
A deed of gift for any piece of real estate is drawn up in writing, because the document will be required for subsequent state registration of the donee’s property rights. Notarization is usually not necessary, but when alienating shares, the signature of a notary is always required, and the parties sign in his presence.
In addition to the usual (real) contract, the donor has the right to draw up a consensual agreement - a contract of promise of gift, according to which the real estate can be transferred to himself only upon the occurrence of a specific date or event: the recipient receives a diploma, wedding, etc.
The conditions for the commencement of execution of the contract are determined by the donor, but the consent of the donee is also required: on the basis of Art. 573 of the Civil Code of the Russian Federation, he can refuse the transaction at any time before receiving the gift.
How to correctly draw up a donation agreement for a share of an apartment and avoid mistakes?
Is giving by proxy possible and what are the risks for the donor? Deal Features
When do you have to allocate shares?
The allocation of a share will be required in the following situations:
- owners constantly conflict, for example, in the presence of bad habits or discomfort caused by various means;
- owners are complete strangers who want to own their space regardless of their roommate;
- if you wish to dispose of the area without the need to coordinate actions with other apartment owners;
- if necessary, sell a share.
What to do with troublemakers?
The rules of residence and the fight against violators are interconnected. All people have the right to have their rights protected. If the problem cannot be resolved peacefully, then the court will help to do this. To do this, you need to file a claim.
Disputes often arise over violations of the rights of residents to common areas. Once the sentence is passed, bailiffs must monitor the fulfillment of obligations. If it comes to silence, then you need to contact law enforcement. You must submit your application in writing. These bodies resolve issues regarding smoking in public places, storage of toxic components and damage to property.
In case of illegal redevelopment, which may be a threat to the integrity of the object, you need to contact the BTI. It is advisable to maintain friendly relations between neighbors, otherwise legal disputes will escalate the situation.
Arbitrage practice
Courts rarely satisfy the claims of plaintiffs who want to invalidate gift agreements and return property.
But there are also examples of decisions in real cases where people managed to get their property returned:
- Decision No. 2-3152/2019 2-3152/2019~M-2060/2019 M-2060/2019 dated June 4, 2021 in case No. 2-3152/2019;
- Decision No. 2-1752/2019 dated May 8, 2021 in case No. 2-5218/2017;
- Decision No. 2-1472/2019 2-1472/2019(2-6977/2018;)~M-6930/2018 2-6977/2018 M-6930/2018 dated June 5, 2021 in case No. 2-1472/2019 .
Advice: it is better to hire an experienced lawyer in advance who will help you get the deed of gift cancelled. Without a competent legal justification, courts rarely satisfy demands.
Subtleties of premises privatization
Privatization applies only to premises rented under a social tenancy agreement. The tenant can transfer one or more premises into his own ownership, but not the communal apartment as a whole.
To carry out privatization, the consent of all family members will be required. If at least one of them does not want to become an owner, then he must provide a notarized refusal.
If minor children live in the room, then the consent of the guardianship and trusteeship authorities will be additionally required. Their decision depends on arguments in favor of the interests of the child. The following requirements must be met:
- the child will be provided with housing equivalent to the previous one;
- sanitary and hygienic requirements will be met at the new location.
During privatization, the consent of neighbors is not required.
