Dividing an apartment building into 2 independent objects

When family life develops according to ideal canons, like: “they lived happily ever after and died on the same day,” jointly acquired property is a source of wealth and joy in the family. If life together does not work out and the spouses get divorced, it becomes a curse.

While separating cups, spoons and other movable belongings is still relatively easy, when it comes to real estate, people are simply stumped.

How to divide something that at first glance seems indivisible? An apartment? Dacha? House? The section of a private house in which a family permanently lives raises especially many questions. They pour in literally as if from a cornucopia:

• How to understand who is entitled to what share?
• Are spouses' shares always equal?
• What if the house was inherited by one of the spouses?
• What if it was registered in the name of one of the spouses, and the other spouse was involved in the construction and arrangement, or both together?
• What to do if, in addition to the husband and wife, children live in the residential property?
• What if one of the children is disabled?
• Is it possible to divide not only the monetary equivalent of the house, but also the premises itself, in fact?
• What methods of division exist?

And these are not all the questions that arise. In this article we will try to most fully illuminate the problem of dividing a private home during a divorce from a legal and practical point of view.

Home ownership

Russian civil legislation contains the concept of joint ownership. Family is a specific concept of common family members, in particular spouses. As for the husband and wife, everything that each of them buys or acquires during the marriage (except for inheritance and property received as a gift, but more on that below) is included in the joint property of the spouses.

At the same time, the termination of a marriage does not in itself become the reason for the termination of the fact of joint ownership of property. For example, after a divorce, the house still remains shared. And it will remain so for an indefinite time until it is divided legally.

That is, spouses can still reach mutual agreement and jointly dispose of the common house, or make a fair division, and then each dispose of their share (part).

ATTENTION! Joint property of spouses does not apply to children! That is, a house that belongs to the parents does not belong to the children (unless it was purchased or built with the participation of maternal capital).

This issue is regulated by Article No. 60 (clause 4) of the RF IC, and children are not subjects of the division of family property, regardless of whether the parents divide it due to divorce or just like that (according to the legal norms of the Russian Federation, spouses can divide property among themselves, without dissolving the marriage).

Community property in a marriage does not mean that either spouse cannot have personal property. For example, property donated by spouses to each other or to some third party is considered the personal property of the recipient of the gift and is not subject to division. The same applies to inheritance received under a will or line of succession. As well as property that the husband or wife owned before marriage.

Although, when it comes to home, there may be options. For example, before marriage, the wife had a plot of land with a dilapidated “barn”. During his family life, the husband, investing his earned money and personal labor, contributed to turning it into a comfortable estate. Such a house may be classified as joint property because the value of the property has increased significantly during the marriage. Such issues are resolved in court.

Some features of resolving a dispute over the division of an apartment in court

The division of an apartment in a mortgage is applied in the absence of a mutually agreed upon decision between the spouses regarding common property that takes into account the interests of both parties.

In this case, the court decision is made taking into account the impossibility of dividing the property in its natural form without changing the functional purpose.

This is due to the fact that the law classifies an apartment as an indivisible thing, even if it has isolated rooms (Article 133 of the Civil Code of the Russian Federation).

In other words, the court cannot draw a “border” in the apartment, dividing the spouses on opposite sides. At the same time, the court can determine the procedure for using residential premises if such demands are made in court.

The court has the right to establish shared ownership for spouses with the right of each to use common areas (kitchen, corridor and hallway, toilet, bathroom, etc.), as well as determine the procedure for using them.

It is possible to allocate a separate share of an apartment in kind only if it is actually possible to clearly separate the residential and non-residential premises of the disputed real estate. In this case, separate entrances to the housing must be equipped for each of the spouses.

Theoretically, this can be realized if, for example, the apartment is located on a plot of land (townhouse) and is located on the ground floor.

In addition, the living space must consist of at least two isolated rooms, and it is possible to create a separate entrance for the newly created property.

This can be achieved through redevelopment and reconstruction. However, it should be borne in mind that such work should not affect the safety of the entire building as a whole.

In this regard, the Plenum of the Supreme Court adopted a resolution according to which the apartment is not subject to natural division since it has the property of indivisibility.

Ways to divide a house. Agreements or court

Like most issues regulated by the RF IC, the problem of dividing a private house can be solved in two ways:

• Agree privately among yourself and draw up an appropriate notarial agreement that will have full legal force
• Draw up a statement of claim and allow the court to resolve insurmountable differences between spouses, based on legislative norms and rules

Let's look at both methods in a little more detail.

Agreement

The husband and wife independently determine the shares that each of them receives in the event of a divorce. According to the rules, they should be equal. However, spouses can also agree on unequal shares, taking into account, for example, children.

Although from the point of view of the law, children do not have the right to parental property, the law does not prohibit parents from taking their interests into account privately.

For example, a spouse leaving the family may transfer his share to the children in lieu of monthly alimony payments. Or leave the spouse, with whom the children live, a larger share in the house. Simply put, by agreement, spouses can agree on any method of dividing the house, or reimbursement of part of its value by the one who will continue to live in it.

This method is convenient and preferable in the sense that the internal affairs of a family (even if broken up) remain its internal affairs and do not require the intervention of government bodies. But it can only be applied when the conflict between divorcing spouses has not reached the “extreme boiling point” and people are still able to communicate constructively with each other.

Court

If the husband and wife cannot agree or suspect that the other party “wants to deceive them,” they will have to resort to the help of the court. One of the home owners, or both together, can sue. In this case, a joint statement is written.

It is better to submit an application to the territorial court at the location of the house (especially if it is joint). If one of the spouses files a lawsuit, he can do so at the place of residence of the other (the defendant).

Dividing a house does not have to happen at the same time as the divorce process. You can do this in advance, or, conversely, after the divorce. You have the right to choose a mode that is convenient for yourself, and you should do so.

For example, if the divorce is complex and is accompanied by several claims for alimony, the place of residence of children, and the order of meetings with them, it is better not to complicate the already complicated process with an additional claim, but to postpone the section “for later.” If there are no particular disagreements, it would be optimal to “sue” at one time, so as not to repeat the entire unpleasant procedure again.

The procedure for allocating a share in kind by agreement of co-owners

The allocation of a share in this manner is possible if there is agreement between the co-owners.

On the first step

it is necessary to obtain permits for the redevelopment and reconstruction of a residential building.

On the second step

it is necessary to carry out reconstruction so that a room intended for allocation is formed.

On the third step

it is necessary to order the preparation of a technical plan

, reflecting changes made to the design of a residential building.

The technical plan for the allocated premises is prepared by a cadastral engineer. Therefore, you need to contact a cadastral engineer or the organization in which he is an employee and conclude a contract. Please note that the cadastral engineer must be a member of a self-regulatory organization. Therefore, before signing an agreement, it is recommended to check the presence of the relevant person in the register of cadastral engineers. Some BTIs have a cadastral engineer on staff.

A ready-made technical plan can, in addition to paper, exist in electronic form, certified by an enhanced qualified electronic signature of a cadastral engineer. An electronic form is needed for the case when the technical plan is placed for temporary storage in an electronic storage facility maintained by Rosreestr. In this regard, the contract with the cadastral engineer must include a condition that he places the plan in electronic storage.

On the fourth step

co-owners enter into an agreement on the allocation of a share in a residential building. The number of copies must be equal to the number of co-owners plus one copy for Rosreestr. Each copy is signed by each co-owner. Notarization of the agreement is not required.

Please note that the cost of the allocated premises (or premises, if there are several of them) must be proportional to the allocated share. Most often, it is impossible to achieve such a coincidence in practice. Therefore, the discrepancy between the share and its value is compensated in cash. If the cost of the allocated premises is less than the allocated share, then the co-owners pay the resulting difference to the allocated owner. And vice versa.

By the time an agreement is concluded between the co-owners, the situation with the shares and their values ​​is already clear. In this regard, a condition on the amount of such compensation and the procedure for its payment must be included in the agreement on the allocation of shares.

On the fifth step

the allocated share must be registered in the cadastral register, as well as changes in ownership rights must be registered. Each of the co-owners must perform these actions.

The allocated owner registers the cadastral register and registers the ownership of the allocated premises, and the other co-owners register changes in the ownership rights to the premises remaining after the allocation.

To do this, you must submit to Rosreestr:

• statements
  from each of the co-owners;
• documents confirming the rights of co-owners to a residential building (certificates of ownership or extracts from Rosreestr);
• an agreement between co-owners in the number of copies corresponding to the number of owners of the house, plus an additional copy is drawn up for Rosreestr;
• applicants' passports;
• notarized powers of attorney, if documents are submitted by representatives;
• technical plan drawn up by a cadastral engineer. But if there is a technical plan in electronic form and it is placed in an electronic storage, the plan is not submitted in paper, and the identifying number of the electronic technical plan is indicated in the application.

For registration of property rights, co-owners and the separated owner pay a state fee. The state duty for the distinguished owner is 2,000 rubles, and for other co-owners - 350 rubles. When submitting an application and paying the state fee through government service portals, the state fee is calculated taking into account a coefficient of 0.7.

No later than 10 working days from the date of receipt of the application and documents, Rosreestr issues extracts from the Unified State Register of Real Estate:

• to the separated co-owner - for part of the residential building;
• the remaining co-owners - to the house, but with a changed share in ownership and a different composition of the premises.

The period for state registration begins on the next working day after the date of receipt of documents by Rosreestr.

Statute of limitations

According to the provisions of Article No. 38 (clause 7) of the RF IC, spouses are given three years to divide the common property among themselves. But this figure should not be taken unambiguously as a three-year period from the date of divorce.

Article No. 200 (clause 1) of the Civil Code of the Russian Federation explains that the period of validity of a claim is considered not from the moment of the occurrence of the event giving the right to file a claim, but from the moment the plaintiff becomes aware that his rights (in this case to common property) have been violated . Let's explain this with a real example.

Example from judicial practice 2021

Citizen A was married to citizen B for 12 years. During this time, the couple built a house. After the divorce, B remained living in the house, which A did not object to. She did not renounce the right to joint property, but simply went to live elsewhere.

He lived in a house with a new family and had two children. 8 years later B died. The inheritance (actually, this house) was to be divided among his new wife, mother and two sons.

However, A filed a lawsuit to restore her rights to half of the house as property acquired jointly during the marriage. The defendants (heirs B) insisted that the statute of limitations had expired, since 8 years had passed since the divorce.

The case was considered in turn in three instances. The territorial court satisfied A’s claim, the appeal sided with the defendants, and the Supreme Court, where the cassation appeal was filed, confirmed the correctness of the first instance and citizen A.

It was recognized that before the event preceding the claim (the transfer of the house by inheritance as the sole property of B), citizen A had no reason to believe that her ownership rights to half of the house, which belonged to her on the basis of joint ownership with B, were violated.

Therefore, the statute of limitations has not expired and the claim must be allowed because A did not declare her waiver of title in favor of B.

This precedent confirms the position of the Supreme Court regarding the statute of limitations regarding the division of joint property after divorce. From a legal point of view, material assets belonging to spouses in a marriage can be divided at any time.

As for the practical side of the matter, then, perhaps, it is more reasonable to deal with the division of property after a divorce in the “foreseeable future”, without postponing this issue for many years.

After separating, each spouse begins to build his own life independently. New people appear in it, new families are created. You can, of course, “get yours back” after 20 years, but then be prepared to face grueling legal proceedings and difficulties in getting your share in the house that once belonged to your family.

Rules and procedure for dividing an apartment purchased during marriage

The most typical case is real estate purchased after the official registration of the marriage.

Housing purchased during marriage, according to the Family Code, is joint property that is the common property of the spouses.

We emphasize that they do not fall into this category:

1. The apartment was purchased before marriage.
2. The apartment was inherited.
3. The apartment was received as a gift.

Apartments purchased before marriage, inherited or donated are indivisible, since they are assigned to only one owner on completely legal grounds.

Although there are exceptions. Read more in the article Division of inherited property.

Contents of the statement of claim

The requirements for statements of claim are more or less the same for all types of claims: business style, absence of errors and blots in the test, compliance with the general form of business documentation (“header”, title, main part, date and signature at the end). Writing method - handwritten or printed (previously documents were printed on a typewriter, now this can be done using a computer). All this is recorded in detail in Article No. 131 of the Code of Civil Procedure of the Russian Federation.

The application must indicate:

• Full and exact name of the court, plus sometimes the name of the judge
• Full names and addresses of the plaintiff and defendant (if the registration and actual addresses are different, both should be written)
• Cost of the claim (since the division of the house refers to property claims, and the fee for it is calculated depending on the price of the house, cadastral or market)
• Circumstances of the claim (data on marriage and divorce, data on the purchase of a house, the need for its division, additional information) with links to the attached documents
• Claim (to divide the house)
• Links to legislative norms giving rise to the claim
• List of attached documents, which must include: Copies of passports, marriage/divorce certificates
• Title documents for real estate (house) and documents confirming its value
• Duty payment receipt

And also (depending on availability and need)

• marriage contract
• separation agreement
• children's data
• and anything else that the court requires

A sample application can be found and downloaded on the Internet, or you can write it yourself with the help of a lawyer. All documents are submitted to the office in triplicate. After the case is accepted, the first meeting is scheduled a month later. Further, either the court makes a decision on division (it comes into force after another month, during which the defendant can challenge it), or schedules a new hearing if additional documents and evidence are required.

State duty

The amount of the state duty depends on the price of the claim and is calculated according to the rules of Art. 333.19 Tax Code of the Russian Federation. Using the table, you can do the calculation yourself.

Example: A claim for the allocation of a share from a house worth 2.5 million rubles.

The state duty is calculated as follows:

13,200 rub. (fixed payment) + 7,500 rubles (0.5 of the amount more than 1 million rubles).

The total amount of state duty on the claim will be 20,700 rubles

Is it possible to divide a house after a divorce?

In this context, we are not talking about allocating shares in property to spouses, but about the actual division of living space in accordance with these shares. That is, whether it is possible for the former spouses to continue to live in the same house, but no longer “under one roof,” but each in their own half, independent in fact and legally.

Yes, in some cases this is possible, but only a forensic construction examination can give a final answer.

Expertise

The actual division of the house is possible only if the requirements of housing standards and the functional purpose of the premises are met. That is, it depends on the size and layout of the house. The conclusions of the examination may be of a recommendatory nature regarding possible redevelopment. The examination may offer several options for the division or come to the conclusion that it is impossible.

For example, it is impossible to divide a house with stove heating if the stove is only in one half, and it is impossible to install a second analogue. It is impossible to divide a house into floors if it is not possible to provide an independent entrance to the floor. You cannot give the wife the kitchen, and the husband the living room and bathroom. It is impossible to divide a small house if after the division the area of ​​each part is less than the required living space standards. And so on.

How to divide a house after divorce?

If, from a technical point of view, the house can be divided into two equal, independent parts, the court decides to divide it into shares and allocates these shares in kind.

If division is possible, but the size of one independent part is smaller in area and does not correspond in size to the legal share, the court may decide on division in kind and monetary compensation. That is, the co-owner for whom the actual share turned out to be greater will pay a certain amount to the one whose share is less.

If actual division is impossible in principle, there may be a variety of alternative solutions (it is important that it suits both parties):

• Sell ​​the house and divide the proceeds according to shares
• Transfer the house to one of the co-owners and require the second to buy out the second’s share
• Continue to share the house, establishing an order that does not violate the rights of either party

But in any case, judicial division is carried out on the principle of fairness and equality of marital shares.

In judicial practice, there are cases when an unfinished house is divided. If it structurally allows for actual partitioning (with minimal or even no design changes), then it actually divides. If not, it is subject to division by alternative means. The price of such a house includes the price of materials needed to complete construction.

Share size

By default, marital shares are equal unless other proportions of division are stated in the marriage contract or agreement. But, of course, in practice there are exceptions.

For example, the court may allocate a larger share to the spouse who has minor children in his care. Especially if the child is disabled group I or II. Or reduce the share of one of the spouses if the second proves that he did not invest funds in the family budget, but, on the contrary, brought losses to the family.

This rule cannot be applied to a woman who gave birth and raised children without working. Also, physical inability to work (long-term illness, disability) is considered a valid reason that allows one of the spouses not to work and at the same time have an equal right to joint property.

Also, before proceeding with the division of joint property (including a house), the court allocates that part of the property that is considered personal (purchased before marriage, gifted, inherited). It doesn't share. The rest is divided into shares. If possible, the court establishes the order of the actual division (what exactly will go to whom).

If the house was purchased with maternity capital funds

This is a very special case. Such a house is not considered the joint property of the spouses, but the joint property of the entire family, including children. Consequently, it will not be divided into two, but into everyone. If a house is purchased or built using maternal capital, each child must have their own share in it.

ATTENTION! No housing transactions in which a share belongs to minor children are possible without the involvement of guardianship and trusteeship authorities. Including the conclusion of a voluntary agreement on the division of property or judicial division after a divorce.

The guardianship authorities check whether the child’s rights are respected and give their consent or do not give consent. In case of judicial division, the opinion of the guardianship authority can be taken into account when requesting that the spouse with whom the children remain live have a larger share in the house.

If there are children

The presence of children in most cases does not affect the order of division of property after a divorce. The financial rights of the child are protected by assigning alimony, but family property is a completely different matter. It belongs to the parents, and children have no right to claim it.

But the RF IC allows an increase in the share of the spouse, with whom the children remain after the divorce, in real estate (we are talking about a house). If the plaintiff intends to exercise this right, then it is important to draw the court’s attention to the presence of children. This should be specifically mentioned in the claim, or a separate petition should be filed.

Most likely, the share of the parent who remains with several minor children or with a disabled child will be increased. This should also be reflected in the claim.

Is the child's property divided?

Minor children also have the right to own personal property. Computers, musical instruments, and expensive high-tech toys belonging to children are not subject to division. Moreover, even if the house in which the family lives is received by the child as an inheritance from another relative, or given as a gift, it will also not be divided between the parents.

Property belonging to the child is transferred to the parent with whom he will live. In this case, the second parent is not entitled to any compensation.

ATTENTION! It is important to list all property belonging to the child in the statement of claim. This will save you from disputes and the need to prove this fact in court.

Clarifications from lawyers

1. Before you begin the process of allocating a share in kind in a private house, make sure that this is actually possible:
   the remaining owners agree to the allocation;
2. all existing extensions are legalized and have technical passports;
3. All the necessary communications have been carried out to the allocated part, and it has a separate entrance and access roads.
4. make sure that the allocated part is not subject to encumbrances or seizures.
5. In order to simplify the allocation procedure and save time, try to enter into an agreement with the other owners of the house. If all parties manage to reach an agreement, it must be formalized by a notary. Each participant is entitled to one copy of such a document, plus one more for the registration authorities.
6. If it is not possible to agree with other owners on the allocation of a share in kind, or the allocation is actually impossible , the owner who wishes to be allocated has the right to demand payment of compensation, the amount of which depends on the actual market value of the property.
7. The owners must agree peacefully regarding compensation for the cost of the share in monetary terms. If this is not possible, then the amount of compensation is determined by the judge after filing the relevant claim in court.
8. If the dependents of the owners of the house have minor children, people with disabilities and incapacitated people who need constant care , actually living and (or) registered in the house subject to allocation, it is necessary to contact the guardianship authorities. Representatives of social services, after inspecting the property, must issue a decision that the allocation being made does not infringe on the rights of this category of citizens.

Judicial practice of dividing a house when there is a child

Firstly, the presence of a minor child who lives with him gives the plaintiff the right to choose the court authority. A claim can be filed not only at the location of the house or the place of registration of the defendant, but also at your place of residence.

Secondly, judges quite often increase the share in the house for a parent of several children or one who cares for a disabled child.

ATTENTION! Any sale of real estate in which children live and are registered is possible only with the permission of the guardianship and trusteeship authorities. When parents, when dividing property, decide to sell the house and divide the money among themselves, a representative of the guardianship must be present at the court hearing. The court itself will call him. But in some cases, it is reasonable to inform the guardianship authorities in advance about the planned event, convince them that the child’s rights will be respected, and obtain permission to sell the house. It should be attached to the statement of claim, then the process will go faster.

If you still have questions regarding the division of a house after a divorce, the qualified lawyers of the Prav.io portal will be happy to answer them.