Division of a house with a plot for two owners. Stages, methods and examples (projects)

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Many people do not understand the difference in the concepts of “division of property” and “allocation of a share in kind in a private house.”

The second means that one of the owners takes part of the property into individual ownership.

That is, he receives property that he has the right to dispose of without the consent of other owners.

But for this procedure certain conditions must be met.

Therefore, this procedure mainly applies to residential buildings rather than apartments.

Problems of joint ownership of a house and land

The situation when several owners own a house and a plot is not simple in itself. Especially when the co-owners are in hostile relationships and often simply cannot come to agreements on everyday issues.

However, since the real estate remains in shared ownership, they often need to make some general decisions regarding:

registration of new residents;
carrying out repair activities;
reconstruction of technical networks.

In complex relationships, this is quite difficult to do, or even impossible, and most owners try to allocate their share by dividing property.

This can be done by separating a part of the house and the territory underneath it, in other words, through real division.

What documents are required, design features

In order to allocate part of the property, its owners will need to provide technical documentation for the premises as well as papers on ownership

The law defines the main list of documentation necessary for the allocation of part of the property.

Each individual case should be considered separately and additional paperwork may be required.

However, this procedure will require the following documentation:

Technical passport of the premises.
All documentation confirming the right of ownership of real estate, including the territory of the land on which the residential building is located.

In addition, experts may request the following documents:

Copies of the statement of claim and documentation present during the trial. As well as the documents attached to them.
House book, which confirms the presence of additional residents other than the owners.

The process of allocating a share of property in kind is quite a difficult task, especially when the owners do not agree to it.

But when this procedure is justified and all documents are in order, such a step can become a solution to serious problems. In any case, this is a good investment for the future.

For more information about allocating a share in kind, see the video:

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Discussion: 4 comments

Vyacheslav says:
01/02/2019 at 09:48
Hello, I am in the process of separating, the judge told me that it is not possible to segregate, since there is no separate exit in the house, we have a house with 4 apartments. Each apartment has a separate plot of land, not yet privatized. Is it possible in court before the examination to pose the question that if I build an extension in the future, I should ask for a share to be allocated now. And can you provide links to regulations where kitchen and bathroom facilities are required?
Answer
Tatyana says:
04/27/2019 at 15:29
We have 1/2 of a residential building on a plot of 1004 sq. m. My share after receiving the inheritance was 1/4. What is the procedure for allocating a share for subsequent sale? I have a property document. other owners, in accordance with the law, were sent postal notices of intent to sell. they refused. I posted an ad for sale. a buyer has been found and wants to alienate this share. what should be my next steps?
Answer
Irina says:
11/19/2019 at 20:50
The residential building, which is in common shared ownership, was divided by court order. Both residential premises have a separate entrance. They also changed the type of permitted use of the land plot from individual housing construction to mms. And then everything stopped. The newly formed apartments in the mfts are denied cadastral registration .The court refused the application to establish a legal fact. Tell me what can be done in the current situation
Answer
Ivan says:
07/23/2020 at 00:30
Are there any legislative acts that should help avoid this method of division in most cases, because most often they are fraught with conflict situations due to the cohabitation of several families?
Answer

What is a real partition?

Real division (allocation of shares) is the transfer of parts of the home ownership into the ownership of each participant in the common shared property in proportion to his share.

Division entails the termination of common property for all its participants. The allocation of a share of a house is characterized by the fact that one or more owners leave, while for others the relations of common ownership are preserved.

The division of the house begins with determining the size of the shares and the people who have rights to the share. In case of divorce, the owners of the shares will be the spouses, and in case of inheritance, accordingly, the heirs.

The real division of the house and land is permissible and possible only when legal and technical possibilities exist. Real estate objects, including a residential building and a land plot, can be classified as both divisible and indivisible things.

How to determine the order of use in shared ownership

The procedure for determining the order of use is as follows:

The co-owners can determine the order of living in the apartment by oral or written agreement among themselves on a voluntary basis.

Even if the co-owners are not members of the same family, good human relations have not been canceled.

And you can always reach an agreement through negotiations without any negativity. It's all simple. Someone occupies one room, and someone else.

Or, during a divorce, the former spouses divide the apartment in half, and each of them becomes the owner of ½ share in the apartment.

But if there is a child and he stays with his mother, then the court usually decides to give them most of the apartment.

And the distribution occurs in the following proportions: the former spouse will receive 1/3 of the apartment, and the former spouse and child will also receive 1/3 each. Which in total is 2/3 of the apartment or most of it.

In this case, if the apartment is two-room, then the ex-wife and child will occupy a large room with a balcony, and the spouse will occupy an isolated small room.

If a three-room apartment is divided, then the former spouse will get a large room with a balcony, and the wife and child will get the remaining two smaller rooms.

The kitchen, hallway and bathroom will remain in shared use.

After all, by dividing an apartment into shares, people receive the same communal apartment that residents of big cities tried to get rid of in the late nineties and early 2000s.

At that time, communal apartments located in the very center of any large city.

They were actively bought by the “new Russians”. And their residents received a full-fledged apartment in exchange for their little room, but on the outskirts of the city.

This suited everyone. Because residents of communal apartments could not even dream of such happiness in the form of a separate, isolated living space.

Therefore, they literally accepted the apartment that literally fell on their heads in a residential area of the city as a gift of fate. And they literally thanked the “new Russian” businessmen as their saviors.

But the most interesting thing will happen when the Court divides a one-room apartment between members of the same family with a child.

The court will most likely side with the parent remaining with the child.

And he will simply deny the ex-spouse the right to use the residential premises. Leaving him as the owner, but without the right to live in the apartment.

In fact, the ex-husband will remain living on the street. And it’s absolutely legal.

And most likely, when his personal savings, spent on rent, run out.

He will be forced to put his share in the apartment up for sale. Having lost significantly in its real price. Since the one who first sells his share loses the most.

After all, it is on this that those people who buy shares in apartments make money.

But having no money to support the ex-spouses, they easily take such a step, understanding. That their actions will cause a number of troubles. Both to my ex-wife and to my child.

After all, strangers who bought a share in the apartment. They may treat the seller's former family members differently. And this current situation can have a completely different outcome.

But the fact is that they will try to infringe on the seller’s former family members in their rights and persuade them to either sell their part of the apartment to new owners. Or to a joint sale and division of the proceeds according to the size of the shares.

This is a fact that is obvious from the very beginning.

After all, then why buy a share in such an apartment at all? Where it is known that people already live.

How to divide a house? And what can be shared and what cannot?

The actual possibility of dividing a house and land does not always coincide with the legal possibilities. The divisibility of a property, from a legal point of view, has an independent meaning and does not necessarily coincide with the real possibility of dividing walls and rooms.

All existing real estate objects are recognized as physically divisible, but they are legally divisible only if it is possible to divide them into parts in such a way that each part maintains homogeneity, that is, remains “residential” for its intended purpose and so that its use does not violate the rights of others copyright holders and users.

In other words, when dividing a house, each owner must have his own entrance, kitchen, bathroom, etc.

For the correct division of real estate, the law introduced the concept of Signs of residential premises:

appointment;
suitability for habitation;
isolation;
belonging to the category of immovable objects.

Of course, the last of the signs is the main one, however, the absence of any of the listed signs gives grounds to consider the premises non-residential.

It is unacceptable to divide a house as a result of which an independent part is formed that is not intended for living (for example, a built-in garage or just a kitchen).

How to give up a share in an apartment

If the apartment has not yet been privatized, but the decision to re-register has already been made, the housing is divided in equal parts among everyone who is registered in the apartment . As is known, adults can participate in privatization only once.

Sometimes adult children wonder how to give up their share in an apartment in favor of their parents. Such questions are not uncommon if, for example, it is possible to obtain a service apartment under a military certificate or under the Housing program. There are two options for the development of events:

you can be discharged from your parental home before privatization;
write a refusal of privatization from a notary.

In this case, the apartment transfer agreement will be drawn up only with the parents. But the situation is completely different if the child is a minor . Even if the guardianship council allows the child to be discharged to another home, the transaction may still be subsequently declared invalid. Therefore, it is better not to take risks and include the child in privatization.

Sequence (stages) of the section

Before starting the procedure, you should understand whether there is a possibility of its fragmentation. For these purposes, it is necessary to carry out an examination that will confirm or not confirm these possibilities.

The examination will also answer another question – whether the structure meets absolutely all technological conditions. In addition, in the final decision, at the request of the co-owners, the specialist has the right to add information about the actual price, redevelopment alternatives available for this property, and the costs of these types of work.

After approval of the examination, the owners are required to obtain permission for redevelopment. This can be done at local governments.

Owners will then be able to apply one of the alternatives:

Allocation of shares;
Dividing the house into 2 buildings.

This is only possible when divided into separate rooms with a separate entrance.

Division of land under the house

When dividing home ownership, the question of the divisibility of the land plot inevitably arises.

The legal (legal) meaning of the criterion of divisibility of a land plot means that a plot is recognized as divisible if, as a result of the division, independent plots are formed, the permitted use of which can be carried out without transferring it to land of a different category and the requirement for the minimum size of a land plot established by legal acts of local government bodies (Article 11.2; 11.4; Clause 1, Article 33 of the Land Code of the Russian Federation; Article 1182 of the Civil Code of the Russian Federation).

In other words, the possibility of its actual division directly depends on the area of the land plot. For example, if a land plot with permitted use for individual housing construction (IHC) has an area of 6 (six) acres, then theoretically it can be divided into two plots of 3 acres each. Division of such a land plot into a larger number of parts is legally unacceptable. The exception is cases of division of land plots on the basis of judicial acts.

How are private houses divided?

If it is not a semi-detached building, in practice it is quite rare to be able to divide the house so that all parties are happy.

The law provides two methods:

Settlement agreement

This is the most cost-effective (both in terms of money and time) option for owners. In this case, the house does not lose its position as a whole object, but is simply re-registered as shared ownership.

In the case of a peace agreement, everything is done on the basis of oral consent or a written agreement between the owners. It is more correct to choose the latter and have the contract notarized, which can eliminate all disputes in the future.

The contract stipulates the following points:

ongoing maintenance costs;
communal payments;
procedure for using the common area.

When deciding on a peace treaty, it is important to consider how the division of the territory will be carried out. However, if everything is formalized as joint residence, this section is optional.

Even in this case, the property is divided into two premises. In certain situations, redesign will be necessary. Any redevelopment must be legalized and a corresponding specialist report must be drawn up.

How to register a share in an apartment

As already explained, the share can be determined either by agreement or in court.

This is required by Article 244 of the Civil Code.

If all co-owners of a common apartment decide to amicably determine their shares, you need to do this:

draw up a written agreement on the determination of shares;
register it with Rosreestr.

Previously, all real estate transactions were notarized, but now this is not required. But it's not prohibited either.

And if there is no agreement among the partners, only the judge has the right to determine the shares . By default, shares in a common apartment are equal. But an increase in someone’s favor is also possible if:

money was not invested equally in purchase or construction;
one of the co-owners improved the condition of the apartment at his own expense (for example, installed water supply).

In this case, in Rosreestr the main document will not be an agreement, but a court decision.