Share in an apartment. What it is
According to Article 244 of the Civil Code, property can be either shared or joint.
Joint ownership is when shares in an apartment are not designated in any way . For example, if housing is purchased by spouses, but is registered in the name of one of them, this does not mean that he is the owner of the apartment. By default, it is joint property between husband and wife. During a divorce and division of property, the judge will divide the apartment equally, but may deviate from equality of shares if:
- the child remains with one of the parents;
- one of the spouses invested a large part in the apartment (for example, sold pre-marital property).
Shared ownership is the ownership of an apartment divided into shares . Such property may appear for various reasons, for example:
- the apartment was inherited by several heirs;
- purchased or accepted as a gift by several people;
- separated by spouses.
In this case, the shares are always indicated in the apartment certificate, for example, ½, 1/3, etc.
Attention! A fractional number is not at all a proportional number of square meters, as many people think, it is part of the right to own an apartment .
For example, the owner of a 1/3 share of a sixty-meter apartment does not have the right to fence off 20 meters and settle there.
Who can live in which room can only be determined in two ways:
- agree among themselves;
- ask the court to decide the procedure for using the living space.
But even in the case of litigation, it is not always possible to determine the order of use of housing , for example, if a two-room apartment has three or more shareholders, the judge will not divide the rooms, he will simply refuse the claim due to impossibility. Therefore, in most cases, disputes about shares are resolved simply - by exchanging or selling the entire apartment .
From the point of view of law and reality
From a legal point of view, owners of a smaller share are protected much less. The fact is that Article 252 of the Civil Code of the Russian Federation
, provides for the possibility of owners of a larger share in court to recognize the share as insignificant and buy it back. But the law does not apply in the opposite direction: the owner of even the smallest share cannot force others to buy it back.
It would seem that the law provides for the right to sell a share to other persons, having first offered it to the co-owners in writing and given them a month to think about it. In this case, the price offered to other persons must not be lower than that offered to other owners.
But in fact, it is simply impossible to allocate 1/6 of the share in a one-room apartment in kind. Therefore, the amount for which it can actually be sold is extremely small. Our hero certainly would not have been able to solve his problems with the proceeds.
How can you dispose of your share?
According to Article 244 of the Civil Code, your part of the apartment can be:
- sell or donate;
- bequeath;
- lay down
However, since this is still a share, and not the entire apartment, it will not be possible to sell it without demand. Article 250 of the Civil Code established the advantage of co-participants in purchasing a share upon its sale. For example, if you are going to sell your share, you must first offer to buy it from you to the other co-owners of the apartment at the announced price . Moreover, the proposal must be written, for example, in a registered letter with notification .
Please note: You can give, bequeath or pledge your share without asking .
If you are faced with the question of whether to sell or donate a share , you need to consider several nuances:
- if you own the share for less than 3 years, you will need to pay 13% tax on the sale;
- when making a gift, the donee will pay the tax (close relatives - children, parents, husband/wife - do not pay tax);
- a gifted share will not be divided between spouses during a divorce , unlike a sold one (this means the case when the owner of the share alienates it in favor of his child, who is already married).
But before disposing of a share that is not defined (joint property), it must first be determined .
Bottom line
As you can see, the situation is not simple. Theoretically, it would be possible to conclude a rental agreement for 1/6 of the share with the co-owner. This would make it possible to smooth out the costs of maintaining the share and receive a small amount each month. But in fact, this is just a ridiculous amount in exchange for the fact that the owner of the share will not be able to use it.
If your neighbors refuse, you can be forced to pay for the use of your property in court. But, given that we are talking about a small share and little money, we still need to think about whether it is worth it. However, you can wait a little and recover funds for the past three years, and this is a more serious amount.
What do you think about this? I invite you to participate in the discussion and thank you for your attention. Take care of yourself.
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.
Are there restrictions on property ownership?
To answer the question of how many apartments one person can own individually, it is necessary to refer to the Civil Code of the Russian Federation.
The Civil Code of the Russian Federation regulates property relations between individuals and legal entities, and this problem is also covered there. So, Article 213 of the Civil Code of the Russian Federation, which specifies the rights of ownership of property by individuals and legal entities, states the following:
- the amount of property that citizens and legal entities can own is unlimited;
- the value of the property also has no restrictions.
Exceptions are spelled out in Article 1, Paragraph 2 of the Civil Code of the Russian Federation, and they relate to violations of the rights and interests of other legal property owners.
Thus, we can unequivocally answer the question posed: yes, one person can own several apartments on a property basis.
In order to find out what property is owned by a person, you need to contact Rosreestr for an extract. All information about registered immovable properties is contained there. This information is confidential and cannot be provided to any person upon request. To request an extract from the Unified State Register, you must have good reason. They can do this:
- the owner himself;
- his confidant;
- presumptive heirs;
- representatives of government agencies.
To obtain a certificate, you will need to pay a state fee. The certificate is valid for 30 days.
Donation of a share in an apartment
This is the most profitable deal between close relatives. Notify about
There is no need for donations from other shareholders, and relatives do not pay gift taxes. Donation occurs in two steps:
- a deed of gift is drawn up;
- registered in Rosreestr.
The agreement for the donation of a share, that is, a deed of gift, is drawn up quite simply - it describes who is giving what to whom . The contract describes not the share, but the entire apartment, but the size of the share is indicated. Gift form.
After the deed of gift has been drawn up, it must be registered with Rosreestr . You can come to both the Rosreestr office and the MFC. In addition to the deed of gift, you need to take the passports of the donor and the donee and a certificate of share.
Relinquishment of a share in an apartment in the event of a gift is possible at any time . Only the donee can refuse without reasons, while the donor, having signed the deed of gift, can refuse only if his financial situation has worsened and donating a share will deprive him of his last home.
The deed of gift can subsequently be canceled if the donee encroaches on the life or health of the donor. But this must be a court decision, supported by a verdict .
Refusal is also possible when it is decided to privatize the apartment.
If you have not yet privatized an apartment , then it is worth reading here .
The Supreme Court explained in which cases the size of the obligatory share in the inheritance can be reduced by the court
On November 5, the Supreme Court of the Russian Federation issued Ruling No. 5-КГ19-181 on a dispute about reducing the obligatory share of an heiress by law living in a two-story house, the area of which significantly exceeded the size of the disputed housing in which the heiress lived under the will.
In April 1999, Nadezhda Vorobyova got married and began living in her husband’s apartment. In July 2013, her husband drew up a notarized will, in which he bequeathed all his property to his wife. Three and a half years later, the man died. The inheritance included a Moscow apartment, two plots of land with a residential building, one of which was purchased during the Vorobyovs’ marriage.
Subsequently, the widow filed an application for acceptance of the inheritance on all grounds of inheritance, including by will. However, old-age pensioner Irina Kharitonova, who lives in Yekaterinburg with her family and grandchildren, made the same application to accept the inheritance. She was the daughter of the deceased from another marriage and therefore claimed an obligatory share in the inheritance. In this regard, the notary refused to allow Vorobyova to perform a notarial act until the case was resolved by the court.
Nadezhda Vorobyova filed a lawsuit against Irina Kharitonova to reduce her obligatory share of the inheritance for the house and land plot to 1/8 of a share, and for another plot to 1/16 of a share. She also asked the court to refuse to award a compulsory share in the apartment, which was her only home, due to the fact that the defendant owned other real estate (including a two-story house that significantly exceeded the area of the disputed apartment). Nadezhda Vorobyova also referred to the fact that she receives an old-age pension and is a disabled person of the second group. In addition, the woman noted that the defendant does not have a significant interest in the use of the disputed property due to her intention to sell her shares to third parties.
The court rejected the claim, pointing out that there were no grounds for reducing the heir’s mandatory share by law in accordance with Art. 1149 of the Civil Code of the Russian Federation. The appeal upheld the first instance decision.
In a cassation appeal to the Supreme Court of the Russian Federation, Nadezhda Vorobyova asked to cancel the court decisions as illegal.
After studying the materials of the case, the Supreme Court with reference to paragraph 4 of Art. 1149 of the Civil Code of the Russian Federation noted that in a number of cases the court may, taking into account the property status of the heirs entitled to the obligatory share, reduce the size of the obligatory share or refuse to award it. For example, if the exercise of the right to an obligatory share in an inheritance will entail the impossibility of transferring to the heir under the will property that the heir entitled to the obligatory share did not use during the life of the testator, but the heir under the will used for living or used as the main source of funds to existence.
“Thus, this legal norm gives the court the discretionary powers necessary for the administration of justice to determine, based on the actual circumstances of the case, the possibility or impossibility of transferring the specified property to the heir under the will, as well as to assess the property status of the heirs,” the definition noted.
As the Supreme Court emphasized, in the case under consideration, one of the legally significant and subject to establishment circumstances was the court’s clarification of the question of whether the exercise by the law of the heir’s rights in relation to the inherited property would lead to the inability of the heir under the will to use the property that he had previously used during the life of the testator for accommodation. However, the court of first instance left such circumstances without investigation and legal assessment.
“The court, in justifying its refusal to satisfy Nadezhda Vorobyova’s claims, referred only to the fact that at the time of the opening of the inheritance, the defendant Irina Kharitonova was disabled, and therefore her obligatory share cannot be reduced. Meanwhile, this circumstance could not serve as an unconditional basis for refusing a claim to an heir claiming to reduce the obligatory share of another heir, and was subject to assessment by the court along with other evidence characterizing the property status of the defendant in this case,” the Supreme Court noted. In this regard, he overturned the decisions of the lower courts and sent the case for a new trial at first instance.
Commenting on the Court's ruling, lawyer Stanislav Izosimov of the Leningrad Region Administration called it timely. “Previously, in judicial practice there was a tendency to refuse claims to reduce the mandatory share. Meanwhile, paragraph 4 of Art. 1149 of the Civil Code of the Russian Federation provides for the possibility, under certain circumstances, of reducing the obligatory share. All circumstances that should be assessed and established to reduce the mandatory share are clearly stated in the above rule. There should be no difficulties in its application, since it is quite simple and clear,” he noted.
According to the expert, the heir’s right to an obligatory share is not absolute and the courts must establish a balance of interests through the active application of the above rule. “There is nothing extraordinary in the commented definition; it simply shows that the courts do not always want to read into the rule of law that is subject to application. Consequently, legally significant circumstances for a particular dispute are not established or assessed. The RF Supreme Court corrected only obvious errors that led to a factually unfounded refusal to satisfy the claims. The courts simply referred to the fact that the defendant is disabled and that the mandatory share cannot be reduced, but this only indicates that they failed to cope with the function entrusted to them to resolve the dispute on the basis of the correct application of the law,” believes Stanislav Izosimov.
Lawyer of the Moscow AB "Infralex" Irina Zimina noted that the Supreme Court has formed the approach that the courts should follow when using their discretionary powers when making decisions in cases of reducing the size of the obligatory share in the inheritance in accordance with paragraph 4 of Art. 1149 of the Civil Code of the Russian Federation. “On the other hand, this approach must be taken into account by the parties when forming a legal position on the case. After all, it is obvious that in the further resolution of such disputes, the courts will clarify the property status of the heirs, and also determine, based on the actual circumstances of the case, whether it is possible or impossible to transfer the inherited property to the heir under the will in whole or in part,” noted Irina Zimina.
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.
