Procedure for using residential premises in common shared ownership

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Russian legislation regulates two types of housing ownership. These include:

1. Share. The property is divided among the participants in percentage terms.
2. Joint. There is no division into parts, all participants are 100% owners.

The law allows you to change the legal status of housing, from shared to shared. This requires the desire of the owners. Separation occurs through an agreement. If one of the owners refuses to allocate shares, then the procedure is carried out through the court.

Definition of shared ownership

The civil legislation of the Russian Federation defines shared ownership of property as common property, the shares of the owners of which are determined by agreement or in court.

If the shares are not established by agreement and their determination is impossible on a legal basis, they are considered equal.

Participants in shared ownership have the right to dispose of their part of the property at their own discretion. The owner can pledge his share, donate it, sell it, bequeath it, or otherwise dispose of it.

Read about common ownership of an apartment.

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The simplest and most comfortable way to resolve the issue is to draw up an agreement. This is possible if the spouses do not have serious claims against each other and can peacefully divide what they have acquired over the years of marriage, without resorting to litigation. This is regulated by Article 36 of the Family Code of the Russian Federation. Despite the fact that the law does not approve the exact form of such an agreement, a number of requirements must be met when drawing it up - otherwise it may simply be invalid.

There are a couple of important points to note right away. Jointly acquired property is considered to be property acquired by the family after marriage. That is, it is pointless to apply for an apartment that a spouse bought long before the meeting of his other half, but you can compete for a car or financial asset given as a wedding gift.

It is worth mentioning right away that not only expensive property is subject to division - everything that you purchased or received as a gift as a couple can and should be divided. This includes a refrigerator given by my aunt for a wedding, jewelry, interior items, in a word, any things. In this case, gifts or inheritance received by one of the spouses are not subject to division. Also, the concluded agreement must be notarized. This is not a mandatory measure, but it may not be superfluous.

So, how to correctly draw up an agreement on the division of jointly acquired property?

1. When drawing up an agreement, start with the basics: indicate your names, registration address, passport details, as well as your status - whether you are married (the agreement does not have to be concluded in connection with a divorce) or divorced.
2. Indicate the purpose of the agreement - division of property, then list it. Here it is important to avoid general phrases like “all household appliances” and name in detail everything that you plan to share: a two-room apartment on Cherry Street with a market value of n million rubles (specify the share of each spouse), a black Nissan Almera of 2011, and that same two-chamber refrigerator Stinol.
3. The contract must specify the date and place of its execution, as well as the location of the property itself at that moment.
4. Indicate how the division will take place, what and in what shares will go to each spouse upon divorce.
5. Be sure to note if one of the spouses voluntarily renounces some property in favor of the other, so that in the future an ambiguous situation does not arise and the agreement is not invalidated.
6. The pages of the agreement must be numbered, and each sheet must have the signatures of both spouses.

As a rule, spouses divide jointly acquired property approximately equally. An obvious departure from the principle of equality creates a risk that the agreement will be declared invalid. What to do if a divorcing couple has children? According to the law, property is not distributed to minors, but parents can indicate in the agreement the share that should go to the child.

You can draw up such an agreement not only during divorce proceedings, but also while still in a strong relationship - this is a completely logical and normal way to protect yourself in the future. If you are not sure that you can draw up a contract yourself and take into account all legal aspects, contact a lawyer. The specialist will not only advise and help in drawing up the document, but will also, if possible, be able to smooth out rough edges in the dialogue between the spouses and lead them to consensus.

Opinion:

– There is one very funny pattern. In my practice, spouses first sit down at the negotiating table to come to an agreement on the division of property. But then they get bogged down in details and can't agree. They decide to sue. As a result, the court divides the property in approximately the same way as they initially tried to stipulate in the agreement. This happens because the rules of the section are still general. The court distributes property between spouses in such a way as to balance the share of each. That is, in the end it turns out that reaching an agreement on shore is faster and cheaper (costs for a lawyer are minimized, since the issue does not spill over into the courts, and the participation of a specialist is required only when preparing and agreeing on the text of the agreement). Anna Popovich, expert on family disputes at RTiger »

Legislation on the procedure for using shared ownership of residential premises

The role of the main regulatory document in establishing the rules for the use of common property in shared ownership is assigned.

In some cases, the role of a normative document may also be assigned.

determines which common property is shared (any property that belongs to two or more persons). Art. 245 – 250 regulate the exercise of the right to own, use and dispose of property, pay taxes and fees, establish the pre-emptive right to purchase an alienated share to an outsider and other issues related to the ownership and use of common shared property.

Code regulates the procedure for dividing shared property and separating shares from it.

and the norms of the RF IC determine the procedure for registering minor children at the place of residence of their parents, regardless of the form of ownership of the occupied living space.

Timing and cost

The cost and timing of all procedures and services depend on the characteristics of the section, the list of necessary works and documents. Contact our specialists, who will study all the nuances of the upcoming division of real estate, determine the necessary approvals, and estimate the timing of all work. Preliminary prices can be found in the table below.

In what cases is it necessary to determine the procedure for using residential premises?

Shares in residential premises, as a rule, are owned by close relatives or former spouses who are forced to live in a common area after a divorce.

The need to determine the procedure for using an apartment that is in shared ownership arises when the property of spouses is divided or the property is inherited by several heirs.

The rules must be set by homeowners themselves. For this purpose, they enter into a written agreement (ideally notarized), in which they formulate the rules governing their cohabitation in a residential area.

If this is not possible, the resolution of such disputes falls within the competence of the court.

Determining the procedure for using an apartment in shared ownership may be necessary if the owner is unable to obtain use and ownership of a part of the property commensurate with his share.

In accordance with this case, he has the right to demand compensation from other co-owners, and without reaching agreement on this issue, go to court with a statement of claim.

Settlement agreement in court

The claim process can be very lengthy and costly. Moreover, neither the plaintiff nor the defendant can be sure that the decision made by the court will satisfy them.

An option to avoid wasting time and money, as well as the possibility of obtaining an unfavorable solution, would be to conclude a settlement agreement between the parties to the process.

You can inform the court about the existence of a settlement agreement both in court and outside it, by filing a petition through the office.

The settlement agreement itself can be oral or written. The written agreement is attached to the materials of the civil case, and the oral agreement is entered by the secretary into the minutes of the court session.

It is still advisable to draw up a written agreement and relieve the secretary of the need to take notes on the text, every word of which may be important. Simultaneously with the agreement, a petition for approval of the settlement agreement is also submitted.

The consideration of the petition takes place at a court hearing. During the consideration, the judge establishes the voluntariness of his conclusion and the validity of its conditions, after which he retires to the deliberation room.

Based on the results of the review, the court either approves the agreement or refuses to approve it. In the first case, the proceedings are terminated, and in the second, they continue until a court decision is made. Rejection of a settlement agreement may occur if its terms violate the rights of other persons, in particular minors or incapacitated persons.

General rules for determining the procedure for using residential premises

An appeal to the court with a request to determine the rules for the use of housing that is in shared ownership does not always end with the allocation of the participant’s share in kind. The court has the right to refuse the plaintiff if such actions are not feasible without causing disproportionate damage to property.

However, the impossibility of allocating a share in property or dividing it in kind does not exclude the right of a participant in common shared ownership to make a demand to determine the procedure for using this property, if it is not established by the agreement of the owners.

In such disputes, the court takes into account:

• established rules for the use of residential premises, which may not fully correspond to the legal shares in the right to common property;
• real possibility of sharing;
• the degree of need for this property of each of the owners.

If the allocation of a share is possible, then the plaintiff is given ownership of an isolated territory in the residential premises, which corresponds to his share in the property. He loses the right to the rest of the common property.

When determining the procedure, each of the owners receives for use a specific part of the residential premises in proportion to the share while maintaining the right of common ownership.

It is easier to divide a private house in kind; it is much more difficult to allocate a share in an apartment that has been privatized for several owners.

How to establish the procedure for using a municipal apartment

The legislation of the Russian Federation does not contain standards for determining the procedure for using a municipal apartment by tenants and does not establish what the procedure for using social housing is . The court can establish such a procedure only for property that is in the personal property of citizens.

The requirement to transfer for use premises in a municipal apartment essentially implies a change in the terms of the social tenancy agreement.

establishes the principle of equality of duties and rights of the tenant and his family members (former and present). From this it follows that each co-tenant has equal rights to use all residential premises without exception.

Taking into account these requirements, it is impossible to determine the actual conditions and procedure for using municipal housing legally, since this will lead to changing the terms of the social tenancy agreement through the conclusion of separate agreements for parts of a single residential premises.

Rules for the use of land in shared ownership

If it is impossible to make a real division of the land plot, and the co-owners could not agree among themselves, the courts, when establishing the procedure for using the land plot that is in common ownership, take into account, first of all, its status.

If the land is owned by two or more persons, the norm for establishing rules for its use according to the ratio of shares is applied.

If the disputed land plot is in operation, the procedure for its use is determined taking into account the shares in the ownership of the building located on this plot.

The court can also establish an order, taking into account the joint use of the land plot by the owners of the house in practice - the so-called “established order of use”. This norm is regulated.

The concept of “established procedure for use” implies a voluntary agreement of the parties to carry out such actions, concluded orally or in writing.

Establishing the procedure for using residential premises

Rules for the use of residential premises that are in shared ownership, for example, an apartment, are established on the basis of the provisions. Parts of the apartment for any citizen are distributed by agreement of the parties, or by court decision.

The right to use an apartment in shared ownership is also determined. Housing is divided equally if there are no legal reasons for a clear allocation of shares.

When allocating a share in residential real estate to a participant in shared ownership, carried out in court, the following nuances are taken into account:

• the owner’s contribution to the improvement of the home;
• whether the share has been allocated to one of the owners in full. Otherwise, he receives the right to receive compensation for that part of the area by which his share was reduced;
• If the allocation of a share in the common property to one of the owners is not realized, the remaining participants must pay him monetary compensation equal to the lost property.

When establishing the procedure for using residential premises, the court decision indicates which of the rooms is assigned to which of the owners for use.
The court leaves the common property - bathroom, kitchen, corridor, toilet and auxiliary premises - in joint use.

How is the agreement concluded and what should it contain?

The simplest and most effective way to establish the procedure for using an apartment that is in shared ownership is an agreement on the joint use of housing.

The legislative norms of the Russian Federation do not require a written form of agreement between participants in shared ownership. However, so that no one tries to infringe on the rights of others, the agreement should be concluded in writing and notarized.

This document must state:

• subject of the contract;
• rules for using residential premises and paying for housing and communal services;
• duties of the parties;
• responsibility for failure to fulfill agreements reached;
• settlement of disputes.

The agreement is sealed with the signatures of the participants. It should be accompanied by copies of significant documents and an act of acceptance of the use of rooms in the apartment.

How to establish the procedure for use in court

If an agreement with the co-owners is not reached, the procedure for using residential real estate can be established by filing a claim in court (clause 1 of Article 247 of the Civil Code of the Russian Federation;).

In addition to the claim, you must submit to the court a package of documents necessary to resolve the case.

Where to file a claim

The statement of claim is submitted to the magistrate or to the district court at the location of the shared ownership ().

If only a request is made to determine the procedure for using housing, then the case is within the jurisdiction of the magistrate’s court ().

If other non-property claims are presented (determining the order of expenses for common property, moving into residential premises, etc.), the case is considered by the district court.

The same authority will consider a claim of a property nature, for example, for recognition of ownership of a share if its price exceeds 50 thousand rubles.

What documents need to be provided

Based on the requirements, the statement of claim must contain:

• information about the name of the court to which the claim is filed;
• Full name, place of residence of the plaintiff and defendant, as well as, if desired, email and contact numbers;
• information about a violation or threat of violation of the applicant’s rights;
• the plaintiff's claims, the circumstances on which they are based, evidence.

  
  The application also contains a list of attached documents, which, according to, include:

• copies of the claim according to the number of defendants and third parties;
• power of attorney or other document certifying the authority of the representative;
• documents confirming the circumstances on which the claims are based, and their copies according to the number of defendants and third parties;
• receipt of payment of state duty.

How does a claim proceed in court?

According to , the period for consideration of civil cases, including on the issue of establishing the procedure for using housing, is two months, and for magistrates’ courts - one month.

In practice, these deadlines are significantly delayed due to the heavy workload of civil courts. If an examination is required, the period for consideration of the case may also increase.

During the hearing, the court analyzes documentary evidence and hears arguments from the parties. After assessing the circumstances of the case, the court makes a decision regarding the merits of the claim.

Factors taken into account by the court

First of all, the court will take into account the rules for using the premises that existed before the dispute arose and may suggest returning to them if they did not infringe on anyone’s rights.

In other cases, when establishing, for example, the right to use the spouses’ apartment, the court will proceed from:

• layout of the premises (is it possible to isolate the owners from each other);
• the size of the share of each owner. This is not a decisive factor, because the room allocated to the owner for sole use may be disproportionate to his official share;
• number of separate and walk-through rooms;
• the presence or absence of family ties between the owners and the degree of their proximity;
• the owners have other real estate;
• the owner's need for specific real estate. Thus, a woman with a child can claim a larger area than a single person.

How to properly conduct a section

Property can be divided with the consent of all copyright holders, and in its absence, on the basis of a court decision. If there is only one owner, he himself makes this decision. Note that if there are several owners, it is almost impossible to make a division exactly according to the size of the shares. Therefore, the owners of the original property will have to agree on the order of division. For example, a cash payment may be provided to compensate for the difference in the area of ​​the newly formed facility and the size of the share.

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How you can and cannot divide real estate

Division in kind is possible if it is possible to ensure isolation and separation of the objects being formed. These signs consist of the presence of a separate exit to the common areas of the building or directly to the street, and the fencing of the internal volume of the premises with structures. It is not possible to achieve compliance with these requirements for every object. Therefore, at the initial stage, experts and technicians. designers and engineers conduct surveys, study the possibility of division, its options.

There are a number of prohibitions and restrictions associated with certain types of objects and their mandatory characteristics. For example, when dividing apartments, it is necessary to ensure the minimum required living space and natural light standards, the availability of a kitchen and bathroom for each new property, and compliance with sanitary and hygienic requirements. Therefore, residential real estate can be divided only in exceptional cases, and without the consent of the housing inspectorate, this is generally impossible to do.

For each new premises after the division, a technical plan must be prepared. Based on this document, Rosreestr will register the property for cadastral registration.

What project should I order?

If the division of real estate is carried out by forming new objects, construction work can only be carried out according to project documentation. Depending on the list of upcoming work and the features of the object, you need to order the project:

• for reconstruction, if as a result of the work the main characteristics of the building will change (for example, if, when creating new premises, an extension is made, a new floor is erected);
• for redevelopment/reconstruction, since the formation of new objects is associated with a change in the configuration of the original premises, the transfer of plumbing equipment and utilities.

In the above two cases, the list of works and the requirements for their safety are significantly different. For example, it is almost impossible to carry out reconstruction without temporarily decommissioning the facility, and work can begin only after examination of the project and obtaining permission from the state construction supervision. Redevelopment, on the contrary, is carried out within one room or with a partial impact on the common property of the apartment building, load-bearing structures and external walls of the building. Therefore, it is easier to coordinate such work.

Approvals, construction work

To be divided during reconstruction, the project must be sent for examination. After receiving a positive expert opinion, you must contact the state construction supervision office and obtain permission for construction work. After completion of the work, the same department issues a permit for import into operation. Additional approvals may be required with resource supply organizations and other departments.

When remodeling, the approval section may require:

• with the owners of apartment buildings, since it is necessary to carry out work on common property, to provide separate exits from each new object;
• with the housing inspection, if the division is carried out in an apartment building;
• with the SES, if you need to confirm compliance with sanitary, epidemiological and hygienic standards.

Approvals may require documents from the BTI (technical passport, floor plans), technical expert opinion on the safety of load-bearing structures. To speed up the approval process and avoid refusals, it is better to use the services of our specialists.

The newly created room must be isolated and separate. For this purpose, a separate exit is made to the street or to common areas in the building.

Technical plans for new facilities

The division with the redistribution of shares does not entail changes in the characteristics and configuration of the real estate. Therefore, in such cases, there is no need to contact a cadastral engineer and order a technical plan. For each newly formed premises, on the contrary, without this document it is impossible to register and register with Rosreestr.

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To prepare technical plans, the engineer will take measurements and surveys, indicate the coordinates and characteristics of each room in the text description and on floor plans. The information specified in the technical plan will be transferred to the Unified State Register by Rosreestr employees. From our company you can order technical plans for any real estate, including their division.

Section of the property and registration in Rosreestr. Questions to the expert

Soloviev Petr

Expert in the field of certification, cadastre, real estate and design. Higher legal education, more than 10 years of work experience.

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Question to the expert

Is it possible to start dividing real estate if the second owner refuses to sign the agreement? Is it possible to oblige him to make a division through the court?

Before starting design and work on the division, it is necessary to resolve disagreements between the owners. In particular, in court it is possible to determine the specifics of the division, the exact size of the area for each owner, and other nuances. Based on the court decision, you can order a project and begin work.

Rosreestr denied us cadastral registration of premises after the division. We presented the project and the work acceptance certificate, but they demand technical plans from us. Is Rosreestr right?

Yes, in this case, refusal of cadastral registration after division is legal. The basis for registering a new object for cadastral registration is the technical plan. It must be issued for each new premises after division.

The law says that a property must be isolated and separate. Are these signs also checked during division?

Yes, these are mandatory requirements for recognizing new premises as independent real estate objects. Signs are provided by erecting enclosing structures and arranging a separate exit.

When can you sell or rent out premises formed after the division of real estate?

Any real estate transactions are allowed only after the property has been registered in the cadastral register with Rosreestr. Information about the object and its cadastral number must be in the Unified State Register of Real Estate.

On the allocation of a share in residential premises

When considering the issue of establishing the parameters of the ownership share, if it occurs in court, the following factors are taken into account:

• age;
• presence or absence of children;
• professional activity;
• disability and so on.

Allocation of the owner's share in an apartment is fraught with great difficulties, especially if the living space is small and there are many applicants for it. It is difficult to identify each person's share in kind in this case. It is much easier to allocate the owner’s share in a private home ownership.

Find out more about allocating a share in an apartment.

How to act in case of violation of the rules of use of residential premises

If the co-owners entered into an agreement to determine the procedure for using real estate (apartment or house) or the rules were established by a court decision, problems in the use of shared property may still arise.

Any of the owners can file a claim for non-obstruction in the use of residential premises and for moving into an apartment or house if:

• agreements reached are violated;
• the agreement on joint activities and operation of real estate is not observed;
• a court order is not followed;
• access to the house or apartment is limited or terminated.

List of useful documents

Documents for download:

Judicial practice on establishing rules for the use of residential premises

Judicial practice in cases establishing rules for the use of residential real estate that is in shared ownership is based on the established procedure for using the property. It may not correspond exactly to the shares in the common property right.

The court, as a rule, takes into account the need of each of the co-owners for property and the actual possibility of sharing it.

In some cases, courts refuse to satisfy claims for the most common reasons:

• inability to share housing with other property participants;
• discrepancy between the premises area requirements and the size of the owner’s share;
• the plaintiff's lack of need for housing.

Contents of the settlement agreement

In general, the content of the settlement agreement corresponds to the content of the agreement drawn up in pre-trial procedure. The specifics of the settlement agreement will be the following:

• the name of the court that is considering the case;
• civil case number and name of the claim;
• information about the procedural status of the parties to the agreement (plaintiff and defendant);
• presentation to the court of a request to approve the settlement agreement and terminate the proceedings.

A settlement agreement approved by the court receives the status of a binding one, and if any of the parties evades the fulfillment of the obligations assumed under the agreement, it acquires the force of a court decision. This means that the agreement can be submitted to a bailiff for enforcement.