How to correctly draw up a claim for the allocation of a share in an apartment

Real estate in joint or shared ownership in Russia is a common phenomenon. Some of the owners are no longer satisfied with the property regime, and they decide to dispose of their share. But the legislation excludes this possibility until the share is allocated.

1. How to file a claim for allocation of a share in an apartment
2. Sample statement of claim for allocation of a share of an apartment in kind
3. Attachments to the claim
4. Expenses
5. Procedure for going to court Selecting a court
6. How to file a claim for allocation of a share in an apartment in kind

The allocation of a share in kind can be achieved with the help of the court. Accordingly, the interested party will have to apply to the judicial authorities with a statement of claim.

How to file a claim for allocation of a share in an apartment

Art. 131 of the Code of Civil Procedure of the Russian Federation regulates the rules for drawing up statements of claim. When filing a claim, you must indicate:

• information about the court in which the case will be heard;
• information (full name, address, contact telephone number) about all participants in the process: plaintiff - an interested person who wants to allocate his share;
• the defendant is a co-owner (co-owners) of the property;

When drawing up a claim, it is necessary to pay attention to all the details that are relevant to the case. But there is no need to describe the situation in too much detail and indicate circumstances that do not affect the legal relationship of the co-owners.

Emotional descriptions, spelling and punctuation errors, abusive expressions, and subjective assessment of the situation should be avoided.

You can get a clear idea of ​​the form and content of the claim using the sample below.

The need and feasibility of allocating a share in kind in an apartment

What is an allocated share in an apartment if not an ideal opportunity to “disengage” from former family members who have practically turned into neighbors in a communal apartment.

The need for maximum isolation arises in situations:

• dissolution of marriage between spouses with the accompanying division of jointly acquired property;
• children growing up and creating their own families;
• entry into inheritance rights of several heirs who have an equal degree of kinship in relation to the testator, but are psychologically incompatible with each other;
• residence of a person suffering from alcoholism, mental disorders or leading an antisocial lifestyle.

If it is impossible to carry out redevelopment, then there is nothing else left but to allocate a room in the apartment in kind with the division of personal utility bills. The feasibility of this step exists to increase its market value:

• upon sale or exchange;
• when renting out or renting property.

If there is no possibility of division, then monetary compensation is allowed, proportional to the size of the part belonging to the co-owner. After all, there is no technical possibility to allocate a share in a one-room apartment in kind, so even if you go to court, the authority will decide on compensation in value terms.

Sample statement of claim for allocation of a share of an apartment in kind

When drawing up a claim according to the sample, pay attention to the following points:

• when indicating information about the parties to the process, you must indicate your full name, address of place of registration, residence (if they do not match), contact numbers, email;
• cadastral data must include the address, characteristics of the property (total and living area, number of rooms, floor);
• information about ownership must include the size of the share (if it is not determined, the corresponding claim can be filed as part of the claim);
• the justification for the plaintiff’s position must include information about the attempt made to peacefully resolve the dispute and the impossibility of further sharing;
• the list of claimed claims can include the recovery of compensation for legal expenses associated with the allocation of a share in kind.

Legal regulation

Theoretically, a co-owner of shared ownership has the right to demand the allocation of a share in kind from the total property (clause 3 of Article 252 of the Civil Code of the Russian Federation). If it is impossible to reach a compromise between the co-owners, the judicial authority must be involved in resolving the issue.

However, the above paragraph contains a clause on compensation payment in cash equivalent if the allocation is in kind:

• prohibited by law;
• technically impossible without causing disproportionate damage.

Guided by Resolution of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996, damage is understood as the impossibility of further use in accordance with the intended purpose, a significant deterioration in the general technical condition or significant inconvenience during operation. Allocating a share in an apartment in kind means dividing one residential premises into several individual objects suitable for housing.

Technically, whether it is possible to allocate a share in an apartment is determined by the possibility of fulfilling a number of conditions:

• equipment for personal entry into the designated area;
• bringing separate communications to the “wet area” (kitchen, bathroom);
• ensuring isolation of the living area.

If the above conditions are met, it is necessary to agree on the redevelopment and draw up technical documentation in the BTI. The allocation of a share in an apartment in kind is also considered to be the transformation of an object into a “communal apartment” with the establishment of the procedure for using the common territory (kitchen, bathroom, etc.), which must be disposed of by agreement of the parties, and in the absence, be guided by a court decision (Article 247 of the Civil Code of the Russian Federation ).

Attachments to the claim

Art. 132 of the Code of Civil Procedure of the Russian Federation determines the list of documents that must be attached to the statement of claim.

1. A copy of the claim. The number of copies depends on the number of participants in the process - everyone must receive their own and 1 copy for the judge.
2. Applicant's identity card. A civil passport, residence permit, or other document identifying the plaintiff will be suitable.
3. Technical passport for the apartment.
4. Documents on the basis of which the plaintiff acquired ownership of a share in the apartment.
5. Information about payment of the state fee, the amount of which depends on the cost of the claim.
6. Other documents related to the case.

Important! In some cases, the plaintiff cannot independently obtain any documents. The law allows you to attach to the claim a petition for the court to request the necessary document from the relevant authority. Consult with a lawyer about how to properly draft your petition.

During the court hearing, the judge may oblige any of the participants in the process to provide certain information and documents.

Common and joint property: differences

The law distinguishes two types of legal ownership of property, which include:

1. Joint – there is no division into shares, and each participant is a 100% owner.
2. Shared – property is divided among the owners as a percentage.

The law allows you to change the legal status of property from joint to shared, but this requires the desire of all owners. Division occurs by drawing up a special agreement or, if other owners refuse to separate, by filing a lawsuit.

In the first case, in the absence of shares, you first need to draw up an agreement or submit an application to the judicial authorities to determine the part of the property for each owner. Then you should begin to resolve the issue of allocation.

Expenses

The main costs associated with the trial can be divided into 3 groups.

1. Legal expenses. This group includes the participation of a lawyer in the process, preparing a claim, representation in court, requesting documents, etc.
2. Administrative expenses. Costs for obtaining documents, drawing up a technical plan, etc.
3. Payment of state duty.

The amount of the duty is determined by Art. 333.19 of the Tax Code of the Russian Federation and is calculated based on the cost of the claim.

Where to submit documents

The allocation of a share in court is the prerogative of courts of general jurisdiction (not arbitration courts). Depending on the value of the claim, cases are considered:

• magistrate - if the cost of the claim is no more than 50 thousand rubles;
• district court - in all other cases.

If the allocation concerns real estate, then the vast majority of claims are heard in district courts, since the cost of the dispute is quite high.

The application will be considered by the court at the location of the defendant. The special service GAS.Pravosudie will help you find a specific court at a known address.

You can submit a set of claim documents as follows:

• appearing in person at the court office;
• by mail - a registered parcel with a description of the contents.

Electronic filing of claims has not yet been practically implemented, so it is recommended to use one of the methods listed above.

Procedure for going to court

Choice of court

Cases on the allocation of a share in an apartment fall under the jurisdiction of district (equivalent to them city and interdistrict) courts. The claim must be filed in the court that serves the area where the disputed property is located. This requirement is specified in Art. 30 Code of Civil Procedure of the Russian Federation.

How to file a claim for allocation of a share in an apartment in kind

The statement of claim is submitted to the court in one of 3 ways.

1. In person, to the court office. The plaintiff brings the claim and its attachments and submits it to the secretary for signature.
2. Through a representative. The authorized person must have a notarized power of attorney to perform such actions.
3. By mail. The claim and its attachments are sent to the court office by a valuable letter with a list of attachments and a notification of delivery.

The received claim is checked by the secretary for compliance with legal requirements. If no violations are found, the court employee registers the application and puts a receipt mark on the plaintiff’s copy.

Important! The statement of claim is submitted in the number of copies according to the number of participants in the process.

Conclusion

Allocation of a share in an apartment in kind cannot be called a simple undertaking. The owner must comply with all the requirements of procedural legislation when drawing up a statement of claim:

• choose the judicial body to which the claim will be sent;
• legally competently justify the legality of your claims and the need to allocate a share;
• correctly indicate the provisions of the law that support his position;
• decide which documents will be applicable in his situation.

If the requirements of the Code of Civil Procedure of the Russian Federation are violated, the judge will return the claim or leave it without progress.

Due to frequent updates to legislation and the legal uniqueness of each situation, we recommend obtaining a free telephone consultation with a lawyer. You can ask your question by calling the hotline number 8 (800) 555-40-36 or write it in the form below.

Legal consultation

If you need qualified legal assistance on this issue, our lawyers are absolutely free. Competent specialists will give competent advice on preparing a statement of claim or, if required, provide the necessary services.

Ask a free question and get expert support!

(C) Liliya Dorofeeva, practicing lawyer. Especially for VSude.INFO

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State duty amount

What should be the state duty for a statement of claim for the allocation of a share is a question on which lawyers have not yet reached a consensus. The case can be considered as a non-property case, since the plaintiff requires an obligation to perform an action - to divide the property into several parts. In this case, it is enough to pay 300 rubles to the budget.

But there is another point of view. Since the allocated part has value, the claim is qualified as property, and the duty is calculated based on the cadastral or assessed value of the part of the property of interest. In the second case, you will need to attach an expert opinion.

About the author of the article

Natalia Goncharova

Allocation of shares by the court

If the co-owners were unable to reach a compromise during the negotiation process, then they will have to allocate a share in the apartment through the court to co-owners who disagree with the proposed division. However, the authority has the right to compulsorily assign compensation in a certain amount, often based on the cadastral value of the property.

Algorithm of actions

Before going to court, it is important to decide on priorities: how to allocate a share in an apartment in the desired physical equivalent through the court, or how to receive funds in monetary or commodity terms, that is, how to sell the existing part of the housing at a higher price.

Next, you should follow the algorithm of sequential actions:

1. Try to resolve the issue on a compromise basis. If the result is negative, the court will add “points” for the attempt.
2. Request an expert report, including detailed information about the property:
   the technical side, how to allocate a share in an apartment in kind and whether this can be done practically;
3. the total number of shares and their percentage relationship with the total footage of the apartment;
4. the degree of moral and physical deterioration of the living space;
5. market value of the property on the secondary market.

1. Draw up and submit a statement of claim to the district court with a set of accompanying documents.
2. Attend court hearings, present additional necessary documents, prove the validity of the stated claims.

The result of the trial will ideally be a positive court decision, which is the basis for changes to be made by Rosreestr specialists and the issuance of a new extract - legally confirming the allocation of the share.

Statement of claim for allocation of shares in kind

The trial will be held in the district court due to the cost of the claim exceeding 50,000 rubles. The statement of claim for the allocation of shares in kind or compensation payment in specific amounts must be drawn up in accordance with the requirements of Article 131-132 of the Code of Civil Procedure of the Russian Federation and contain:

1. Document header, including:
   name of the court;
2. personal details, address and contacts of the plaintiff;
3. information about the defendants;
4. the price of the claim on the basis of which the state duty was paid.

1. A descriptive part outlining in chronological order the events regarding the property and technical characteristics:
   conditions for receiving part of the object into ownership;
2. footage of the premises, number of rooms, number of shares and shareholders;
3. the reasons for the dispute regarding the allocation of a share in kind in the apartment or the desired monetary compensation.

1. The petition part with a statement of motivated demands and reference to legislative acts.
2. Date of compilation, signature of the plaintiff and list of attached documents.

: Sample statement of claim for the allocation of a share in kind in an apartment (24.3 KiB, 162 hits)

List of documents attached to the application

At the bottom of the application text is a list of all additional documents:

• passport identification;
• title confirmation (extract from the Unified State Register of Real Estate) and title document (sale and purchase agreement, exchange, donation, inheritance);
• technical passport with a plan issued by BTI;
• expert report on the possibility of redevelopment with the allocation of a share in the apartment in kind;
• receipt of payment of state duty;
• calculation of monetary compensation if division is contrary to law;
• other documents confirming the validity of the requirements.

Deadlines and costs

The court has two months to consider the appeal. However, if there are a large number of defendants objecting to the allocation of a share in the apartment in kind, the litigation drags on for up to six months.

The claim belongs to the category of property with the payment of a state duty, consisting of a constant and variable amount indicated in the table:

Regardless of the appraised value of the apartment and the share planned to be received, the minimum state duty in court proceedings is 400 rubles, and the maximum is 60,000 rubles (Article 333.19 of the Tax Code of the Russian Federation).

Depending on the preliminary price of the claim, the state duty is calculated using the formula by summing two terms:

Attached documents

An addition to the claim for the allocation of a share is a list of documents.

Let's look at them in more detail:

• copy + original of the plaintiff’s passport;
• notarized power of attorney + copy of the representative’s passport (if available);
• information about parents and guardians if it is planned to allocate a share to the child;
• receipt of payment of state duty;
• a copy of the defendant’s notice - a new requirement from October 1, 2019;
• title documents (copies of the purchase and sale agreement, certificate of inheritance, privatization agreement, deed of gift, extract from the court decision...) + confirmation of ownership in the form of a certificate or extract from the Unified State Register of Real Estate;
• copies of expert reports on assessing the value of property;
• a copy of the registration certificate for the apartment;
• a copy of the certificate from the BTI;
• other documentation.

There are times when the plaintiff cannot collect all the documents. Then he has the right to petition the court to request separate certificates. You must make your request known at the preliminary hearing – one month after registering the claim.