Last modified: January 2021
Shared ownership is a phenomenon that has gained momentum and spread since the beginning of privatization, when the state transferred ownership of real estate in equal parts to all registered citizens who did not refuse, in appropriate proportions. Subsequently, the deprivation of ownership of a share in the apartment served as a “bone of contention” between family members and formed the basis for fraudulent schemes. The owners of a small part pursued the goal of selling it at exorbitant rates or getting the entire property for pennies.
Is it possible to deprive a share in an apartment without consent?
With shared ownership, the property is legally divided into parts. Moreover, each owner has equal rights to use this object.
This type of property is most often used:
- When alienating part of the property in favor of other people.
- Inheritance.
- Division of property by former spouses.
In all these cases, the owner has the right to dispose of the received property. There are some restrictions regarding the pre-emptive right to purchase a share upon its sale. But the main thing is that neither owner can force the other to alienate his share of the property. Only the court has this right.
Therefore, the law allows only three ways to transfer part of the apartment to yourself:
- With the consent of its owner. In this case, the parties agree to conduct a sale or donation transaction.
- Deprivation of property rights by a court for debts on utility bills and other penalties. The share of such an owner will be sold at auction, the money will be used to pay off debts, and the debtor himself will receive the remainder.
- Redemption of a small share. Only a court can recognize such a share of an apartment. If such a decision is made, then it can be purchased for the cadastral value.
For other apartment owners, the second method is unacceptable, since the share will be sold at auction, and they will again have to resolve the issue with the new owner. The most preferable option is a buyout with the consent of the owner. If this fails, you need to file a claim to recognize his share as insignificant and then buy it out. This can also be done if the owner of the share is mired in debt and has no intention of paying it off.
Methods of deprivation of property rights
Deprivation of ownership of real estate very often becomes the subject of legal disputes. Each owner should know his rights to own property in order to avoid possible problems. Let's consider in what cases a person can be deprived of the right to own real estate. Let's look at the instructions and methods for depriving property rights.
In accordance with the current Constitution of the Russian Federation, it is possible to deprive the owner of his right to an apartment only by a court decision. No other authority has the power to deprive a person of ownership of his property. Most often, the subject of dispute is real estate. A person may not live in the living space or be registered on it, but this does not prevent him from being the owner of this premises.
The basis for deprivation of property rights may be confiscation and foreclosure of property
. Real estate can be taken away by a court decision or taken away for debts. For example, if we are talking about an apartment purchased with a mortgage. It is the property of the bank and in case of violation of the terms of the contract by the borrower, the housing becomes the property of the bank.
But banks take such measures only as a last resort. It is much more profitable for them to renegotiate the terms of the mortgage loan. In addition, you can only take away an apartment in which one of the owners is a minor child if the guardianship authorities give their consent. It is also considered a prerequisite that the child must have other housing suitable for living.
In some cases, ownership of real estate is taken away in favor of the state. For example, this may happen if this object is needed to accommodate objects of municipal or state significance. In this case, the owner will be paid compensation commensurate with the market value of the property.
The question often arises about the eviction of utility
. Please note that in this case it is impossible to forcibly evict a person from a residential premises. He can only voluntarily give up the apartment to pay off the accumulated debt.
When an inheritance is made public, the right to property passes to the heirs determined by law or by this very will. In the event that there is a testamentary refusal, then in addition to the persons referred to in the will, the obligatory share must go to disabled first-degree relatives, if any.
These provisions are enshrined in the current Civil Code. To deprive any of the heirs of the right of ownership
on real estate, it is necessary to take certain actions in advance.
The testator has the right to dispose of his property during his lifetime and indicate the persons to whom it will be transferred in the will. In this case, after the death of the owner, inheritance of his property will occur according to the will. If at the time of death the testator had children, a spouse or parents recognized as disabled, then they are required to share the inheritance.
A way to deprive an heir of ownership of an apartment may be the option of selling the apartment or donating it.
. To ensure that the transaction is not invalidated after the death of the testator, the option of buying and selling property is preferable, since the gift agreement is easier to challenge in court.
How to deprive a share in a privatized apartment without consent?
To recognize a share in real estate as insignificant, you must have evidence of the following conditions:
- Small share size. In this case, the court will not look at the conditional size (one fifth, etc.), but at the size of the share in relation to the size of the apartment. A fifth of a five-room apartment will be equal to one room and will not be considered an insignificant share.
- Non-participation in the maintenance and management of common property. The owner of the share does not live in the apartment and does not pay for utilities and repairs. It is necessary to prove these facts on the basis of documents, as well as witness testimony.
- No urgent need for housing. It is enough to prove that the owner of the share has other housing.
It is important to understand that all three signs must be present. Otherwise, the court will not recognize the share as insignificant.
Briefly about the main thing
The owner can be forcibly deprived of a share in the apartment if the housing situation reflects one of the following three conditions: if the share in the apartment is insignificant, if the share is not measured in kind (that is, cannot be allocated to a separate room), and also if the share in the apartment not properly used by the owner.
It is important to remember that the alienation procedure is carried out only in court and is often accompanied by difficulties. Any such case requires the involvement of a specialist who will put the necessary documentation in order and will also be able to fully protect your interests in court.
Sources:
Form and content of the statement of claim//Civil Procedure Code of the Russian Federation” dated November 14, 2002 No. 138-FZ. Article 131.
Documents attached to the statement of claim//Civil Procedure Code of the Russian Federation” dated November 14, 2002 No. 138-FZ. Article 132.
Pre-emptive right to purchase//Civil Code of the Russian Federation (Part One)” dated November 30, 1994 No. 51-FZ
Procedure
The entire process of going to court is strictly defined by law. You need to go through the following stages:
- Try to resolve the conflict before trial.
- Collect all documents.
- Draw up a statement of claim indicating the provisions of the law and links to the collected certificates.
- Send it to court, attaching documents. All defendants must also receive copies of the application.
- Participate in court hearings, defending your rights and proving the essence of the claim.
- If the decision is not in favor of the plaintiff, he can appeal it to a higher court.
- If the decision is positive, then the plaintiff must pay compensation to the defendant for his share.
- Register ownership rights to the received share in Rosreestr.
You can also combine shares if, after the buyout, one owner has several of them.
Basic moments
Often, several citizens own shares of real estate. This situation arises if property is inherited or divided after divorce.
Important! If one of the co-owners gives up his share for registration, then unexpectedly many applicants may also arise for the property. Such transactions are usually formalized using a deed of gift.
You cannot simply deprive a person of ownership of a share. Voluntary consent or a court decision is required.
Statement of claim
The requirements for drawing up a claim for the redemption of a share in an apartment are specified in Articles 131-132 of the Code of Civil Procedure of the Russian Federation. The claim must contain:
- The name of the application and the court to which it is sent.
- Details of the plaintiff and defendant.
- Accurate information about the apartment and insignificant share in it.
- Circumstances of emergence of property rights.
- Information about attempts to reach an agreement out of court.
- Justification for the insignificance of the share.
- Requirements.
- List of documents.
- A list of witnesses whom the plaintiff wants to call to court.
- Date and signature of the plaintiff.
Since there are many legal nuances in drawing up such claims, it is worth seeking the help of a qualified lawyer.
Legal support
Without the necessary knowledge of civil and procedural legislation, it is difficult to understand the intricacies of housing law. To increase your chances of success, you should get advice from an experienced lawyer from the very beginning, and if you need to go to court, entrust him with formulating and preparing documents.
In 90% of cases, success depends on a competent legal basis.
The right of every person to private property and its inviolability is strictly protected by the Law of the country ( Article 35 of the Constitution of the Russian Federation ).
However, sometimes several owners of one apartment cannot exist together and manage their property. Is it possible to deprive one of the shared co-owners of his part of the home? This will be discussed in our article.
Required documents
The documents attached to the claim must include:
- A copy of the plaintiff's passport.
- An extract from the house register about those registered in the apartment.
- Extract from the Unified State Register of Real Estate.
- Technical documentation.
- Receipt of payment of the duty.
- Documents confirming the validity of the claim - a certificate of non-payment of utility bills, data from the Unified State Register of Real Estate on the availability of other housing for the defendant, etc.
Some documents can be provided directly in court.
Forced repossession of housing
If an unscrupulous owner lives in an apartment, you can try to prove the significance of his violations and the severity of the offenses that make it impossible to live together with him. It is worth considering the possibility of preparing evidence for court based on the following facts:
- if there is a claim for collection of debt on a mortgage loan;
- filing a claim on behalf of the management company (housing office, homeowners association, utilities) to collect unpaid and overdue monthly payments;
- a claim from the non-recipient of alimony (his legal representative) or from the prosecutor's office for repayment of alimony debt that has accumulated after the relevant court decision on the assignment of payments.
If the court decides to collect the accumulated debt by selling the property, the defaulter’s home is put up for sale. The loss of a part in the apartment gives the right to receive compensation in the amount of the difference between the proceeds from the sale and the total amount of the debt.
Expert opinion
Vasiliev Viktor Stanislavovich
Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.
The fact that the owner did not use the property for a long time and lived in a completely different place can be interpreted against the plaintiff. The court will definitely take into account the fact that the negligent co-owner has another home or place of residence.
Why can property be taken away?
The law allows the seizure of property only in extreme cases, when this is related to the owner’s guilt in illegal actions or to the interests of the state and society.
In practice, the following cases of seizure of a share in real estate are possible:
- For non-payment of mortgage.
- For mismanagement of cultural property when a person lives in an architectural monument.
- When violating the rights and legitimate interests of other people.
- In case of violation of the law, for which confiscation of property is provided.
- Confiscation of the site and buildings on it for state needs. This is possible legally only by a court decision.
All these rules for the seizure of property apply equally to the seizure of a share in property.
How likely is eviction?
In practice, eviction in our country is used extremely rarely. In most cases, courts are not inclined to apply harsh decisions either to debtors with only one home, or to citizens who violate the rules of living together with neighbors. Often, legal disputes over eviction continue for so long that the conflict resolves itself during this time at the level of neighbors, municipal authorities and creditors. However, this does not mean permissiveness.
Sources
- https://kvadmetry.ru/dolevoe-vladenie/kak-sobstvennika-lishit-doli-v-kvartire.html
- https://ros-nasledstvo.ru/kak-lishit-sobstvennika-doli-v-kvartire-bez-soglasiya/
- https://advokat-belyakova.ru/spory-po-nedvizhimosti/dolevaya-sobstvennost-na-nedvizhimost-kak-mozhno-zakonno-lishit-sobstvennika-doli-v-kvartire/
- https://estatelegal.ru/nedvizhimost/kak-lishit-doli-v-kvartire/
- https://rtiger.com/ru/journal/kak-lishit-sobstvennika-doli-v-kvartire-bez-soglasiya/
- https://provashiprava.ru/kvartira/prodazha/lishit-sobstvennika-doli.html
- https://news.ners.ru/za-chto-sudy-chacshe-vsego-lishayut-sobstvennikov-ih-nedvizhimosti.html
- https://www.bp-u.ru/yuridicheskiy-likbez/kak-lishit-prava-sobstvennosti-na-kvartiru/
- https://zakon-dostupno.ru/pravo-sobstvennosti/lishenie-prava-sobstvennosti-na-dolyu-v-kvartire/
- https://www.Sravni.ru/text/2019/8/22/9-situacij-v-kotorykh-vy-mozhete-lishitsja-kvartiry/
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