The renunciation of a share in a privatized apartment must be formalized legally in order to avoid possible negative consequences in the future. Read further in the article about how to renounce a share in a privatized apartment voluntarily, during a divorce, or in favor of a relative (mother, father, son, sister, etc.).
Owning real estate is a purely voluntary matter, entailing not only rights, but also responsibilities. If one of the residents does not want to bear the burden of maintaining a share in the apartment, then he has the right to refuse it.
When can a refusal be issued?
The owner has the right to refuse his share at any time. Except in cases where the property is seized. If we are talking about an apartment that is owned by the municipality, then any of the residents will be able to refuse their share in the privatization process.
Download an application for renunciation of a share in a privatized apartment
Moreover, none of those registered in a municipal apartment will be able to privatize their share without the consent and will of the others. Everyone must prepare their own package of documents, or contact a notary, to formalize the waiver of a share in the apartment in favor of one of the others.
Shared ownership and its grounds
Common shared ownership means joint ownership of property, in which the shares of each owner are strictly defined.
This type of ownership can arise:
- By the tribunal's decision.
- Consent of relatives.
- Other circumstances.
Unless otherwise assumed by the decision of relatives or a court order, then according to Article 245 of the Civil Code of the Russian Federation, all owners receive equal shares in the apartment.
Each owner can dispose of his share at his own discretion.
Voluntary refusal
A waiver of a share in a privatized apartment can be formalized exclusively voluntarily. No one can force the owner to give up his property.
Moreover, if it is proven in court that the alienation occurred under pressure, under the influence of threats or other coercion, the transaction will be declared invalid. The share in the apartment will be returned to its owner.
However, if the transaction took place in compliance with all the rules and regulations of the law, then it will no longer be possible to return the share in the apartment to the previous owner, except by buying it out from the new owner.
If we are talking about a share in an apartment, the owner of which a citizen has become through privatization, then such a transaction is reversed and is called deprivatization, when the property returns to the ownership of the municipality at the request of the owner.
How to sell a share to a third party bypassing this right?
Despite the fact that the law provides for the protection of the interests of all owners and co-owners of housing, there are still ways - quite legal - to circumvent this right. Well, there is a certain logic in this too - after all, on the other hand, each owner should be able to freely carry out legal actions with his part of the home, sell it, mortgage it, and so on - including. decide who is best to make a deal with.
Very often people go for donation in this case . The fact is that, according to the law, the right of first refusal can only be discussed in the case of a paid transaction. No money - no such right. Therefore, the owner often simply draws up a deed of gift, and then the parties “quietly” pay each other .
This method is extremely ineffective . Firstly, no one can guarantee that your secret will not be revealed, and the co-owners will not sue, demanding that the transaction be recognized as a sham, and this is exactly what will happen if it is proven that there was a secret transfer of money. To do this, it is enough for the co-owners to present their evidence, then the court can request a bank account statement - and everything will become clear.
There is another danger - they usually write a deed of gift, register it with the Cadastral Chamber, and then receive the money . Can you guarantee that your partner will be an honest person towards you and will give you the amount you agreed on? After all, the donation agreement has already been drawn up, the cadastral extract has been received by him, why give anything else away?
It is unrealistic to cancel a donation, if it was made of one’s own free will and in one’s right mind. Don’t go and declare a sham deal on your own.
Overpricing
As mentioned earlier, often sellers, when offering shared co-owners to buy part of the home from them, indicate an absurdly high price. And then, having received refusals, they sell the share at a more humane price.
However, this method is also unreliable - in this case, upon learning that the sale took place at a much lower price, angry shareholders can sue and even win it.
Partial donation
This method is the most reliable. Although it is also not without risk , of course - still, a certain part will have to be donated (you can find out more about the possible risks for the buyer and seller when buying a share in an apartment here).
So, if you categorically do not want to have any dealings with other co-owners, but have already found yourself, as it seemed to you, a worthy candidate in all respects, then first give him part of your share - for this you can simply go together to the Cadastral Chamber, if the volume of legal knowledge allows you to do this. But it is better to contact a notary to draw up a gift agreement - this way you will avoid mistakes that are almost guaranteed for the average person. After this, you “behind the scenes” agree on the amount and receive it - without witnesses, of course.
Next, your former shared co-owners cease to be the bearers of the primary right to repurchase - from now on, this is the one to whom you donated part of your piece of living space. Now the procedure is formalized in full compliance with the law - you send a written notification to him, he agrees, then the transaction is registered with the Registration Chamber.
Before you start buying or selling a share of property, slowly weigh all the pros and cons of the upcoming contract, because in the real estate industry this type of transaction is considered the most difficult. And to avoid all the pitfalls, read our materials on how to correctly draw up a preliminary and main purchase and sale agreement, as well as how to buy out a share in an apartment from a relative.
So, it turns out that it is still possible to bypass the notorious right of first refusal. But to do this, you need to be confident in the reliability of the chosen candidate and not be greedy beyond measure - remember that there is always a risk that the deal will be considered void. Or maybe it would be better to completely abandon the idea of looking for loopholes in the law - after all, living by the rules is always easier.
Refusal in favor of a relative
How to give up a share in a privatized apartment in favor of a relative?
An adult (over 18 years of age) and a legally capable citizen has the legal right to transfer, for a fee or free of charge, his share in a privatized apartment to any other citizen. This could be his relative, for example, mother, father, daughter, sister, brother, grandmother. The law does not prohibit such action.
If we are talking about a minor, then he will not be able to refuse real estate and participate in privatization, even in favor of his own parents. It is possible to exclude minors from the list of privatization participants only with the permission of the guardianship and trusteeship authorities . If the apartment has already been privatized, then the guardianship authorities will never allow the children’s share to be given or sold to any relatives, including their mother.
Usually citizens issue a waiver in favor of a relative. There are no restrictions on such transactions by law, except for the shares of children. A relative can buy a share or accept it as a gift. When donating, you will not have to pay income tax. If a citizen refuses a share during privatization, then his part will be equally divided among the remaining owners.
What does the law say?
The Civil Code not only establishes the right of the remaining co-owners to buy out a share in the apartment, but also to do so under the same conditions under which the share will be put up for open sale.
For example, by offering the co-owners to buy out a share for 300 thousand rubles, and then putting it up for sale at 200 thousand rubles, you may be faced with the fact that the co-owners will later easily challenge such a deal in court, declaring it illegal.
The seller of the share is obliged to inform the other co-owners that he intends to sell the share, as well as the true sale price. It is at this price that the co-owners can buy out this share or offer theirs. The remaining co-owners have no reason to demand a reduction in the price of the share, but this does not prevent them from bargaining.
The same rule and procedure apply to transactions that do not involve the sale of the said share. If the owner of the share intends to exchange for some other real estate, then the procedure does not change in any way . Only the notice to the remaining co-owners will indicate that the share will be exchanged, not sold, and indicate the amount for which the co-owners can redeem the share themselves.
Since there may be several co-owners, and several of them may also agree to a buyout, the law gives the right to choose a buyer to the seller. He can choose at his own discretion: to which of the co-owners he will sell his share. There are no restrictions in this case.
Refusal of inheritance
A share in an apartment may belong to one citizen, and after his death pass by will or by law to another. Moreover, everyone has the right to accept the inheritance or refuse it. Such a refusal is issued only in notarial form.
In the event that such a refusal is formalized in the prescribed manner and within the time limits prescribed by law, the share passes into the inheritance estate, which, in accordance with the law or by probate, is distributed among the remaining heirs in equal shares. If there are no other heirs, the property becomes the property of the state.
Citizens need to remember that it is impossible by law to refuse part of the inheritance. You can only accept the inheritance in its entirety, or refuse it entirely. This means that by acquiring a share in the apartment in this way, the heir also acquires all the debts that he owes for utility and other payments.
The refusal can be issued at a notary's office at your discretion, indicating one of the heirs as the recipient, or distributed among all. This must be indicated in the text of the document.
What is the right of first refusal?
The term means the protection of the civil rights of co-owners of property, which is expressed in granting them the priority right to buy out a share in the apartment. The rule applies regardless of the presence/absence of other applicants or family ties.
The co-owner may not be related to the seller. However, the primary right of redemption belongs to him.
The co-owner is given one month to make a decision. The starting point is the date of receipt of written notice of the sale of the property.
Refusal in divorce
When an apartment belongs to spouses and is privatized during marriage, upon divorce, by law it must be divided equally between them, or in other proportions established in court.
One of the spouses may renounce his share in favor of the other. However, in any case, the division of property must take place in court. The parties can simplify the procedure by concluding a voluntary agreement on the division of shares, have it certified by a notary and submit it to the court.
The issue of dividing shares in case of divorce can be decided in advance when concluding a marriage contract. There you can immediately state that during a divorce, one spouse renounces his share in favor of the other. The contract must be notarized.
Deadlines
The law determines the deadlines for each stage of the share sale procedure . In particular, the seller of the share is obliged to send an official notice to all co-owners before the sale, and then wait for their decision within 30 days. Failure to respond within this period is understood as a refusal to repurchase the share.
After 30 days, you should go to the notary’s office, present copies of letters, postal receipts for sending letters, and in return receive a certificate, which in the future will serve as proof of sending letters and their receipt by the addressees. Having such a certificate in hand, you can freely sell the share to anyone.
Article 250 of the Civil Code of the Russian Federation gives the right to co-owners to demand the transfer of the rights and obligations of the buyers of the share to them through the court. This procedure will take only 3 months, counting from the date of filing the statement of claim with the corresponding requirement. For the seller, it does not matter who ultimately becomes the buyer, but a failed third-party buyer may find himself in an unpleasant situation when the court terminates the completed transaction and transfers the right to buy out the share to one of the co-owners.
Procedure for renouncing a share in a privatized apartment
There are only two legal ways to refuse a share in a privatized apartment:
- Donation;
- Sale.
First, you need to obtain a document confirming the citizen’s ownership of a share in a privatized apartment. Such a document is currently an extract from the Unified State Register, which can be ordered on the government services portal, at the MFC, as well as at the registration chamber.
Next, you need to draw up a gift agreement or a purchase and sale agreement for a share in the apartment. The buyer or the recipient registers the contract and the transfer of ownership in his name. After this, all rights and obligations of the owner pass to the buyer or recipient.
Download the agreement for donation of a share in an apartment (sample)
It is important to remember that the sale of a share in an apartment is impossible without mandatory prior notification to the remaining co-owners of the upcoming transaction. They have a pre-emptive right to buy out this share. If the seller does not comply with these rules and enters into a transaction with a third party, then the remaining co-owners in court may demand to cancel the transaction and transfer the rights of the buyers to them.
If it is decided to give the share to a close relative (spouse, children, parents), then you will not have to think about paying taxes. Tax is imposed on gift transactions with third parties or distant relatives. The tax amount is based on the value of the share, which is most often looked at according to BTI data.
The tax is paid, if required, by the one who accepts a share in the apartment as a gift. The tax rate in 2021 is:
- 13% of the cost of real estate for citizens of the Russian Federation.
- 30% of the cost of the share for foreigners and those who live outside the country most of the year.
What methods of refusal are there?
Relinquishment of a share in an apartment must be legal and voluntary. Current legislation provides for two options for alienation - sale and donation of property. Before starting any of these procedures, an extract from the Unified State Register is issued.
Sale
The owner can either sell or change his share in the apartment. Preference in purchasing a share in an apartment is given to other homeowners, but this does not exclude the possibility of selling part of the property to a third party.
Before selling his part, the owner is obliged to notify other owners of this real estate (Article 250 of the Civil Code of the Russian Federation). The notice must indicate the basic terms of sale and the transaction price.
The owners have thirty days to make a decision on purchasing part of the apartment. Only after all owners are informed about the sale and refuse to purchase, can a citizen offer his share to third parties.
The fact of the transaction is confirmed by the purchase and sale agreement. The transfer of ownership is reflected in the unified state register of rights - the Unified State Register of Rights. If an outsider has become the new owner, then an official document confirming the refusal of the other owners to purchase must be provided to the territorial rights registration authority.
Donation
Donation is another way to give up a share in an apartment. The owner draws up a gift agreement. The donee, in whose favor the alienation is made, must give his official consent to receive the gift.
Donation can be organized before privatization. In this case, the citizen draws up a statement of unwillingness to enter into ownership of real estate. Such an application is subject to notary endorsement.
The donor of the property does not pay personal income tax, but the donee must pay income tax. Personal income tax is calculated according to the current rate - 13% for tax residents of the Russian Federation, 30% for non-residents. The donee must pay personal income tax in the amount of 13% (30%) of the inventory value of the share according to information from the Technical Inventory Bureau (BTI).
Consequences of giving up a share
From the very moment a citizen draws up documents for purchase and sale or donation, his ownership right passes to another person. Following this, the former owner is obliged to:
- Contact the passport office to deregister at this address and register at a new one.
- Move out of the apartment within the agreed time frame, taking your belongings.
In no way can the former owner prevent the new owner from disposing of the property at his discretion.
The situation is somewhat different in cases where a citizen refused a share in an apartment during privatization. In this case, he retains the right to live in this apartment as long as he wants. He cannot be discharged against his will, even in court. Even if the apartment is sold, this transaction does not cancel the right of this citizen to continue to live in the apartment.
How to correctly write a waiver of the pre-emptive right to purchase a share: form and content
To avoid conflicts, problems and protracted litigation, the shareholder is advised to clearly express his decision regarding the share being sold. If everything is clear with consent, then refusal to purchase has its own specifics. Even though such a document does not have a state standard, it must reflect the following mandatory information:
- Full name, year of birth, place of birth, residential address and passport information of the co-owner completing the refusal;
- apartment address;
- size of the share being sold;
- share price;
- recording the fact of refusal to use the preemptive right to purchase;
- Date of preparation;
- signature of the co-owner completing the waiver;
- signature and seal of the notary.
If a legal entity is a co-owner of the apartment, then instead of personal data, its statutory and constituent information (name, legal address, registration date, full name and position of the manager) is entered into the document. In this case, the refusal can be issued on a special form of the organization, and also certified by the signature and seal of the head (without recourse to the services of a notary).
Options for selling a share in ownership
After sending a notice of intention to sell a share, several scenarios are possible:
- Registration of refusal to purchase a share by the second owner with subsequent sale to a stranger.
- Consent to priority repurchase. In this case, the seller must conclude a purchase and sale agreement (hereinafter referred to as the SPA) with the one who agreed.
- Ignoring. The most common option, but failure to respond within a month from the date of receipt of the notification of delivery allows the owner of the share to sell it to a third party.
Note! If several owners agree to buy the shares, the seller has the right to independently choose who to sell it to. In this case, a transaction with an outside buyer will be illegal.
Contract for the sale and purchase of a room in a communal apartment
What documents are needed to purchase an apartment in a new building, on the secondary market?
Lawyer's answers to frequently asked questions
How to formalize a waiver of a minor owner?
In this case, the document is drawn up by a notary by one of the parents in agreement with the other.
What to do after receiving a refusal from the second owner?
You can immediately look for a buyer. If there is one, submit documents for registration.
The apartment has several owners. Registration of refusals by a notary will be expensive. Is it possible to minimize costs?
Refusals may not be certified, but in this case Rosreestr may suspend the registration of ownership of the buyer and require notarized documents, and the notary may refuse to certify the DCT. According to the law, the contract of ownership of a share in ownership must be certified.
Is it possible to issue a waiver of pre-emptive right by power of attorney?
Yes, but to represent interests in any transactions related to real estate, the power of attorney must be certified by a notary.
The house has two owners - me and my husband. Does he need to file a waiver? I want to sell my share and leave.
In this case, a refusal will not be issued. Instead, you will need a notarized consent of the spouse for the sale (Article 35 of the RF IC).
What to do if the notification is ignored?
If a waiver of the pre-emptive right is not submitted and the notice is ignored, after the expiration of a month the seller has the right to:
- Put your share up for sale and find a buyer.
- Agree with the buyer on the terms of the transaction and enter into a contractual agreement.
- Submit documents for registration.
Legal advice: if the notice was sent by Russian Post, it is better to wait another 1-2 weeks or ask whether the second owner received it. This is necessary so that he does not subsequently challenge the transaction and transfer the pre-emptive right to himself.
