How to divide a plot of land with a house into two parts and register it separately?

16

There are a great many situations when the owners of a residential building and the land plot on which the building is erected want to make a real division of property.

Among the most popular:

• division of the house as jointly acquired property between spouses during or after divorce;
• division of an inheritance issued in equal or proportional shares to one or more heirs;
• allocation of a co-owner's share in case of common shared ownership (for example, if we are talking about a house “for 2 owners”).

In any of the listed cases, the parties to the dispute can either resolve the dispute peacefully by making a mutual decision on the division of property and concluding an agreement, or demand the division of property through the court. An example of a voluntary division is an agreement between heirs on the division of inherited property.

How is a plot divided when dividing a house into parts?

Division of a land plot, in particular the allocation of a share from it, while maintaining common shared ownership of residential real estate, cannot be possible due to the following reasons:

• clause 1 art. 1 of the Land Code of the Russian Federation, it is regulated that one of the principles of land legislation is the indivisibility of the fate of plots with buildings located on such real estate, with the exception of cases provided for by law;
• Art. 273 of the Civil Code of the Russian Federation stipulates the principle of unity of the land plot and the buildings erected on it;
• Art. 35 of the Land Code of the Russian Federation prohibits the alienation of a plot of land without premises located on it, if such property belongs to one owner.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

When alienating a task located on a plot owned by several persons, the division is made in proportion to the shares belonging to such owners.

Taking into account the stated norms of legislation, before dividing a land plot, it is first necessary to allocate shares of residential premises in kind.

Thus, the division of land, due to the fact that it contains residential and non-residential real estate objects such as a house or other utility premises, becomes much more difficult.

In this case, the approach to dividing real estate is carried out according to completely different rules, including on the basis of the owner’s decision to divide the plot.

List of documents

In order to register ownership of a land plot, in addition to filling out an application (the form can be downloaded on the website), it is necessary to collect documents in which:

• the right to the original land plot has been established,
• there is confirmation that the land surveying project has been agreed upon (certified minutes of the meeting).

Read here >,>, Package of documents for the sale of a house or part of it.

In addition, you need to present your passport, and additionally a power of attorney to the representative. The entire package of documents can be taken independently to the Rosreestr branch, to the MFC, or given to an authorized person when he carries out an on-site reception. Documents can also be sent by mail or electronically through the Rosreestr website.

Accounting and registration of rights will be carried out within 10 days as soon as they arrive at Rosreestr; if they were sent through the MFC, then you need to wait no more than 12 days. Messages may be sent to your email or phone number regarding the status of your request.

Options for dividing the house and plot

Thus, the most optimal option is to divide the housing between all owners into parts proportional to the shares of these persons. Moreover, each section of the building must have its own separate entrance.

In addition, the local area, as well as all adjacent buildings and non-residential structures, are subject to division. However, such a division may be practical provided that the number of owners does not exceed two people. Otherwise, it will be possible to comply with these requirements only if the property has a sufficiently large area.

See the similar material “Dividing a land plot into two”.

The examples given are not the only indicator of the complexity of dividing a plot when dividing a residential building. In this regard, the courts, taking into account the opinions of all owners, may decide to transfer residential real estate, land plots and other non-residential premises into shared ownership, with further determination of the procedure for the use and ownership of such real estate.

In addition, there are cases when the division of the plot occurs together with the division of real estate under construction.

To resolve such a controversial situation, the court takes into account the following:

• the degree of completion of construction work, as well as the stage at which they are;
• availability of technical expertise;
• the likelihood of continuing construction after the real division of property between the owners.

Share sizes

They are determined according to the norms of the Civil Code. As a general rule, co-owners can agree among themselves and decide which part each of them will own. If such an agreement has not been drawn up, the territory is divided into equal parts.

In some cases, the size of the share may change. For example, two sisters own a dacha plot and their shares are equal. But one hasn’t been to the dacha for several years, and the other has been cultivating the land, renovating the house, laying out a garden, laying out paths, and putting up a gazebo. Such transformations, by law, are recognized as inseparable improvements to property. And the sister who contributed them has the right to demand in court an increase in her share.

How to divide a plot of land and a residential building

In order to make a real division of the house and land, you can go in two ways, namely:

• enter into a voluntary agreement;
• resolve this issue in court.

Of course, the voluntary method of division is simpler and cheaper for the parties, and also does not require lengthy consideration, unlike a lawsuit. Alas, it is sometimes difficult to obtain consent and cooperation from the second owner for the division of a house and land, so such disputes often lead straight to court.

Legal registration

Competent, from the point of view of the law, documentation will allow you to easily register the newly formed site with Rosreestr. But not all people know what documents need to be collected, and often do not provide the required ones or prepare completely unnecessary ones in this case.

We will help you collect all the necessary documents, advise on controversial issues, explain in detail the procedure for allocating a share from the common property, and consider the nuances relating specifically to your situation - ask for help.

The cost of services starts from 3 thousand rubles - for this little money you will save your nerves, money and time, and also get a guaranteed result.

By agreement

The most objectively convenient way to carry out this division is to conclude a voluntary agreement between the owners on the division of real estate and the increase in shared ownership.

In order for this process to end with state registration, the document must stipulate all the essential conditions for the division, as well as attach to it a project for surveying the plots being created and a conclusion on the possibility of dividing housing.

Notarization of such an agreement is not required; the document is submitted to the Rosreestr unit at the location of the real estate, after which the body registers the transfer of rights.

The agreement must indicate all relevant circumstances and information, including:

1. Date and place of conclusion of the agreement.
2. Full information about the parties: full name, passport details, registration and actual residence addresses.
3. Details of registration of rights to shared property.
4. Description of the property to be divided.
5. A description of the division order, to whom and what is transferred, a link to technical expertise, if any.
6. Compensation payments, if any, are provided (for example, for a larger share of land going to the second owner).
7. The procedure for registering rights, description of expenses and their distribution.
8. Technical information on the house and plot.
9. Personal signatures of the parties with transcripts.

The agreement, along with the necessary documents, is submitted to the Rosreestr authorities (or through the MFC) for registration.

Documentation

To register new objects allocated from common shared ownership, you will need to submit to Rosreestr:

• an application for state registration of rights to the allocated objects from each party to the agreement;
• documents confirming the rights to the plot and house;
• agreement;
• technical documents: cadastral passport, technical passport, etc.
• expert opinion, if required;
• copies of the passport (the original is presented when submitting documents);
• receipt of payment of duty.

If documents are submitted by a representative, you need a power of attorney certified by a notary with specified rights to submit and receive documents, as well as to sign an agreement.

When applying for registration, each applicant will have to pay a fee of 2,000 rubles.

Features of the agreement section

Very often, the parties, even without disagreements, cannot divide a residential building and the land plot underneath it for purely technical reasons.

Among them:

• errors in the documents that provide the basis for registering rights and issuing title documents for the house and land, which cannot be corrected;
• impossibility of explicitly determining shares from documents;
• errors in the area, configuration of the house.

Example. In the late 80s and early 90s, standard houses with two apartments were built in many cities across the country, with completely separate exits, communications, and adjacent territories. Basically, such houses were provided to employees and workers of state enterprises, having been transferred to them under privatization agreements. In almost all cases, such houses were registered as common shared ownership with ½ share for each owner.

At present, it is impossible to make a voluntary division of such property, since according to all the documents, separate apartments are not reflected, only the total area of ​​the house is indicated. As a result, the owners of such houses are forced to conduct an examination confirming the possibility of a real division or, at a minimum, with the participation of the BTI, draw up new technical documents for the property.

Sample agreement for voluntary division of a house

When drawing up a document, it is better to use the services of a lawyer or at least get a free consultation from a specialist in this field. Ask questions right now or use the sample below to compose your own.

Sample agreement for voluntary division of land

Remember that the slightest mistake made when drawing up the agreement will result in a refusal of state registration of new borders. You can use the sample below, but it is advisable to ensure that the document you select is correct for your situation.

Consult our lawyer free of charge on the correct drafting of an agreement for the division of a plot of land for a residential building.

Some features

They exist in almost any case in court.

Most often, questions arise if the house and plot:

1. They are pledged on the basis of a mortgage agreement.
2. Purchased before the wedding.
3. Built with money allocated under the maternity capital program.
4. Construction of the facility has not been completed (frozen).

Depending on the situation, these features will play a role and directly or indirectly affect the nature of the court decision. It is far from certain that the parties will receive equal shares of the acquired property.

House bought before marriage

In this situation, the property becomes the property of the person who acquired it before the marriage. All property purchased by a person before marriage is his personal property, which means it is not subject to division (Article 256 of the Civil Code of the Russian Federation).

If during the marriage the second spouse spent his personal savings or the costs of reconstructing the house, remodeling or repairs were from the family budget, this gives certain privileges.

It will be necessary to present in court irrefutable evidence of the expenditure of personal (or general) finances on the building.

According to the law, a significant increase in the market value of the object of dispute on the secondary real estate market, due to joint funds, gives the spouse the right to claim part of the home ownership, or payment of monetary compensation in proportion to the money spent.

House with mortgage

The solution to this issue is complicated by the fact that the property is pledged to the bank with which the mortgage agreement was concluded. Therefore, the named financial institution often acts as a third party in court hearings.

The main question that interests all participants is who will repay the contributions to the bank and who will ultimately receive the property.

There are several ways to solve the problem:

1. With the consent of the lender, the loan is reissued to one of the parties. The second spouse receives monetary compensation proportional to the total funds invested in the loan.
2. House construction is sold on the market (with the permission of the lender). The loan is repaid using the funds received, and the remainder is divided in equal shares.
3. The former spouses continue to share the use of the building and site and pay mortgage payments.

Having chosen one of the options, citizens who have entered into an agreement with a credit institution draw up an additional agreement with the lender, which indicates the changes made to repay the debt.

In practice, one of the spouses receives money as compensation.

Purchased or built with maternity capital

As you know, this program of the Government of the Russian Federation is designed to improve the living conditions of Russian families with two or more children.

People often spend money on purchasing large real estate. In this situation, the object becomes common property of both adults and children.

Therefore, the division of the house between spouses is carried out with the participation of guardianship authorities, which monitor compliance with the rights of minors.

In this case, the living space is divided not into two parts, but into four, if there are two children, taking into account the invested funds of the mother’s certificate.

Construction in progress

Upon divorce, an unfinished house belonging to the spouses is located on the property. People don't know how to divide an unfinished house.

Formally, it is not yet a full-fledged structure, since it has not been taken into account by the Rosreestr authorities and a cadastral passport has not been issued for it.

In this situation, the object is still considered joint property and can be divided.

This can be done in the following ways:

1. Assess the cost of the building materials used and pay half or divide them.
2. Jointly complete the construction and then divide the house.
3. Compensate the invested costs to the other party and independently put the facility into operation.

Often citizens choose the last two options during divorce proceedings. They involve obtaining greater material benefits from unfinished real estate.

Through the court

Practice shows that the owners of the said real estate are not always able to come to a compromise and resolve the issue peacefully.

Also, stalemate situations and mistakes that preclude voluntary division of the house and land often push people to court.

In this case, the only option for dividing the land and house is a judicial procedure.

Procedure

So where to start and how to complete the forced division of real estate?

This process must go through the following steps:

• the person initiating the trial determines the size of the shares of the disputed property for each of the co-owners, establishing the possibility of carrying out a division from a technical point of view;
• a statement of claim is drawn up, the subject of which is the allocation in kind of shares of a residential building and a land plot, after which the document with all supporting documents is sent to the court;
• If the claim complies with all procedural norms, the court accepts it for proceedings, after which the process of considering the case on the merits of the stated claims begins.
• At the meeting, a technical examination may be appointed, which will determine whether a real division of the house and plot is possible.
• Based on the results of consideration of the claim, the court makes a decision to allocate shares in the disputed property to each owner or establishes the procedure for its use. In the first case, in order to finally acquire property rights to the distributed shares, the owners need to register them with the Rosreestr authorities.

Statement of claim for division of house and plot

The general requirements for a claim are reflected in Art. 131-132 Code of Civil Procedure of the Russian Federation.

A statement of claim for the division of a land plot and the premises located on it is drawn up according to the following template:

• name and location of the judicial authority;
• personal data of all parties to the process: full name, registration address and actual place of residence;
• the price of the statement of claim – the value of the property if there is a dispute;
• the descriptive part of the claim, which sets out in detail all the details of the property relations of the owners of the disputed property, the procedure for its use and the shares of each owner;
• the reasons for which it is necessary to carry out the division forcibly are indicated, and all methods used for pre-trial settlement of disputed relations are also reflected;
• the motivation part contains a list of options proposed by the plaintiff regarding the division of the house and land. The specified block must contain a legislative substantiation of the applicant’s position;
• list of additional materials;
• signature and date of document preparation.

It is better to entrust the preparation of a statement of claim to professional lawyers from the field of housing and land law. If you are determined to prepare the documents yourself, then take advantage of the free legal advice of our specialists and ask them all the questions that concern you.

Sample claim for division of house and land in kind 2021

The slightest error in the statement of claim or omission of important content requirements prescribed in Art. 131 of the Code of Civil Procedure of the Russian Federation will lead to the judge leaving the document without movement or even to returning it. And this is wasted time that could have been spent preparing for the trial.

You can use the sample below to file a claim yourself, but it is better to enlist the help of an experienced lawyer. Consultation with our specialists is completely free.

Documentation

In addition, the following documents confirming the plaintiff’s position are attached to the claim:

• copies of passports of participants in the process;
• sample claims for each side of the case under consideration;
• documents confirming property rights to the disputed property;
• cadastral passport of the land plot, technical passport of the BTI of the residential premises and other technical documentation;
• if available, expert opinions on the possibility of dividing real estate;
• confirmation of payment of state duty.

State duty

Tax and civil procedure legislation provides for the need to pay a state fee in the event of a statement of claim being submitted to the court. Taking into account the fact that this category of claims is of a property nature, the amount of tax is calculated based on the price of the statement of claim.

The rules for determining the duty are regulated by Art. 333.19 of the Tax Code of the Russian Federation according to a formula consisting of such variables as the cost of the claim, a fixed rate and the corresponding percentage.

You can calculate the fee yourself using the data from the table below.

Where to submit

If the estimated value of all property subject to division does not exceed the amount of fifty thousand rubles, then the claim is considered in the magistrate's court. If the total cost is more than the specified amount, the claim is filed with the district court at the location of the land plot. This procedure is provided for in Art. 23 Code of Civil Procedure of the Russian Federation.

It is logical that there are no houses and land plots worth less than 50 thousand rubles left even in remote provinces, therefore in 99% of cases all claims for division must be filed with the district courts at the location of the real estate to be divided.

Procedure and process of judicial division

The court session begins with hearing the parties to the case. Find out their arguments and objections.

As part of the judicial process, forensic construction and land management examinations are mandatory if the possibility of a real division is not obvious, and the house itself does not have separate exits, communications, or associated territories.

The top priority is to establish the possibility of an ideal allocation of part of the real estate; if such actions cannot be carried out, then the division takes place based on the established procedure for use.

Experts offer various options related to establishing the boundaries of newly created land plots or rooms of a residential building, which become the property of each of the parties to the dispute.

If the examination has shown the need for reconstruction or redevelopment of the premises, the court determines in its decision the nature and type of work on the reconstruction of the disputed property that the owners will need to carry out.

The allocation of a share in a residential premises represents the transfer into the possession of one of the parties to the process of an isolated area of ​​the house, which has a separate entrance. Also, the division of residential real estate can occur if it is possible to isolate such housing through redevelopment.

In addition, the degree of legality of the decision made is determined by compliance in such a document with the requirements of various norms.

Among which:

• construction;
• fire protection;
• sanitary and hygienic, etc.

Thus, experts should take into account the possibility of arranging a separate bathroom and kitchen, and supplying utilities. Only in this case can an expert opinion serve as a sufficient attribute for making a well-founded court decision.

In the process of conducting a land management examination of the disputed plot, the original land plot is surveyed. Also, the compliance of the minimum and maximum size of newly formed real estate objects, the unchanged intended use and other rules established by current legislation is checked. The division of a land plot without carrying out such actions regarding the buildings located on it is not allowed.

If the possibility of division is confirmed, the court makes a decision with reference to the options proposed by experts.

Duty

State duty is an obligatory part of any service that the state provides to you, and going to the registration chamber, or at worst to the court, is the same service.

That is why payment of the state fee is mandatory and without a document certifying this fact, your issue will not be resolved.

The amount of state duty is established by the Tax Code of the Russian Federation. Depending on the size of your plot, the amount of the fee will vary, but it cannot exceed five thousand rubles.

Also, the duty cannot be less than two hundred rubles.

The state fee must be paid before submitting the documents, and the check must be attached directly to them. Also, it is necessary to clearly understand the importance of paying the state fee and pay it yourself, and not rely on the help of third parties.

In order to calculate the amount of the duty, you should contact a lawyer or the tax service, and also try to calculate its amount yourself by referring to the tax legislation.