Four ways to resolve conflict between apartment share owners

Article updated: June 13, 2021
Mitrofanova SvetlanaLawyer. Work experience - 15 years

Hello. I helped 20 clients formalize the donation of their shares. In itself, the execution of a deed of gift does not depend on whether the donors are related to the recipients or not. Therefore, the instructions on this page are suitable for everyone. I divided everything into 3 main stages: 1) collect documents; 2) we draw up a gift agreement; 3) submit the agreement with documents to the MFC or the Registration Chamber to register the transaction. Parties to the transaction: donor - the one who gives his share; donee - to whom it is given.

Remember: if the owner wants to give his share or part of it to someone, he DOES NOT NEED to obtain the consent of other owners, nor the consent of those registered/living in the apartment, nor the permission of the guardianship authorities if one of the owners is a minor. The owner of a share can donate it to anyone in accordance with clause 2 of Art. 246 of the Civil Code of the Russian Federation. Consent is not specified either in Chapter 32 of the Civil Code of the Russian Federation on donation, or in Federal Law No. 218-FZ dated July 13, 2015, on the basis of which all real estate transactions are registered. Also, do not pay attention to paragraph 1 of Art. 246 of the Civil Code of the Russian Federation - it means that by agreement of the owners, the entire apartment is disposed of, and not a separate share of it. The exception is minor children; they cannot give their share to anyone, but only sell it - more details.

Also, when donating a share, you do not need to take into account the period of ownership. The owner can donate the property at any time and there will be no tax for him. The minimum period is taken into account only when selling. Now let's move on to step-by-step instructions.

Stages:

• Stage No. 1 – collecting documents
• Stage No. 2 – order a donation agreement for a share of the apartment
• Stage No. 3 – Registration of the gift transaction

Stage No. 1 – collecting documents

Documents are required in originals. Below I have listed a minimum list of documents, but in each specific case additional ones may be required. The full list can be found in the help window from an MFC consultant, the Registration Chamber (UFRS) or a notary (more on this in the next section). You can also find out from our lawyer. Ask your question in the online consultant window at the bottom right of the screen or in the comments.

Follow the link to read the entire list of documents for donating a share of an apartment.

• Certificate of ownership or extract from the Unified State Register for the apartment;
  One of these documents is needed to make sure that the apartment or share really belongs to the donor. In addition, the data from these documents is indicated in the gift agreement itself. For example, “The donor’s ownership of the donated share is confirmed by a certificate of registration of rights: series 1111, issued on November 11, 2011 by the Office of the Federal Service for State Registration, Cadastre and Cartography of St. Petersburg.”

  If the certificate is not in hand, it will be replaced by a paper extract from the Unified State Register for the apartment. It is not issued as a separate share. Instructions - how to order an extract via the Internet.

  Certificate of ownership

  Extract from the Unified State Register of Real Estate

A small digression - if you need a free consultation, write online to the lawyer on the right or call (24 hours a day, 7 days a week) (Moscow and the region); (St. Petersburg and region); 8 (800) 350-24-83 (all regions of the Russian Federation).

• Passports of donors and recipients;
  If the recipient is between 14 and 18 years old - his passport and the passport of one of the parents/guardian. If the recipient is under 14 years old - his birth certificate and the passport of one of the parents/guardian.
• Consent of the donor's spouse certified by a notary;
  It will be required in the only case - a citizen bought a share or an apartment during marriage, but registered it only in his own name. In this situation, the purchased real estate is considered the joint property of BOTH spouses, even if it was registered in the name of only one of them - clause 2 of Article 34 of the RF IC. Consent is issued only by a notary - clause 3 of Art. 35 IC RF. Costs 1,500 - 2,000 rubles. Additionally, a marriage certificate will be required.

  The consent of the donor's spouse is not required: 1) The spouses bought an apartment while married, registered it as shared ownership for both of them, now one of the spouses gives his share to someone else. 2) The donor bought a share/apartment before marriage. 3) The donor received a share/apartment as an inheritance through privatization or donation. It makes no difference whether you are married or not - clause 1 of Art. 36 IC RF. 4) The donor bought a share/apartment during marriage, but the spouse signed a marriage contract excluding joint ownership - clause 1 of Art. 256 and art. 42 of the Civil Code of the Russian Federation.

• Marriage or divorce certificate;
  If the donor has the right of ownership of the share/apartment registered in one surname, but now has a different surname in his passport.
• If a trusted person acts for one of the participants in the transaction - a notarized power of attorney. The power of attorney is certified by a notary for 1,000 - 2,000 rubles. Donors cannot issue a power of attorney for the recipient to sign a gift agreement for them, and vice versa. Because the donor and the donee cannot be the same person - clause 3 of Art. 182 of the Civil Code of the Russian Federation. They can issue a power of attorney for each other, for example, to submit a signed agreement for registration with the MFC.

Grounds and reasons

What laws govern it?

All of the above actions related to suing, allocating, or transferring a share in a privatized apartment fall within the scope of civil law .

It is this code that regulates each of the actions, because these are, in essence, civil legal relations.

If we talk about allocating a part in a privatized apartment, then you can refer to Article 244 of the Civil Code.

It talks about how you can allocate a share in common shared ownership and privatized real estate.

Transfer on a gratuitous basis is regulated by Article 572, which characterizes the gift agreement. This is the one you should contact.

If we talk about the trial, the actual distribution of shares in a privatized apartment is regulated by the civil procedural code.

To learn more about the rules of court, please refer to it.

Stage No. 2 – order a share donation agreement

In most cases, when donating a share, an agreement is required only in a notarized form. That is, you first need to certify (certify) the contract with a notary, then submit it to the MFC or the Registration Chamber.

Therefore, read the article carefully - when is it necessary to have the agreement certified by a notary in order to donate a share?

Briefly: if there are several owners in an apartment and one of them wants to donate his share to someone, a notary is required - clause 1.1 of Art. 42 of Federal Law N 218-FZ. When an apartment is owned by one owner and he gives someone else a share, the agreement is quite simple.

If in your case a notarized contract is required, read carefully how to get it certified by a notary and how much it will cost.

In principle, you can register the entire donation transaction with a notary or simply certify the agreement at your own request, even if this is not necessary in your case. This is usually done when there is a fear that interested parties will want to challenge the transaction. For example, the heirs of the donor. The notary will act as a guarantor that the transaction was carried out according to the law.

If in your situation the contract is suitable in a simple form, using this link I will tell you how to draw it up. You will also find forms and samples there.

The gift agreement in a simple form can be signed in advance or in front of an employee at the MFC/Registration Chamber (the next stage), there is no difference. The employee does not verify the signatures. With a notarial form of agreement, it is signed only in front of a notary, because he certifies the signatures.

The number of copies depends on the number of participants in the transaction, plus one copy, which remains with the registration authority and the notary. For example, if there is one donor and one recipient, 3 copies are needed.

We conclude a lease agreement

Concluding a lease agreement when renting out a share in an apartment is a mandatory condition, regardless of whether you have received consent to the transaction from the other co-owners or not. When drawing up a document, pay special attention to the following points:

In order not to miss anything important when drawing up an agreement, download and print a sample share rental agreement and fill it out together with the tenant in two copies. One copy remains in your hands, the second is given to the tenants.

Standard residential lease agreements should contain the following pieces of information:

• subject of the contract;
• tenant obligations;
• landlord's obligations;
• tenant rights;
• landlord's rights;
• terms of a transaction;
• procedure for resolving disputes;
• procedure and form of payments;
• details of the parties.

A prerequisite for renting out a share is that the housing must be suitable for living.

Stage No. 3 – Registration of the gift transaction

If the contract was certified by a notary

Then the notary is obliged to submit the registration agreement himself, free of charge and on the same day. This is already included in the service for certifying a transaction on the basis of Art. 1 of the Federal Law of August 3, 2018 N 338-FZ and Art. 22.1 Basics about notaries. Explanations of the Federal Notary Chamber - link.

Typically, notaries submit documents electronically. Then the transaction must be registered within one business day. If the notary does not have the opportunity to submit electronically, he or his assistant will submit the documents in person to the Rosreestr office within 2 business days. The registration period will last up to 3 working days after submission. All this is indicated in paragraph 9 of Art. 16 of the Federal Law on Real Estate Registration of July 13, 2015 N 218-FZ. But due to the workload of Rosreestr, sometimes there are delays.

Participants in the transaction must pay the notary only the state fee for registering the transaction - 2000 rubles (clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation). If a notary submits documents electronically, Rosreestr has established a 30% discount - instead of 2,000 rubles, you need to pay 1,400 rubles. The state fee is paid by the donee, but in practice the notary doesn’t care who gives the money.

After the transaction is registered in Rosreestr, the donee will become the new owner of the share. The documents can be collected from the notary. Some notaries notify you about this by phone, while others will have to call you yourself.

Other articles

After receiving a share as a gift, the recipient can register in his apartment - instructions. Or sell his share - registration procedure.

Is it possible to rent out an apartment without the consent of the other owner?

Despite the fact that the right to dispose of personal property is guaranteed to citizens by housing and civil legislation, problems may arise with renting out a share in residential premises.

The fact is that in addition to the living space, the apartment has a common area, consisting of a bathroom, corridors, toilet, and kitchen. In addition, all its inhabitants can enter the room only through one common door. It is not possible to delimit the area of ​​ownership of non-residential objects. And after renting out the room, the tenants, along with the other residents, will use common square meters.

Therefore, the decision to move third parties into the apartment, whether on a paid or gratuitous basis, according to Article 247 of the Civil Code of the Russian Federation, must be made by all share owners collectively.

If the second owner is against renting out your share, there are several options to solve the problem:

1. Establish a procedure for using common non-residential space and obtain permission to rent out housing through the court.
2. Try to convincingly convince your neighbor of the advisability of moving in tenants (it is advisable that his consent be written down on paper).
3. Without the consent of the second tenant, move tenants into the room, hoping that the neighbor will not evict people onto the street.

Arbitrage practice

Example 1

The plaintiff is an ex-husband demanding to share a 3-room apartment that belongs to him and his ex-wife on an equal basis. In this proceeding, the court decided to provide the plaintiff with 1/8 shares of the residential premises, and the defendant (ex-wife) with 7/8 shares of the apartment. The reason for this distribution of shares is that the wife has two minor children in her care. In addition, some part of the apartment, by court decision, must be provided to the plaintiff in the form of a certain monetary compensation from the defendant.

Who bears the costs of litigation?

The state fee for the statement of claim is paid by the plaintiff. Its size is determined as a percentage of the average cost of the share of the apartment for which the applicant is applying and ranges from 400 to 60,000 rubles.

The technical examination is carried out at the expense of the defendant, however, if he does not want to pay for this procedure, the plaintiff can do so.

Payment of legal costs is assigned to the party in the proceeding that is declared the loser by the court.

Costs include the plaintiff's costs for a lawyer, various legal consultations, etc. The amount of these costs is purely individual and depends on the prices of a particular law office, the number of court hearings, the number and complexity of technical examinations.

Registration of ownership of an apartment in a new building is a slow and painstaking task. Do you need to know the cadastral value of your apartment or house? There is detailed information on this issue here. Before buying an apartment, you should definitely check it. How to do it correctly, read this article.

Termination of the contract: grounds, procedure

A contract can be terminated in court for several reasons:

• The tenant violated the terms of payment for the rent: six months for long rental periods, for short terms - failure to pay the payment more than twice upon the expiration of the payment period.
• The tenant or the persons for whom he is responsible have damaged the landlord's property (the court may grant a period of one year for all damage to be eliminated, or the contract is terminated).
• The tenant refuses to pay utility bills.
• The tenant is behaving immorally.
• The party does not comply with the conditions specified in the contract.
• The premises are unsuitable for living.
• The tenant, or the persons for whom he is responsible, use the room for other purposes and violate the rights of other residents to use the premises.

To terminate the contract you need to:

1. Notify the tenant of the termination of the contract three months in writing, unless otherwise agreed upon separately.
2. The contract is terminated by mutual consent of the parties if no disputes or other conflicts arise.
3. Otherwise, we go to court.

The lease is most often issued for an entire apartment. We have prepared for you some useful materials about this procedure:

• Social, commercial, official and gratuitous hiring.
• The procedure for registering a lease.
• How to conclude a lease agreement for specialized housing?
• Procedure for short-term and long-term rental.
• Possible problems with tenants.

You should be especially careful in the process of drawing up the text of the contract and think through all the terms of employment. Based on its text, it will be possible to resolve all difficulties and conflicts if they arise, so it is better to foresee all troubles in advance.

How to sell a share in an apartment

Owners of joint real estate have the right to redeem their share with priority

at the seller's price (Article 250 of the Civil Code). An exception is the sale of an apartment at auction, or the sale of an allocated share in an individual housing construction project with a plot, a share in which also belongs to the owner.

Let us note that ignoring the preferential rights of the remaining owners when selling a share in housing will allow them to demand through the court the transfer of the rights and obligations of the buyer within three months (Article 250, Part 3 of the Civil Code)

The agreement to sell a share to existing owners must be formalized in writing, with the participation of a notary (Article 42 Part 1 of Law No. 218-FZ “On State Registration of Real Estate”). Those. You should draw up a notice with the notary, indicating the object and the price of sale, the circumstances of payment (terms, conditions, payment procedure), the deadline for transferring the property share, the list of persons whose right to use the share will be preserved, and other conditions.

Ways to notify owners of the intention to sell a share:

• notice sent expressly
  . The recipient signs and dates the copy;
• registered letter with a list of attachments
  . Confirmation of dispatch is a registered receipt signed by the recipient;
• notification through a notary
  . The transmission of the notice will be confirmed by a notary certificate.

If you are determined to sell the share, it is better to use the notification to the remaining owners through the notary, since during the subsequent registration of the sale, the notary will only be satisfied with the notarial form of notification. After the notification (the date of its receipt), the owners of the joint apartment will have 30 days to buy out the share

. Their silence is regarded as a lack of intention to participate in the ransom.

If there is no response from the remaining share owners of the property after a month, or they have not redeemed the share within this period, the share owner has the right to sell his real estate to any buyer. However, the sale price cannot be lower than the share owners stated in the notices, otherwise they will have to be notified in writing again, indicating the current (lower) price.

Documents required to file a lawsuit

First of all, the owner needs to write a statement of claim. It is better to entrust this task to an experienced lawyer, since the presence of errors in the document is a reason for the court secretary to refuse to accept the application.

The following documents and their photocopies will also be required:

• Certificates of state registration of marriage or divorce;
• Owner's passports (pages with personal information and registration address);
• Technical passport of the residential premises subject to division;
• A document confirming the applicant’s ownership of the apartment;
• Architectural plan of the premises containing information on the distribution of ownership rights.

In addition to the above documents, the applicant will need to present to the court clerk a receipt for payment of the state fee for the statement of claim.

Its amount is determined by the price of the claim, that is, the market value of the share of the residential premises claimed by the applicant. Determining the price of the claim does not have to be entrusted to a competent employee of the appraisal office; it is enough to indicate the average cost on the real estate market.

However, if the parties cannot reach an agreement in this matter, then it will not be possible to do without the services of a specialist.

Also, the decision to contact a specialist can be made by a judge, based on a relevant request from one of the parties.

How are responsibilities divided between co-owners?

Each co-owner is given equal rights and responsibilities in relation to the property. Owners are required to pay for housing and communal services. The law does not specify exactly how payments must be made.

For example, co-owners can determine the amount of payments according to their shares in ownership. This option may be possible by agreement of the parties or in court.

Important! Neither the decision of the owners nor the court decision is the basis for the division of personal accounts. Details in separate receipts send funds to the same personal account.

Algorithm of actions

Of course, the best option for both parties is to resolve the issue through a peaceful settlement, but unfortunately, the percentage of such agreements in judicial practice is very small.

1. The first thing an applicant should do before going to court is to assess the value of the share of residential premises for which he is applying. You can do this yourself, based on average market prices for housing, or by using the services of a qualified expert.
2. The next stage is preparing the necessary documents, making photocopies and paying the state fee. At this stage, it is necessary to decide whether there are sufficient grounds for an unequal distribution of shares among the owners of the apartment. If the reasons for this are compelling, then you also need to prepare documents confirming this (for example, birth certificates of children).
3. Then the plaintiff needs to contact an independent examination bureau, which must determine whether the allocation of a share of the residential premises is possible in principle.
4. When all the documents have been prepared, the examinations have been completed, and the price of the claim has been determined, you can begin writing the application. Again, it is better to entrust this to professionals.
5. The completed statement of claim, package of documents and receipt are provided to the employees of the office of the district court office. By the way, there is the possibility of installments of the state duty or reducing its size: this decision is made by the court based on the petition of the applicant.
6. The court's acceptance of documents is accompanied by a letter sent to the plaintiff's address.

From this moment on, he undertakes to participate in court hearings.

In case of a positive decision of the court, the applicant will be allocated a share of the defendant’s property or will be awarded monetary compensation if the allocation of a share of the residential premises is not possible according to the decision of an independent expert.

Privatization of an apartment

Housing privatization is the transfer of property rights by the state to private individuals. During the privatization process, everyone who lives in the apartment becomes its co-owner. At the same time, each person is provided with equal shares of housing.

If minors or incapacitated residents live in an apartment, their rights are represented by capable people and are controlled by the state by guardianship authorities.

Share privatization has its positive and negative aspects. For example, the positive aspects include:

• guarantee of the rights of any family member to a share of property;
• all expenses for maintenance and payment of taxes are divided among all participants;
• the right of any of the co-owners to dispose of their share is preserved, regardless of the circumstances of the allocation of this share.

The negative aspects of privatization should also be noted:

• the risk of controversial issues arising between co-owners;
• impossibility of mortgaging privatized housing;
• the emergence of certain difficulties in protecting the rights of a minor co-owner.

Thus, if you decide to privatize an apartment, you need to weigh all the pros and cons. In the future, if you transfer the share of ownership to one of the co-owners, these inconveniences can be avoided. But remember that a lending institution will not accept an apartment as collateral if minor children participated in the privatization. The child automatically becomes a participant in privatization upon his or her residence in the apartment.

Citizens have the right to claim part of a privatized apartment under the following circumstances:

• if there is registration in the apartment at the place of residence during its privatization;
• when inheriting by will or as a successor after the death of the owner (Section V of the Civil Code of the Russian Federation);
• if there is a deed of donation from the owner of the apartment;
• when purchasing a share of an apartment for a fee.

How to forcefully buy out the owner's share

It is possible to demand the forced sale of the owner's share in favor of other owners of joint real estate. According to the Civil Code (Article 252 Part 4), the owner of the share can be required to sell through the court

in the following situations:

• small size of the owner's share;
• the share cannot be identified in kind;
• the owner of the share does not have a “substantial interest” in its use.

The legality of the listed reasons was confirmed by the Supreme Court (decision No. 5-КГ17-51 of May 23, 2017). The panel of judges will take into account the age, state of health and profession of the shareholder, and assess the admissibility of monetary compensation. The size of the latter will be determined by an assessment of the cost of housing, carried out on behalf of the court.

It is almost impossible to challenge the amount of share repurchase assigned by the court. Therefore, an out-of-court agreement on the sale price may be more profitable.