Compensation for a share in an apartment and its use in 2021

In the modern world, it often happens that a citizen is the owner of only a small share of real estate. Thus, several people can own an apartment, and the shares do not have to be equal. As a rule, all owners do not live in the same living space, and therefore some of them use their own and others’ shares. In this regard, other owners are beginning to wonder whether they are entitled to compensation for a share in an apartment that belongs to them, but is not used by them.

What is compensation for a share in an apartment?

If the co-owner of the apartment does not live in it and does not use the living space, he has the right to demand either compensation for the use of his share, or a part of the common property proportional to his shared ownership. This requirement arises especially often when the apartment is a source of income. For example, a co-owner rents it out and receives money from the tenants.

It turns out that compensation for a share in an apartment is compensation for losses to one of the co-owners of the apartment, which he incurred due to the fact that it is impossible to use the share for personal purposes, since the living space is in the use of the co-owners to the detriment of the interests of the person demanding compensation.

Documentation

To draw up an agreement, the following documents may be required:

• Passports of all parties to the agreement.
• Recent extracts from the Unified State Register of Real Estate confirming the existence of ownership rights.
• Title documents that indicate exactly how ownership was obtained (for example, a sales contract, a gift, a will, etc.).
• A document on the basis of which the profit was, is or will be received (for example, a lease agreement, necessarily indicating the amount of income).

When should compensation be paid for a share in an apartment?

Compensation for losses to the co-owner of the living space is due only when the apartment is owned by several participants in shared ownership, and they do not live in the apartment in question or plan to move from it to separate apartments. Regardless of what kind of situation occurs, the main thing is that the co-shareholder uses the share(s) of the other participant(s) for personal interests.

One apartment can be owned by different citizens in equal or different shares from the moment of its privatization. This most often happens when:

• relatives stop communicating with each other and move away;
• relatives sell their share to third parties;
• spouses get divorced;
• the buyer purchased only a few square meters for the purpose of registration in a big city;
• Fraudsters sold a share in the apartment to the buyer.

(966) 003-03-78

In this article we will talk about compensation for the use of a share of an apartment, which is one of the effective ways to protect the rights of the owner of a share in an apartment in the event of deprivation of his right to use the property that belongs to him. Compensation for the use of shares in an apartment is most relevant for owners of shares in a one-room apartment, since other methods of protection (moving in or not interfering with the right to use the apartment) may simply not work here.

Let's imagine a situation: there is a one-room apartment, which belongs on the right of common shared ownership to strangers who, for example, became co-owners as a result of inheritance or division of property of former spouses. As a rule, the apartment is used by one of the co-owners and members of his family.

The other co-owner is deprived of the opportunity to use the share that belongs to him by right of ownership (he may not have the keys to the new door, he may simply not be allowed into the apartment). In such a situation, the co-owner usually goes to court with a claim for non-obstruction in the use of the apartment and the obligation to hand over the keys.

The owner may be disappointed in court, since courts often reject such claims, since it is impossible to determine the procedure for using a one-room apartment. So it turns out that one co-owner does not have the opportunity to use the property that belongs to him, while still paying for utilities, and the other co-owner solely uses the entire apartment, without providing anything in return for the use of someone else’s share.

Compensation for the use of a share of an apartment is intended to eliminate such injustice.

The possibility of collecting compensation for the use of shares in an apartment is provided for in Part 2 of Article 247 of the Civil Code of the Russian Federation, according to which a participant in shared ownership, who does not have the opportunity to provide for his possession and use of a part of the common property commensurate with his share, has the right to demand from other participants who own and use property attributable to his share, appropriate compensation.

To recover compensation for the use of a share of an apartment, it is necessary to prove two circumstances: firstly, the fact that it was impossible to provide a part of the common property for the use of a co-owner in proportion to his share, and secondly, the fact that the disputed share was used by another co-owner. As a rule, these circumstances are proven by a court decision, which refuses to move in or determine the procedure for using a shared apartment.

The amount of compensation is determined by an assessment report on determining the average market rent for the use of the apartment. Compensation is calculated by multiplying the cost of the monthly rent for the apartment by the share amount.

Compensation for the use of a share of the apartment can be recovered for the past period, from the moment the plaintiff was deprived of the right to use the share of the apartment belonging to him (the date of entry into force of the court decision to reject the claim for non-obstruction in the use of the apartment), and for the future period, since the use the entire apartment is of a continuing nature, and compensation implies constant payments to the owner, who is deprived of the opportunity to obtain possession of a specific part of the property from other co-owners.

The right to collect compensation for the use of a share of an apartment does not depend on the plaintiff’s availability of other housing.

How can compensation be received for a share in an apartment?

Lawyers say that receiving compensation can occur in 2 ways:

• through concluding an agreement with the co-owners of the property;
• by filing a claim in court for compensation.

As a rule, a verbal agreement is concluded between relatives and friends, and strangers play it safe and sign the agreement in writing. Despite the fact that current legislation does not oblige the parties to an agreement to have the agreement certified by a notary, many do so in order to avoid fraudulent activities.

Settlement agreement and counterclaim

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

The parties can enter into a settlement agreement at any time until a court decision is made. In practice, judges even ask the plaintiff and defendant to leave the courtroom immediately before making a decision and still try to come to an amicable agreement.

In addition, the defendant, if he believes that the plaintiff is wrong, can file a counterclaim. Both documents will be considered simultaneously.

Collection of compensation for a share in an apartment through the court

If the owner of a small share in an apartment wants to sell it, the co-owners of the property receive a pre-emptive right to purchase - they are given 1 month to buy out the share, after which they receive the right to sell it to third parties. To prove that an offer was made to the co-owners, you will have to notify them of the value of the share in writing, otherwise the court has the right to cancel the transaction.

It would seem that the right of a co-owner to compensation for the use of his share of housing seems obvious. However, often the partners in common property are against paying him compensation, and he is forced to go to court to protect his rights. Next you have to proceed according to the following scheme:

• file a claim in the magistrate's court;
• pay the state fee for consideration of the case in court;
• prepare the required documents confirming ownership of a share in the apartment;
• prepare evidence that the share in the apartment is being exploited by other co-owners of the property.

In recent years, Russian courts have been practicing the following solution to a dispute: the owner of a larger share in an apartment undertakes to pay compensation to the co-owner of the property who owns a small share. In this case, the consent of the owner of the smaller share is not required, and most often his share is redeemed against his will. As a result, he loses his rights to a small share in the apartment completely.

This does not mean that when filing an application in court, the judge will certainly force the owner of a small share to sell his part. The decision will be made based on several factors:

• the presence or, conversely, absence of other living space for the co-owner of the apartment;
• the health status of the owner of a small share of housing;
• the possibility of allocating an entire room that would correspond in size to the co-owner’s share or a slightly larger or smaller part of it (in such a situation, an additional payment occurs for the missing part of the area).

Step-by-step instructions for receiving compensation

To receive compensation for your share, you must complete a number of steps, some of which require the involvement of a specialist who will check that the documents are filled out correctly and that they are complete. So, to go to court to file an application for compensation, you must:

1. Collect the necessary documents. The list of documents on this issue is similar to the set for other property disputes. You need to confirm the accuracy of your personal data using a copy of your passport, prove that you are registered in the apartment using an extract from the house register or “Form 7”. In addition, you need to describe your property in detail using an extract from the Unified State Register of Real Estate, as well as prove your ownership of the property.
2. File a claim. The statement of claim contains standard information: the name of the court, detailed information about the applicant, the amount of compensation for the required period (but not more than three years), an indication of attempts made to voluntarily resolve the dispute, and a reference to the law. The statement of claim must contain information about the calculation of the amount of debt. To do this, you need to obtain an official certificate of the cost of rent in a given area from the municipal housing committee. The court will not accept extracts from real estate websites or advertisements on the Internet as evidence.
3. Prepare an evidence base. In order to receive compensation for your share, along with the set of documents and the statement of claim, you also need to provide a court decision on the impossibility of determining the procedure for using the apartment and the impossibility of forced occupancy. You also need to show that you are fully responsible for your share, provide statements of payment for utilities and housing maintenance.
4. Pay the state fee. The amount of the state duty directly depends on the cost of the claim.

1. Send an application to the court, a receipt for payment of the fee and all collected documents.
2. Attend a court hearing. At this stage, you go to defend your property interests in court. At this stage, we recommend that you definitely use the services of a professional lawyer.

The application and documents are sent to the court located at the location of the disputed apartment. Issues regarding payment of compensation are considered through claims proceedings in a city or district court.

Common mistakes

Error: Relatives who have entered into an agreement on compensation for the use of a share in an apartment believe that it must be certified by a notary.

Comment: The law does not require that the agreement be certified by a notary, especially if compensation is negotiated by relatives who do not plan to deceive each other.

Error: Co-owner of an apartment who owns 6 sq.m. residential space, sells it to third parties without notifying other participants in the common property.

Comment: First of all, the share is offered for purchase to the co-owners of the apartment. If within a month they do not decide to buy out the share, it can be offered to third parties.

Agreement

There is no specific form or sample of such an agreement. The document is drawn up in free form. The main thing is that it suits all parties and includes all the necessary points. Approximate content:

• Data from all parties.
• Information about the apartment as a whole and the share for the use of which compensation is expected to be collected.
• The amount of total profit from renting out the apartment, as well as the amount due to each of the parties to the agreement.
• Responsibilities and rights of the parties.
• Signatures of all parties to the agreement and the date of its signing.

Answers to common questions about when compensation is paid for a share in an apartment

Question No. 1: My ex-husband is the owner of several square meters in the apartment in which I live with my children. He wants to sell it to a third party, does he have the right to do so?

Answer: Firstly, he must first notify you in writing about the sale of his share and its value - you will have a month to buy back the share. If your ex-spouse did not offer you to buy his share, go to court - the purchase and sale transaction will be declared invalid. secondly, the guardianship and trusteeship authorities must be involved in the case, which will convince the court that moving third parties into the apartment will harm the interests of the child.

Question No. 2: Can the court force my brother to sell me his share in the apartment if he has not been interested in it for a long time, does not pay utility bills and lives in another city? In addition, its share does not allow it to be allocated in kind; those square meters are not enough for living.

Answer: Yes, in this case the court may side with you, since the main purpose of the apartment is to live in it.

Complaint to the Constitutional Court of the Russian Federation about the inconsistency of the Constitution with paragraph 4 of Art. 252 Civil Code of the Russian Federation

Lawyers from Legal (Omsk), in the interests of L.V. Plekhanova, filed a complaint to the Constitutional Court of the Russian Federation, which contained, in particular, the following arguments:

“...According to the above provisions of Article 252 of the Civil Code of the Russian Federation, provided that the owner’s share is insignificant, cannot be realistically allocated and there is no significant interest in the use of the common property, the court, even in the absence of the owner’s consent, has the right to oblige the remaining participants in the shared ownership to pay him compensation. At the same time, an analysis of the legal norms contained in parts 3 and 4 of Article 252 of the Civil Code of the Russian Federation allows us to conclude that the procedure for forced seizure of property from the owner, enshrined in part 4 of Article 252 of the Civil Code of the Russian Federation, can be applied only if this owner makes demands for allocation of a share in kind. The right to demand the allocation of a share in court is the power of the owner - participant in the common shared property.

Within the meaning of the rules of law enshrined in Part 4 of Article 252 of the Civil Code of the Russian Federation, claims for the allocation of a share in kind indicate the reluctance of this owner to use this property together with other participants in shared ownership, the loss of interest in owning and using the share in the right to property. Therefore, the legislator makes the court’s right to terminate common shared ownership by forced seizure of property in accordance with Part 4, Article 252 of the Civil Code of the Russian Federation dependent on the will of the owner himself, who wished to allocate a share in kind. However, the legal technique of the contested norm does not allow us to come to a conclusion about its compliance with the criterion of certainty.

In our opinion, the provisions of part four, article 252 of the Civil Code of the Russian Federation, contradict the Constitution, its articles 19 (part 1), 35 (part 1,2), 40 (part 1) since they contain norms that are defective from the point of view of legal technology. The legal construction of part four of Article 252 of the Civil Code of the Russian Federation makes it possible to apply the rule of law enshrined in the second sentence of the second paragraph of Part 4, Article 252 of the Civil Code of the Russian Federation, out of context with other legal norms enshrined in Article 252 of the Civil Code of the Russian Federation, which leads to forced seizure from the owner property in the absence of the latter's will to terminate the right of shared ownership.

The indicated lack of legal construction of the provisions of part four of Article 252 of the Civil Code of the Russian Federation, which makes it possible for them to be arbitrarily applied, allows us to conclude that these provisions do not comply with the requirements of Article 19 (Part 1) of the Constitution of the Russian Federation. The Constitutional Court of the Russian Federation has repeatedly expressed itself in its Resolutions on the criteria for the certainty of a legal norm. In particular, in the Resolution of the Constitutional Court of the Russian Federation dated July 15, 1999 No. 11-P, the following was stated: “... the criterion for the certainty of a legal norm as a constitutional requirement for the legislator was formulated in the Resolution of the Constitutional Court of the Russian Federation dated April 25, 1995 in the case of verifying the constitutionality of an article 54 of the Housing Code of the RSFSR. The general legal criterion of certainty, clarity, and unambiguity of a legal norm follows from the constitutional principle of equality of all before the law and the court (Article 19, Part 1, of the Constitution of the Russian Federation), since such equality can be ensured only subject to a uniform understanding and interpretation of the norm by all law enforcement officials. The uncertainty of the content of a legal norm, on the contrary, allows for the possibility of unlimited discretion in the process of law enforcement and inevitably leads to arbitrariness, and therefore to a violation of the principles of equality, as well as the rule of law.”

The explanation contained in paragraph 36 of the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation...” does not ensure uniformity of understanding of the contested norms.

On February 19, 2009, the Constitutional Court of the Russian Federation, having considered the possibility of accepting the complaint of citizen L. V. Plekhanova, issued ruling No. 102-O-O “On the refusal to accept for consideration the complaint of citizen Lyubov Vasilievna Plekhanova about the violation of her constitutional rights by the provisions of paragraph 4 Article 252 of the Civil Code of the Russian Federation.”

The Constitutional Court of the Russian Federation recalled that

“... in Ruling No. 242-O-O of February 7, 2008, the Constitutional Court of the Russian Federation indicated that the very norm of paragraph 4 of Article 252 of the Civil Code of the Russian Federation, establishing that the payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is allowed with his consent, and in cases where the owner’s share is insignificant, cannot really be allocated and he does not have a significant interest in the use of common property, the court, based on a study and assessment in each specific case of all relevant circumstances of the case, may, even in the absence consent of the allocated co-owner to oblige the remaining participants in the shared ownership to pay him compensation, is aimed at achieving a balance of interests of the participants in the common property and cannot be regarded as violating the constitutional rights of the applicant specified in the complaint ... "

Judicial procedure: instructions

You can attract co-owners to pay compensation according to the following scheme:

Firstly , try to resolve the issue peacefully - negotiations, persuasion, complaints.

Secondly , collect strong evidence:

• copies of the rental or rental agreement;
• witness statements;
• statements of receipt of funds (non-cash method);
• photo, audio, video;
• receipts, advance agreements, deposits, etc.

Thirdly , file a statement of claim and attach documents.

Fourthly , pay the state fee for the application.

Fifthly , send or submit documents to the court.

Sixth , attend court hearings, make a claim against the defendant(s), argue your position, request petitions (for example, a forensic assessment).

Seventh , wait for the final decision of the court (file an appeal if the decision is not in your favor).

Finally, start collecting compensation - interaction with bailiffs and the bank.

The land plot is located in two territorial zones

Good afternoon I, an individual entrepreneur, purchased a plot of land, land category: settlement land, purpose: for the further operation of the car wash building and the technical service point building. According to the master plan of the land plot, it is located in two territorial zones: the zone of construction of multi-storey buildings (Zh-3) and the zone of road transport facilities (T-3).

The reduction of the general plan of the land plot to one zone was refused. What can you do in this one?

FOR FREE

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

1. via the form (below), or via online chat
2. Call the hotline:

The history of the issue of conflicts between participants in shared ownership in residential premises (apartments, houses) goes back more than one decade, often becoming public knowledge when one of the co-owners (when there are several owners in an apartment, then each of them separately in legal language is called a “co-owner” ) in an attempt to defend his rights to a normal life, uses all methods - from contacting the police, to involving the media...

However, the inevitable result of such actions is, for the most part, only the embitterment and deepening of opponents’ principles.

No one wants to give up anything voluntarily and will not, so you have to be smarter here...

It’s no secret that buying shares in apartments and rooms with grumpy neighbors has already become a good business for a certain category of “buyers”. People buy shares and go to “agree” on how to continue to live together, and not everyone can stand such “offers”; as a result, many lose both their housing and their last money.

What to do if a neighbor appears in your apartment/house who doesn’t let you in, doesn’t allow you to live in the apartment, creates obstacles in your use, and claims that nothing will happen to him for this...

The answer is simple - make him pay for it, or even better, make him pay constantly.

For a long time, the mechanisms for holding such share buyers accountable did not work, but now judicial practice has gradually begun to change... The courts began to proceed from the position that if there are several owners in a residential building and one of them is not allowed to use the apartment, then the pest must pay the injured party for this monetary compensation.

The algorithm of actions in such situations (taking into account how the courts consider such cases) should look like this:

1. You must, by contacting the police and sending letters and telegrams to the apartment about not causing obstacles to the use of the apartment (or other residential premises), record the fact that obstacles have been created to you in getting into the apartment. This question is the cornerstone for all subsequent actions.

As a result, you should have in your hands documents from the police stating that you were refused to initiate a criminal case with a description of the essence of your application and the verification measures carried out by the police on your application (in 99% of cases they issue a resolution to refuse to initiate a criminal case and offer to apply to the court about not causing obstacles in the use of the apartment), and have in hand copies of letters and telegrams that you sent to the apartment demanding not to interfere with its use, etc. (You must keep the originals of postal receipts).

2. After you have done this work, you will need to go to court at the location of the residential premises with a requirement that other co-owners not interfere with your use of the apartment, moving in and the obligation to issue keys to the apartment.

In this claim, it will be necessary to indicate: from what moment these same obstacles are being put in place for you (take the date from the Applications to the police and your letters). As a rule, trials in such cases drag on for quite a long time and for the most part end with a decision in your favor, although it happens that they refuse to move in... citing the fact that you are not members of the same family, that the apartment is small, that there is no real opportunity to use there is no apartment for everyone together.

But in this case this is not of fundamental importance, the main thing is that the court decision should record and confirm that from such and such a date there will be obstacles in your use of the apartment. All.

3. As soon as the court decision, which establishes the fact of obstructing your use of the apartment, enters into legal force, you can proceed further, namely, demand monetary compensation from other co-owners for these illegal actions.