Not every citizen can boast of a huge amount of savings or a high income that could allow him to buy his own large apartment. Most often, citizens are in conditions of acute financial constraints, but they still try to buy their own housing.
In such a situation, the solution may be to buy a room in a dorm or communal apartment. You need to be prepared for the fact that there will be a huge number of neighbors in such a room, and you will have to somehow coexist peacefully with them.
In addition, such real estate is often sold illegally without following a special sales procedure regulated by law. We’ll tell you in our article what unpleasant surprises can await you when purchasing a room in a dorm or communal apartment, and how to avoid pitfalls.
Features of this type of property
First of all, it is worth deciding what kind of residential premises has the status of a communal apartment?
- All owners of residential premises own it on the basis of various documents (social tenancy agreements or certificates of ownership).
- Payment for housing and communal services is made through different personal accounts created for each of the owners.
- The common areas in the apartment are shared ownership of the owners.
Let's take a closer look at the features of selling a room in a communal apartment or dormitory.
Pre-emptive right to purchase
Important! The main feature of selling a room in a communal apartment is the pre-emptive right to purchase from the co-owners of the premises.
The law is regulated by Art. 250 of the Civil Code of the Russian Federation, which indicates the advantage of participants in shared ownership when selling a share, and also establishes the procedure for exercising this right. But part 6 of Art. 42 of the Housing Code of the Russian Federation indicates the same right specifically for a communal apartment.
Who has it?
All persons who own a share in the apartment have an advantage, regardless of the size of their participation in shared ownership. The emergence of such a right is quite natural, because people living in communal apartments will be able to improve their living conditions.
However, the preemptive right when purchasing a share in a communal apartment appears when a person sells it to an outsider , but if the transaction is made with another shared owner, then no advantage arises.
That is, if other shareholders in the apartment also want to buy a room, then the seller has the right to choose a buyer at his own discretion.
○ How to avoid problems?
Although there are some complications, the risks of buying a room can be reduced by taking reasonable care.
✔ Checking the seller’s documents.
To avoid unpleasant surprises, double-check the information provided by the seller. To do this you can:
- Order an extract from the Unified State Register of Real Estate, which will indicate information about registered persons, the history of the room and the presence of encumbrances.
- Contact the Management Company or Housing Office, where you can find out about the presence of debts for utilities.
✔ Help from realtors.
Turning to professionals will also reduce the risks when purchasing real estate. A good realtor will not only help you find a suitable purchase option, but will also check it yourself. In addition, the presence of a third party in the transaction increases its reliability.
Notice of intention to complete a transaction
Article 250 of the Civil Code of the Russian Federation not only describes the preemptive right of participants in shared ownership, but also introduces a procedure for notifying them of the intention to sell the room. Moreover, this must be done without fail.
After receiving the notification, the owners are given a month to make a decision on purchasing the room . If within a month none of them bought the room, then the owner has the right to sell it to strangers.
There are three legal options for transmitting such a notice:
- Personally in hands .
The seller personally gives notice to each neighbor and obtains their signatures agreeing to sell. Attention! This method is possible, but in the event of a trial, such refusals to purchase will have weak evidentiary value. - Sending by registered mail or telegram with notification . This method is possible if all co-owners live together, or if the seller knows exactly their residential address. In other situations, it will be extremely difficult to prove anything in court, despite the fact that the Civil Code has introduced liability for evading important messages (Article 165.1 of the Civil Code of the Russian Federation).
- Sending a notification through a notary . The main and only disadvantage of this method is the price of notary services, especially if there are several owners and they all live at different addresses. Otherwise, this is the most reliable option, since the notification is drawn up by a notary, certified by him, sent to the co-owners, and as a result, the Seller is issued an official certificate of filing of notifications.
Expert opinion
Vasiliev Oleg Borisovich
Many years of experience in various areas of law
Formally, the law does not provide for the concept of a “communal apartment”; in fact, it is housing with separate rooms rented out to the citizens living in it under social tenancy agreements. Separate contracts and personal accounts, respectively. That is, it is communal due to the current circumstances, but not according to the terminology of the legislation. In fact, this is the legacy of the USSR (RSFSR) with some norms that have not been preserved in the Russian Federation. According to Federal Law N 1541 “On the privatization of housing stock” dated 07/04/1991, privatization in such municipal apartments, that is, communal apartments rented under a social tenancy agreement, was not allowed, which was declared unconstitutional by the Constitutional Court of the Russian Federation (Resolution 03.11.1998 N 25-P ) and was subsequently cancelled, which means the possibility of privatization as usual. Thus, such living space can simultaneously contain privatized and non-privatized (under a social tenancy agreement) premises.
Cases where there are only owners in a communal apartment are the simplest when selling their share. Here it is only worth noting that in addition to notifying neighbors about the sale, the issue of the common property of the owners is no less significant. If the room(s) of such an owner are exclusively his property, then the common property (corridors, bathroom, kitchen, balcony) is divided proportionally according to the size of his room with all other owners. Similarly, when determining shares in the common property of the entire apartment building where the apartment is located. Even though common property is in joint use, the procedure itself is determined by agreement between the owners or the court. Thus, in the event of purchasing a share in a communal apartment, shares in the common property are also purchased.
If there are no privatized shares in such an apartment or they are only partially privatized, then in the first case it is first necessary to privatize, which can be done by everyone together or at the discretion of the responsible tenants, and then disposed of at their own discretion, including sale. In the second case (if there are non-privatized shares), the owner who intends to sell his share must notify only neighboring owners of this intention.
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How to prepare a document?
You must specify:
- Full name, passport details of the seller.
- Full name of the person to whom the notification is sent.
- The essence of the notice is that the Seller (full name) is selling his share in the common ownership of the apartment on the basis of (the details of the Certificate of Ownership are indicated).
- The size of the share and the address of the apartment are indicated.
- Share price. If the seller decides to change the price of the room, then all neighbors will have to be notified again.
- A proposal to exercise the preemptive right of ownership on the basis of Article 250 of the Civil Code of the Russian Federation and purchase the share being sold within a month, or notify in writing of the refusal to purchase.
- An indication that if there is no response, the sale of the share will be carried out without the consent of the neighbor.
- Date, signature, full name.
Neighbors avoiding receiving paper
It often happens that co-owners of an apartment avoid receiving notifications, do not respond to notifications, and otherwise prevent the sale of their share. If you expect that your neighbors will interfere, it is recommended that you send your notices through a notary .
The fact is that the notary, after attempting to serve the notice and not receiving any response from the neighbors, after a month issues a certificate stating that the Seller has made all possible attempts to notify the owners of the upcoming transaction. This document is enough to calmly complete the sale.
○ Advice from a lawyer:
✔ We bought a room in a communal apartment, but one of the residents filed a lawsuit because he was not offered to buy this room during the sale, what to do?
If the plaintiff is telling the truth, and the pre-emptive right was indeed not respected, he has the right to challenge the purchase and sale transaction. In this case, you can file a counterclaim for bad faith against the seller and demand a refund.
✔ After buying a room, the neighbors began to demand that we move out, since they used this room before, and it is now considered “theirs”, what should we do in such a situation?
If the apartment was purchased legally in compliance with the right of pre-emption, feel free to call the police. But first, collect evidence of violation of your personal space (photos and videos, testimony of witnesses are suitable) and contact the police. After an administrative fine is imposed, they are likely to reconsider their behavior.
Video
In this video, a real estate agency specialist will tell you how to choose the right small-sized housing and correctly complete the transaction.
Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal
Receiving a refusal to purchase from other owners
An important question is whether it is necessary for neighbors to refuse to acquire the sold share in the common property right. The answer to this will be in the affirmative.
Important! If a neighbor refuses a share of housing, then the fact of this refusal must be documented.
It is best to fill out an application for refusal to purchase from a notary , since Article 250 of the Civil Code of the Russian Federation in part 3 provides for the right of neighbors to challenge the sale of a share to an outsider within three months. A notarized refusal will help protect yourself from such surprises.
To register a refusal you will need:
- Personal presence of the owner to whom the offer to purchase the share was made; his passport.
- Certificate of shared ownership.
How to apply?
- Date and place of document preparation.
- Full name, passport details of the person waiving the pre-emptive right.
- Full name, passport details of the seller.
- Address of the apartment, characteristics of the share being sold (area of the room and share in the common property).
- The price set by the seller.
- Signature of the person who waived the right of pre-emption.
- Notary's stamp.
Validity
Waiver of preference when purchasing a share in the right of shared ownership does not expire . The owner is obligated to notify neighbors again only if he has changed the price of the room. Moreover, this only concerns a reduction in price relative to the amount specified in the Refusal. A price increase does not entail the obligation to notify neighbors again.
What information you need to clarify before purchasing:
- How many people are registered in this apartment and how many of them live.
- Do the owners of the remaining rooms have a desire to improve living conditions at the expense of the housing being sold?
- How and on what grounds do neighbors use common property.
It is important to make sure that all owners of communal housing have refused to buy out. A purchase and sale is considered legal if it is made on terms identical to those offered to neighbors. If one of the rooms of a communal apartment is owned by the municipality, then local authorities also have the right to lay claim to the living space being sold.
If the owner of any rooms died, then the heirs must refuse the ransom. Within six months from the date of death of the owner, they have the right to claim rights to the property. A purchase without their consent may be contested, and rights and obligations will be transferred to the heirs.
It makes sense to talk to the residents of apartments nearby in order to find out information about the owners of the room and inquire about the past of the property. For the same purpose, you can request a detailed extract from Rosreestr, namely the history of the transfer of rights, in which past transactions will be visible.
Is it possible to sell a premises in a communal apartment without the consent of the neighbors?
Important! It is impossible to sell a room in such an apartment without obtaining the consent of the neighbors. This will be the basis for challenging the transaction and declaring it void.
This option is only possible if the room is sold to one of the co-owners, that is, to one of the owners of another room in the same apartment.
What if they are against it?
Situations often arise when neighbors are against the sale of premises in a communal apartment and prevent this in every possible way. This can manifest itself both in scandals, attempts to survive a neighbor, to disrupt viewings of the room by potential buyers, and in threats not to sign a waiver.
In the latter case, they show their legal illiteracy, since Art. 250 of the Civil Code of the Russian Federation gives neighbors a period of time to purchase or refuse, while the absence of a response is regarded as a refusal of the advantage in purchasing . Another way to prevent a sale is to enter into an agreement to purchase a room in response to a notice.
At the same time, the neighbors are not going to buy it, they are stalling for time and postponing the date of the transaction. What can protect the seller in such a situation? You should spare no expense and contact a notary who will certify your neighbor’s consent to the purchase.
The agreement must indicate:
- the exact period of the purchase and sale transaction;
- the price for which the room is sold;
- confirmation by the Buyer of awareness that if the transaction fails due to his fault, he will be deprived of his pre-emptive right, and the Seller may sell the room to unauthorized persons.
If relations with neighbors are not built on mutual respect, and you anticipate even the slightest possibility of problems with them, it is worth hiring an experienced realtor who will help organize the sales procedure.
If you are going to sell a share in an apartment or a room, we advise you to read the information about whether this is possible if the owner is a minor citizen.
○ Registration procedure.
The transaction is concluded according to the standard purchase and sale scheme with the execution of a written agreement with mandatory state registration. Let us consider in detail all the nuances of the agreement.
✔ What documents are needed.
To complete the transaction, the seller must provide:
- Passport.
- Title documents for the room.
- Grounds for obtaining ownership rights (sale and purchase agreement, will, gift or exchange agreement).
- Cadastral and technical passports.
- Certificate about: - family composition; - no debts for utilities.
- Notarized consent of the remaining owners (if we are talking about a room in the apartment).
- Notarized consent of the spouse.
When completing the transaction, the buyer only needs a passport and the consent of the spouse to purchase.
✔ How to draw up an agreement?
The text of the agreement must contain the following points:
- Details of the parties.
- Detailed description of the subject of the transaction (in accordance with the technical passport).
- Transaction amount.
- Method of transferring money.
- Rights and obligations of the parties.
- Force majeure circumstances.
- Additional conditions (by agreement of the parties).
- Date, signatures.
The agreement is drawn up in simple written form and does not require the participation of a notary. But it must be registered with Rosreestr to verify the “purity” of the transaction.
✔ Advance before payment.
Making an advance payment provides certain guarantees to each party. Thus, the buyer can be sure that the room they like will not be sold to someone else, and the seller can be sure that the buyer will not change his mind about concluding the deal.
The transfer of the advance payment is formalized by a separate advance payment agreement, which the parties independently conclude between themselves. It is worth considering that the transfer of funds must be recorded. To do this, the seller must write a receipt that he received an advance payment.
✔ What risks might there be?
The risks when buying a room are the same as when purchasing a full-fledged apartment. This:
- Legal purity of real estate.
- No encumbrances on housing.
- The presence of registered persons who do not live in the apartment, who can show up at any time.
Another danger when buying a room is the risk of not getting along with your new neighbors.
✔ Donation agreement or purchase and sale agreement.
If the seller offers to draw up a gift agreement and simply transfer the money to him, do not rush to agree. If for some reason a situation arises where the transaction has to be contested, you will not be able to get your money back, because the gift agreement is gratuitous. And you won’t be able to prove that the money was paid unless there is at least a receipt.
✔ Lack of consent of other persons registered in the apartment.
Under no circumstances can you sign a purchase and sale agreement if the presented package of documents does not contain written consent to the sale from other registered residents or neighbors in the communal area
apartment. In this case, they can easily challenge the deal in court. They have a similar opportunity for 3 months from the date of the transaction.
✔ Fraudulent actions.
When buying a room, you always run the risk of encountering scammers. To avoid such consequences, it is important to carefully check all documentation and personally request some documents.
✔ Fraud with advance payment.
A common scam is when a seller takes an advance from several potential buyers and then disappears. To avoid this, it is necessary to enter into an advance payment agreement, which will become the basis for going to court.
✔ Unchecked room occupants.
This is another important point that needs to be taken into account when completing a transaction. If at the time of signing the contract there is an undischarged person in the room who is serving time in prison or is declared missing, he can easily challenge the deal after returning. Therefore, buying a room in such a situation is extremely risky. Knowing this, many sellers hide this fact when concluding a contract. To avoid this, personally order an extract from the USRN, which will indicate all the persons registered in the room.
