Forced purchase of a share in an apartment

Grounds for buying out the owner's share in court

Termination of property rights is possible only in cases specified by law : when the owner alienates his property to other persons, destruction or destruction of property, renunciation of property rights and in other cases of loss of property rights.

For the forced seizure of property from the owner, legal grounds are required, the list of which is listed in Article 235 of the Civil Code of the Russian Federation, and is exhaustive.

One of these grounds is the alienation of property provided for in paragraph 4 of Article 252 of the Civil Code of the Russian Federation.

This provision of the law provides that payment of compensation to a participant in shared ownership instead of allocating his share in kind is allowed only with his consent. However, the court may, even in the absence of the consent of this owner, oblige the remaining owners to pay him compensation, but only in the presence of a combination of three exceptional circumstances:

The share of this owner is insignificant (for example, 1/21 share in the common property)
The share cannot be actually allocated (cases when it is an apartment or room with one entrance, there is one bathroom, one kitchen)
This owner does not have a significant interest in the use of the common property (he does not actually live in the residential premises and does not need this housing)

If only one or two of these factors are present, forced redemption of a share is impossible. It is no coincidence that the legislator established the need for the simultaneous presence of these factors, since otherwise the balance of interests of participants in common property will be upset.

For example, if the owner of a microshare, nevertheless, lives in this premises and has no other housing, then this indicates that he has a significant interest in using his share. In this case, even the fact that the share is insignificant and the impossibility of allocating it will not be grounds for depriving him of housing.

In addition, according to the position of the Constitutional Court of the Russian Federation in a number of definitions (including dated October 13, 2009 No. 1359-О-О), the court, when considering a case and resolving an issue and whether or not a person has a real interest in using a minor share, must also establish how commensurate this interest is with the inconvenience that may be caused to the other owner.

In practice, the courts also find out when and how the ownership of each of the co-owners arose, whether the owner acquired an insignificant share, knowing that the largest part of the residential premises belongs to someone else, and that his small share will not allow him to live in this premises together with others ; whether the owner of a small share abuses his right, for example, using his share to register other persons, trying to rent, etc.

Conclusion: Judicial repurchase of a small share in the common property is possible , despite the complexity of these disputes.

This position is confirmed by the Supreme Court of the Russian Federation , in particular, in the ruling dated 04/03/2012 No. 5-B11-134.

Moreover, in August 2021, the Supreme Court of the Russian Federation, in cassation, issued an unprecedented ruling in civil case No. 78-KG16-36, which overturned the decisions of the lower authorities of St. Petersburg, which rejected the claim for the forced purchase of a 1/3 share in a three-room apartment, with that the defendant's share corresponded to a separate room. The Supreme Court of the Russian Federation indicated that the lower courts did not take into account that the defendant does not actually use his share, using the room only to store his things, and does not bear the costs of its maintenance, i.e. has no interest in using its property, and also noted the defendant’s dishonesty and other circumstances that make it possible to recognize the defendant’s share as insignificant.

Of course, such a case requires a competent approach from a lawyer who will be able to correctly apply all the technologies of evidence, and if the conditions established by law are met, the case on the forced purchase of a share in a residential premises will be won.

Algorithm of actions

Before the start of the trial, the party wishing to buy part of the apartment can document an attempt to resolve the issue peacefully.

The legislation does not provide for a mandatory pre-trial procedure for resolving the conflict, but in court this fact can be assessed in favor of the plaintiff. You just need to send a buyout offer to the owner of the disputed share, setting a response period, after which you can resolve the conflict situation through the court.

The forced purchase of a share in an apartment is carried out according to the following algorithm:

Preparation of necessary documents and evidence. The plaintiff’s task is to prove in court proceedings that all three conditions of the buyout are met. To do this, he has the right to provide any evidence relevant to the case.
Estimation of the value of a minor share.
Drawing up a statement of claim.
Payment of state duty.
Submitting the claim to the district court.
Depositing funds for the redemption of the share on the deposit of the court (is security for the claim). Only after the funds have been received does the legal process begin.
Participation in court hearings.
Receiving a court decision, waiting for it to enter into legal force (during this period the decision can be appealed by the defendant).
Transfer of funds from the court deposit to the owner of the redeemed share.
Registration of transfer of ownership.

List of documents

The main documents that must be attached to the statement of claim, including those substantiating the plaintiff’s position:

applicant's passport;
extract from the Unified State Register of Real Estate;
title documents for residential premises;
certificate of registered persons;
registration certificate;
documents confirming the plaintiff’s position;
expert opinion on the valuation of the share in the apartment;
letter about the redemption of the share and the response to it (if any);
document confirming payment of state duty.

This list can be supplemented with any documents based on the characteristics of each specific case.

Statement of claim

When preparing a statement of claim, the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation must be met.

It should contain the following information:

name and location of the court;
Full name, address, contact details of the plaintiff and defendant;
name of the claim;
description of the situation (reasons for forced redemption, size and price of the share, reasons for owning it, information about an attempt to resolve the issue pre-trial);
the plaintiff’s demands and references to articles of legislation;
list of documents attached to the claim;
date and signature of the applicant.

If the plaintiff manages to document the stated demands, then, most likely, the court will be on his side and make a positive decision for him.

Procedure for calculating state duty

The state fee when filing a claim is calculated based on the value of the share of the residential premises indicated in the assessment report.

When calculating it, the rules of paragraphs are applied. 1, clause 1, art. 333.19 Tax Code of the Russian Federation:

up to 20 thousand rubles. – 4% of the amount, but not less than 400 rubles;
from 20 to 100 thousand rubles. – 3% of the amount over 20 thousand rubles. + 800 rub.;
from 100 to 200 thousand rubles. – 2% of the amount over 100 thousand rubles. + 3200 rub.;
from 200 to 1 million rubles. – 1% of the amount over 200 thousand rubles. + 5200 rub.;
more than 1 million rubles - 0.5% of the amount over 1 million rubles. +13200 rub. (but not more than 60 thousand rubles).

Deadlines

The Civil Procedure Code regulates the terms of legal proceedings when resolving property disputes at each stage of consideration of the application:

acceptance of the claim for consideration - 5 days from the date of filing the application (if the statement of claim is drawn up in violation of legal requirements, it will be returned to the plaintiff);
trial – no more than 2 months (subject to timely attendance of the parties at scheduled court hearings);
additional terms for consideration of a legal dispute - up to 6 months (if the parties fail to appear and court hearings are postponed, additional examinations are ordered, new petitions are filed);
entry into force of a court decision – 1 month (Clause 1, Article 209 of the Code of Civil Procedure of the Russian Federation).

The final duration of the trial will also depend on whether the defendant exercises his right to appeal the court decision.

Going to court

Cases of forced redemption are subject to consideration by the district court at the location of the property in which the share is in dispute.

There are several ways to send a statement of claim and all supporting documents to the court:

Through the court office. All copies of the statement of claim are accepted by the office employee, and the plaintiff’s copy is marked with acceptance of the statement.
By post. Sent by registered mail with notification to the address of the judicial authority.
Through the official website of the court. Documents can be submitted electronically through your personal account on the Internet portal of State Automated System “Justice”.
Through a representative. In this case, the right of the representative to bring a claim in court must be reflected in the power of attorney (Article 54 of the Code of Civil Procedure of the Russian Federation).

Trial

The condition for starting a lawsuit on a claim for forced redemption of a share in an apartment is that the plaintiff deposits funds for the redemption of the defendant’s share on the court’s deposit.

This action is an interim measure, namely a guarantee that after the court makes a decision in favor of the plaintiff, he will be able to execute this decision.

As soon as the court decision comes into force, the funds are transferred to the defendant’s account.

Attention! If a decision is made in favor of the defendant, the funds are returned to the plaintiff in full.

Forced buyout of shares and pre-trial procedures

This category of disputes necessarily require compliance with

However, it is still recommended to try to negotiate peacefully with the other party, and it is better to do this by sending a written offer to buy out his micro-share from the co-owner, and wait to receive a response, or make sure that there is no response. After this, you can safely go to court with a statement of claim.

Why is this needed? In practice, courts very often clarify this issue and take into account if the plaintiff tried to find a compromise with the defendant before the trial, and this may become one of the arguments for a positive decision for the plaintiff.

In addition, the law states that a dispute between participants in shared ownership must be resolved in court precisely if the owners fail to reach an agreement on the method and conditions for dividing the common property or allocating the share of one of them.

Thus, the fact of sending a written proposal will reliably indicate that the parties have not reached an agreement on this issue.

Legal support in disputes involving the repurchase of a minor share. Tel.+7 (812) 989-47-47 Telephone consultation

Arbitrage practice

When considering claims of this type, the court relies on:

Article 247 of the Civil Code of the Russian Federation – use and ownership of property in shared ownership.
Article 252 of the Civil Code of the Russian Federation – division of shared property.
By definitions of the Armed Forces of the Russian Federation No. 46-KG16-8, 18-KG16-65 and 5-B11-134.

However, it is not always the case that a small share is truly absolutely insignificant. Some apartments can reach several hundred square meters in area and even 1/10 of them - this is a solid room that can really be used separately from the rest of the housing.

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The Constitution of Russia enshrines the right of Russians to the inviolability of private property by the provisions of Art. 35, allowing forcible deprivation of property only in court.

If there is no common decision between the parties regarding the transfer of the owner's rights through the redemption of part of the property, this can be done forcibly through court proceedings. Appeals to the court demanding the opportunity to buy out a share in the apartment come from the co-owners of the remaining part of the property, if it was not possible to immediately resolve the issue of registration conditions peacefully.

What does the legislation say?
The problem of ownership and use of shared property
Grounds for forced repurchase
The order and procedure for the redemption of shares by court decision
Procedure
Difficulties of the procedure
Legal support
The court's position on issues of share repurchase

How the value of a minor interest is determined and paid

Of course, the parties have a dispute regarding the value of such a share, and only a professional appraiser can resolve this issue.

An examination of the value of property can be ordered by the court at the request of the parties, however, such an assessment can be carried out by the plaintiff before filing a claim. The appraiser's conclusion will be accepted by the court if the defendant does not challenge this assessment and does not file a petition to order a judicial assessment of the property.

When accepting a claim for his proceedings, the judge takes measures to secure the claim and issues an appropriate ruling, according to which the plaintiff must transfer to the deposit account of the Office of the Judicial Department under the Armed Forces of the Russian Federation an amount of money equal to the market value of the purchased share of the property. The receipt for the transfer of funds to the deposit of the Office of the Judicial Department is attached to the case.

Since the plaintiff will not be able to independently determine the real value of the share, it is recommended to conduct a pre-trial assessment of the property.

In any case, if the claims made by the plaintiff are satisfied, all costs of the assessment (both pre-trial and judicial, including if both assessments were carried out) will fall on the shoulders of the defendant.

What does the legislation say?

When resolving disputes regarding private property, interested parties proceed from the norms of civil law. In particular, Art. 288 of the Civil Code of the Russian Federation empowers the owner to own, use, and dispose of property at his own discretion within the framework of actions permitted by legislative acts.

The problem of ownership and use of shared property

Privatization, maternity capital program, inheritance and other life situations provide grounds for the appearance of several owners of one property at once. Apartments, residential premises, and other forms of real estate are subject to shared division.

The provisions on shared ownership are covered in Art. 244 Civil Code of the Russian Federation.

Owners of shares become family members and persons who do not have family ties with each other (purchase of a share, inheritance, division of property).

In conditions where 2 or more families have to share one space, questions and controversial situations regarding the implementation of the right of use are inevitable, determined in accordance with a court ruling on the basis of Art. 247 Civil Code of the Russian Federation.

Peaceful coexistence in an area of less than 1 living room is almost impossible, which forces the co-owners to decide on the issue of further residence. Microshares can be 1/10 or 1/100 of the entire area of the property, and situations are inevitable when the use of residential property entails a violation of the rights of other residents.

Grounds for forced repurchase

The need for a legislative norm that would solve the problem of forced redemption by co-owners led to the appearance of Art. 252, concerning the division and allocation of shares of property classified as shared ownership.

Based on the provisions of the article, the parties must be guided by the following procedure:

Shared ownership is divided between the owners on the basis of a voluntary agreement.
If a co-owner wishes to receive an allocated share, he has the right to declare his claims.
If a peaceful agreement is impossible and there are unresolved disputes about the procedure and conditions for the allocation, they go to court demanding the allocation of a share from the common property.

Often the size of the share does not allow the formation of ownership rights in the volume of a separate room, which causes violations of the rights of use of co-owners. In such situations, based on clauses 3 and 4 of Art. 252 of the Civil Code of the Russian Federation, the owner demanding allocation receives proportionate monetary compensation from other participants in shared ownership.