How to privatize a share in an apartment, communal apartment, or dormitory?

2.7 / 5 ( 3 voices)

The issue of division of real estate during divorce is regulated by articles of a number of regulations. First of all, the Family Code and the Civil Code. In addition, various federal laws and regulations may be involved in the process. To divide a privatized apartment during a divorce in 2021, the judge, in addition to those listed, can also turn to Federal Law No. 1541-1, which regulates all the main issues related to this procedure. Let's look at what features it has.

Features of privatized housing

If citizens live in an apartment or house under a social tenancy agreement, they must be prepared for the fact that they will not be able to fully dispose of this property at their own discretion. This means that such people do not have the right to carry out legal transactions with housing. They cannot sell it, donate it, etc. And in the event of a divorce, division of an apartment in this status is impossible.

However, such living space can be privatized. Federal Law No. 1541-1 establishes that privatization is a procedure in which a state or municipal apartment can be transferred into the ownership of the citizens living in it. It is carried out free of charge. The following have the right to participate in privatization:

• a person who appears in the status of an employer;
• members of the tenant's family living in the apartment. The exception is children under 14 years of age, who must be included in the privatization agreement regardless of their place of residence, if their parents are involved in it;
• citizens who have permanent registration in the privatized apartment.

Every citizen of the country has the right to take part in privatization. But the law allows it to be implemented only once.

Goals

Allocating a room and then privatizing it allows you to become the rightful owner of the living space . From the moment of receiving the Certificate of Ownership of the room, the owner can take the following actions:

1. Conclude transactions for the alienation of a room (share).
2. Register any tenants in your living space without the consent of your neighbors.
3. Rent out a room.
4. Bequeath this living space.

The disadvantage of privatizing a separate room is the lack of rights to common areas.
From the moment of privatization of part of a municipal apartment, the owner becomes the owner of only a certain number of square meters .

He can only use the rest of the area (bathroom, toilet and utility rooms) together with other residents. He will not have property rights to this area.

Is it subject to division?

The division of a privatized apartment in 2021 occurs under the same conditions as the division of any privately owned real estate. If all family members participated in privatization, i.e. Since everyone was given a documented share in the apartment, all owners will participate in the division.

In this matter, a number of nuances will necessarily be taken into account. First of all, how many people participated in the process of transferring the apartment into private ownership, and secondly, whether a documented allocation of shares in the privatized apartment was carried out.

The property is privatized for one of the spouses

Privatization falls into the category of gratuitous transactions, just like the donation procedure. Therefore, an apartment privatized for only one spouse cannot be divided. This situation can only arise in two cases:

1. The housing was privatized even before the wedding by one of the spouses.
2. During the privatization procedure, the husband or wife issued a refusal to participate. Such a refusal cannot be reversed.

If the apartment was privatized by one person, then it will remain his property after the divorce.

A spouse who did not participate in privatization can receive part of the apartment or monetary compensation for it only if a large sum of money belonging to him as personal property was invested in the reconstruction or repair of the living space.

Privatization for both spouses

An apartment privatized for both spouses in equal shares is the easiest to divide. However, a number of apartments, even at the dawn of the adoption of the Privatization Law, were transferred into ownership without the allocation of shares. If their owners get divorced, they will have to divide the apartment either in court or by drawing up a settlement agreement on division.

On our website you can between spouses.

Under certain circumstances, the court may deviate from equality of shares in a divorce between spouses. But this requires very compelling reasons. For example, if after the divorce the children remain to live with their mother, and her financial situation is significantly lower than that of her ex-husband, and she does not have her own home. With a 100% guarantee, the share in the apartment will be increased for the spouse with whom the disabled child remains.

Privatization for children

The law establishes that minor children also have the right to participate in privatization on an equal basis with adults. Moreover, the inclusion of children under 14 years of age in the privatization agreement, if their parents participate in it, is mandatory. The apartment can even be completely privatized for minors without the participation of adults, subject to a petition from guardians or a guardianship and trusteeship authority. For the division of a privatized apartment in 2021, this fact is very important.

Rules for dividing a privatized apartment without children.

If not only husband and wife, but also children participated in privatization, then each of them is entitled to their own share in the housing. If a marriage is dissolved, parts of the children cannot be divided between the spouses.

Partition by mutual consent

If the spouses maintain a good relationship, then they have the right to determine the division of the privatized apartment without turning to court for help. There are two ways to do this. Firstly, an amicable agreement on the division of property can be drawn up between the owner spouses. Secondly, spouses have the right to draw up a marriage contract and stipulate in it issues related to the right to real estate.

Partition Agreement

Spouses have the right to draw up an agreement on the division of property both while they are married and after a divorce. It is permissible in the document to stipulate the division of only jointly acquired property. Those. if the privatization of the apartment has already been carried out and the spouses have assumed ownership rights, then the agreement may establish a slightly different procedure for the distribution of shares. When drafting, it is necessary to take into account not only all the details regarding the divisible property.

It is important to remember that an agreement on the division of property must be notarized, otherwise it will not have legal force.

It is necessary to take into account that if the apartment is privatized for a child, then his share will not be divided between the parents. Even if the spouses include a clause in the agreement about changing the ownership of a part of the child, such a document will be considered void.

Marriage contract

Unlike an agreement, which is drawn up only during the existence of a family or after its breakup, a prenuptial agreement can be concluded before the wedding or during the marriage. And if in an agreement it is permissible to delimit ownership rights only to jointly acquired property, then in a marriage contract spouses can stipulate the legal features of dividing that property that is assigned only to one of the spouses or has not yet been acquired at all.

The document can specify the details of the division of the privatized apartment. For example, if it is divided equally between spouses, it is permissible to designate the shares differently. For example, provide for one spouse the opportunity to take 2/3 of the apartment during the division of property, and the other will take the remaining part or, in the event of the birth of a child after privatization, give up his share to him.

On our website you can see examples of the distribution of shares that each spouse can claim after a divorce.

Legislative norms

The process of obtaining and disposing of spouses' real estate requires compliance with the regulations established by a number of provisions of family and civil law:

• Articles 33 and 34 of the Family Code;
• Articles 244, 253-255, 256 (clause 1) of the Civil Code.

From the point of view of the law, spouses jointly manage the household, contributing to the general family budget in any way:

• labor earnings;
• income from entrepreneurship, doing business;
• benefits from the state, pensions;
• bonuses, fees, etc.

Even if one of the spouses does not bring in income, he is engaged in housekeeping and raising children. For this reason, both the family budget and the acquired property are recognized as joint, which implies equal scope of property rights.

• Registration of a marriage contract: why and when is it needed?

When spouses intend to separate, the problem arises of formalizing the division of acquired property, including apartments, because they are in common ownership. In order to eliminate the risk of claims from the second partner, couples have the right to enter into a marriage contract that determines the personal ownership of this or that property.

Division by court order

Unfortunately, few people manage to divide an apartment during a divorce using a personal agreement. Most people have to resolve this issue through the courts. Of course, if the shares are determined and there are no accompanying circumstances that could change the situation, then there is no point in turning to the courts. However, the division of a privatized apartment in 2021 may also be associated with a number of controversial issues, which do not always relate specifically to the allocation of a share in the property. Thus, filing a lawsuit can resolve the following issues:

1. The opportunity to receive a share in the apartment if it was privatized for only one spouse. This development of events becomes possible if the plaintiff is able to prove that his personal significant savings were spent on the apartment. For example, the defendant privatized a two-room apartment before marriage, and after the wedding serious repairs were made to it, the cost of which is approximately equal to the cost of the apartment itself. Moreover, it was made with funds that his wife received from the sale of her own home. In this case, the division of the apartment is possible in equal shares, or the spouse will receive it, but he will have to pay his ex-wife compensation for the repairs carried out.
2. The right to live in a privatized apartment without time restrictions. For example, if during the period of privatization one of the spouses refused to participate in it, but at the same time had permanent registration, then the right to use the residential premises for living will continue to be retained. Those. he cannot only carry out legal transactions regarding a privatized apartment. Although rarely, courts make decisions that oblige the apartment owner to purchase housing for the second spouse. This situation arises, as a rule, if minor children remain with the wife in court, and the husband has serious alimony obligations towards them.
3. The right to temporary residence in a disputed apartment. A spouse who does not have ownership rights to it receives a limited period of residence in a privatized apartment. Typically this time period is limited to 6 months, but under special circumstances it can be extended. The right arises provided that the second spouse was registered in a privatized living space after the wedding, but does not have his own home to move out after the divorce.

Either spouse has the right to file a claim in court. But first it is better to stock up on a serious evidence base. For example, if, under the terms of a privatization agreement, an apartment is divided in equal shares between spouses, and during its operation one of them contributed a large sum of personal money to its renovation, then you should find documents that can confirm that the money was really personal property and not taken from the family budget.

Should a privatized apartment be divided?

Not really

Such evidence may include payment documents that show the movement of funds through a bank account. Witness testimony will not be taken into account by the court.

Then a statement of claim is filed in court. It must include the following points:

• the name of the body to which the claim will be filed;
• basic information about the plaintiff and defendant (full name, passport details, etc.). If there are other owners, then it is necessary to include data about them;
• the name of the document itself;
• the total amount of the claim filed;
• information about the main circumstances of the case is entered into the main block. Those. when and by whom the apartment was privatized, to whom the ownership was registered, when and where the marriage between the spouses was concluded (and was dissolved). Was the home improvement carried out and at whose expense?
• basic requirements for the claim;
• references to legislative norms that indicate the legality of the plaintiff’s claims;
• calculation of the amount due in claims;
• a list of documents attached to the application that can confirm the plaintiff’s case;
• date of compilation and signature (required with transcript).

On our website you can download a sample lawsuit for the division of a privatized apartment.

The number of copies of the statement of claim directly depends on the number of participants in the process.

When filing a claim, you must immediately provide a certain list of documents, without which the application will not even be considered (copies are needed):

• general passports of both parties and/or birth certificates;
• a document confirming the conclusion (divorce) of marriage;
• all certificates of ownership of the apartment (privatization agreement, certificate from the Unified State Register of Real Estate);
• plan of the disputed living space, drawn up in the BTI;
• certificate of the value of housing at the time of divorce. It can be ordered from SRO appraisers;
• if a minor child is involved in the division, then permitting documents from the guardianship and trusteeship authority are required;
• payment documents about the costs of the apartment;
• a receipt confirming payment of the state fee for filing a claim;
• other documents that may help establish the legality of the plaintiff’s claims.

The size of the state duty is not strictly fixed. You will have to calculate it yourself. To do this, you need to refer to Art. 333.19 Tax Code of the Russian Federation. The amount sought will directly depend on the price of the claim filed. It is better not to underestimate it, because... the deception will still be discovered and court hearings will be in jeopardy.

It is necessary to submit a statement of claim to the general civil court, which is located at the location of the disputed living space.

How to pick up your “slice”?

Unfortunately, within many families, with a large number of household members, but with very poor interpersonal relationships among themselves, the question often arises: in what way can one obtain ownership of one’s part in shared housing in order to be able to stop the painful living together in the same territory?

The first way to resolve the issue is peaceful. The easiest way to do this is by peaceful agreement of all residents, jointly agreeing on the privatization of the apartment into common shared ownership. By submitting an application to the municipality, people can independently choose what form of ownership should be established. There are two of them:

1. Joint ownership is when good-natured family relationships are established between the residents.
2. Shared ownership – when there are no good family relationships between the residents.

It will be unnecessary to say that any of the two indicated options is possible only if approved by all households living in the residential premises. If you wish, but without the consent of others, privatization cannot take place.

Can a privatized apartment not be divided?

A privatized apartment can be the property of only one of the spouses - this is the only reason why the court will refuse to divide the apartment.
Those. if one of the potential participants once issued a written refusal to participate in privatization, then this concession will not have retroactive effect. If one of the spouses has good reasons to review the shares in a privatized apartment and it is not possible to resolve this issue peacefully, then there is only one way out - filing a claim in court. It is advisable to consult a lawyer in advance to assess your chances of winning the case.

Refusal of share during privatization

A participant can refuse a share both before privatization and subsequently. In the first case, the citizen writes a statement of refusal, which is attached to the package of documents for privatization.

If the shareholder wishes to refuse in the future, then he can exercise his right by drawing up a gift agreement. The procedure is possible only upon receipt of the written consent of the donee. If the shareholder who wishes to renounce his share at the time of drawing up the deed of gift is married, then a written refusal of the spouse will be additionally required. The procedure includes notarization of the deed of gift, payment of the state duty and registration in Rosreestr.