The procedure for determining the share in a privatized apartment is necessary in cases where the shares in it were not determined before the privatization of the apartment.
In this case, the legislation of the Civil Code of the Russian Federation Chapter 16. Common property allows owners to determine their parts of the property.
The procedure has its own specifics depending on the internal relationships among the owners (often a family) and the presence of children under the age of majority in their composition.
In this article we will look at the procedure for determining the share of ownership, find out what documents are needed for this, and also try to answer the most common questions that arise from people faced with this procedure.
Important: real estate that has not been privatized cannot be divided into ownership shares, since it legally belongs to the municipality.
Possible actions
Sometimes one of the owners of a privatized apartment has a desire to dispose of his part of the property. To do this, first, you need to allocate your share. A share in an apartment is a part, percentage, or number of square meters . It cannot be said that some part of the apartment in the form of a room or part of it belongs to one tenant, because the shares exist documented, and not visually.
However, there is the concept of allocating a share in kind, when part of the apartment is allocated not only on paper, but also for specific use. To do this, there must be certain conditions, for example, the number of rooms according to the number of owners. The easiest way to allocate a share in kind is in a private home. But this is impossible to do in a one-room apartment.
Select
Since the law provides for shared ownership, a transition from common ownership to shared ownership is possible. In recent years, property has been immediately registered in shares during privatization. But previously the apartment became the common property of the residents. In order to exercise your right solely, you need to allocate the appropriate share.
You can select a share in 2 ways:
- An agreement between the owners, which will be confirmed by a notary.
- A court decision on the transfer of property into shared ownership.
Now you know how to allocate a share.
Re-register to another shareholder
You can transfer your part of the apartment in 3 ways:
- Under a gift agreement , which involves the transfer of property rights free of charge. Such a transaction between close relatives is not subject to tax, which is 13% of the value of the transferred property. The donor can transfer not only the entire share, but also part of it.
- Sell your part of the property . In the case of shared ownership of an apartment, an offer to purchase a share must first be made to the other owners. Only in case of their refusal can it be sold to a third party, and for a price no higher than that announced to the co-owners.
- Re-register your part to another owner by contacting the Russian Register. The approval of the other owners may be needed if the apartment is one-room. In other cases, the personal wishes of the transmitter are sufficient.
Now you know how to transfer a share to another shareholder. How to give up a share in a privatized apartment in favor of another owner is discussed here.
Sue
You can apply to the court for the allocation of a share if other owners do not give their consent to this. In this case, the court will review the submitted documents and decide to allocate shares to the owners. Most likely they are equivalent.
If one of the owners believes that he has the right to a larger part of the apartment than he already has, then in court it will be necessary to present compelling arguments for this. For example, if he proves a significant improvement in living conditions from personal funds.
If one of the spouses did not participate in privatization, but during the marriage invested personal funds in furnishing the apartment, then he may try to sue for part of this apartment during the divorce process. Now you know whether it is possible to sue part of the housing.
Section options
There are two options for allocating a share:
- Actually. It should be understood that in this case the apartment actually turns into a communal one. Each owner can not only use his share, but sell it or exchange it for another living space. In this case, complete strangers will live in the apartment.
- In monetary terms. The remaining owners compensate the cost of the share to the relative who wishes to allocate it.
Allocation order:
- Negotiable. It is carried out by voluntary agreement of all owners of living space.
- Judicially.
Grounds and reasons
For every legal action there must be legal grounds on which their implementation is possible.
The process of separating a part from common ownership into sole ownership is governed by Art. 244 Civil Code of the Russian Federation. It states that the common property of several citizens, by default, is shared, unless there are special instructions. You can select, guided by paragraph 5 of this article, voluntarily, or by court.
When it comes to transmission. The gift agreement, which is most suitable for re-registering a share to another owner, is regulated by Art. 572 of the Civil Code of the Russian Federation. In accordance with the information provided, the gift agreement must be gratuitous and lifetime. You cannot give property with the stipulation that the rights will pass after the death of the donor. Rights are transferred immediately after execution and registration of the agreement.
If you act through the court. You can achieve the allocation of a share in court on the basis of clause 5 of Art. 244 Civil Code of the Russian Federation. A significant inseparable improvement of common property gives the right to increase the share of the person who made such improvements, in accordance with paragraph 3 of Art. 245 of the Civil Code of the Russian Federation.
As judicial practice shows, the decision depends on the consent of other owners to increase the share in accordance with Art. 247 Civil Code of the Russian Federation. Other disputes regarding the transfer of property rights from one person to another depend on the specific situation and require legal justification in court.
Step-by-step instructions for allocating a share in 2021
- Decide on the type of allocation: in kind or monetary compensation.
- Compliance with the pre-trial procedure for resolving the situation. That is, the plaintiff must invite the other participants to reach an agreement.
- Expert review. The conclusion is ordered from a specialist and must answer the following questions:
- Availability of technical ability to allocate in kind;
- Possible allocation options;
- Number of owners and their rights to the apartment in % and m2;
- The technical condition of the premises and the level of its wear;
- The market value of the entire property.
- Drawing up a statement of claim. Selection of applications certifying the rights to property, confirmation of pre-trial negotiations with co-owners, plus an expert opinion and a paid receipt for the state duty.
- Filing a claim.
- Participation in meetings, compliance with court requirements, implementation of activities prescribed by it.
- Getting a solution. If you disagree with it, appeal.
- Registration of rights in accordance with the decision that has entered into force. This is done through the BTI and Rosreestr (the easiest way is through the MFC).
All owners will have to register changes in Rosreestr.
What should I do?
What specific steps need to be taken in the cases under consideration? Suppose you decide to allocate your share. If there is an agreement between the participants regarding the distribution of shares, then they can draw up an appropriate agreement.
- To do this, an agreement is drawn up at the notary’s office on a special form or in writing, where the share of each participant is indicated.
- Next, all owners sign an agreement.
- The notary checks the documents of all participants, the right to property, and confirms the legality of this document.
- The certified agreement is registered in the Russian Register.
If one of the owners needs a document indicating the share, he can contact the Unified State Register for an extract.
If other owners refuse to draw up an agreement, you will have to file a claim in court. Since there are direct legal grounds for this, the court will divide the common property at its discretion and allocate a share to each participant.
If there is a need to transfer a share of housing. Draw up a gift deed at a notary office. For the drawn up contract, it is necessary to prepare a package of documents with copies in 2 copies:
- Certificate of ownership. Or an extract from the Unified State Register.
- Passports of the donor and recipient.
- Extract from the house register.
- Cadastral documents.
- Consent to the transaction of the guardianship authorities, if a minor is involved in it.
- Consent of the donor's spouse.
- If the transaction is concluded between relatives, you must provide documentary evidence of the relationship in order to avoid paying tax.
Having verified the legality of the documentation and the transaction, the notary certifies it. Afterwards, the gift agreement is submitted to the Russian Register for registration. From this moment on, the distribution of shares will be changed.
You can draw up an agreement without a notary, directly in the Rosreestr.
If you need to sue for your share. To file a claim you must do the following:
- Draw up a statement of claim . The court makes decisions based on the provisions of the law, so it is necessary to provide references to laws and articles that will justify the requirements.
- Attach to the claim documents confirming the circumstances specified in the claim.
- Attach copies of your passport, certificate of ownership, technical documents for the apartment.
- Pay the state fee , which in property cases is a certain percentage of the claim price.
The court will schedule a hearing at which the case will be heard. The court decision will be handed over to the applicant within 10 days . If the decision is positive, it will become the basis for registering new property rights in the Russian Register.
Now you know how to sue for your share.
Drawing up a separate rental agreement
Is it possible to privatize a share in a municipal apartment without the consent of the other residents? If it is not possible to reach an agreement with the residents of the apartment peacefully, the privatization of a share in a municipal apartment can only be carried out by drawing up a separate lease agreement .
In this case, the last word remains with the owner of the premises, that is, local authorities.
A citizen needs to contact the settlement administration with a request to
conclude new social tenancy agreements for the occupied living space.
It is quite difficult to achieve a positive decision from the authorities in this case, since turning the apartment into a communal apartment is not profitable for the authorities.
But if there are compelling arguments and a loyal attitude from local governments, this option is still possible .
If the authorities meet citizens halfway and conclude several rental agreements with residents of a municipal apartment, each of them will become the owner of a room and will be able to acquire ownership rights to it.
If the authorities refuse to carry out the procedure, you can try to resolve the issue through the court . A citizen files a claim for the renegotiation of social tenancy agreements.
Residents must prove that there is no family relationship and they run their household separately. When filing such a claim in court, it is advisable to seek the help of an experienced lawyer.
Nuances
Due to inseparable housing improvements, you can not only ask for an increase in the share, another option would be monetary compensation for the invested funds. In this case, it will be necessary to initiate an assessment commission, the results of which will become the basis for compensation.
Privatization of an apartment by spouses is carried out into joint ownership and is subject to division after divorce, ½ part for each. If in court one of the spouses proves his investments in improving housing conditions from personal funds, then the shares can be divided in a different ratio . We wrote here about whether a privatized apartment is a jointly acquired property and how to allocate a share in it for spouses.
The court also takes into account the consent of the owners to an inseparable improvement by one of them.
However, proving agreement (disagreement) is problematic.
If at the time of privatization the rights of a citizen were violated, who subsequently received a smaller share or did not receive it at all, then it is better for him to file a claim to invalidate the privatization agreement. In court, it is necessary to prove violations committed during the privatization process.
Allocation in monetary terms
The easiest way to do this is by voluntary agreement. In this case, one of the owners buys out the share of the others and becomes the sole owner of the apartment.
The court may order monetary compensation to be paid to the owner even without his consent. This is done in cases where the share required by law is too small. In such a situation, it is impossible to allocate an isolated room, since its area is much larger than required, and the rights of other owners will be infringed.
After receiving material compensation, the citizen is deprived of all property rights to a share in the real estate.
