How to divide an apartment that is in shared ownership during a divorce

Common property owned simultaneously by several persons is considered shared property. For example, a husband and wife bought a new apartment and incurred equal costs, and therefore the documents reflected the fact that 50% of the real estate is the property of each family member.

There are two options for allocating part of the property. The first of them does not violate the principles of common property. Having formally received rights to part of the property, you will not be able to dispose of it without the permission of the other co-owner. But allocating a share in kind allows you to dispose of your part of the property. The owner can sell the share of the home or receive compensation for it from the co-owners.

You can allocate shares and record the fact of shared ownership using an agreement. In this case, the parties agree and decide how to correctly allocate parts of the common property, and then write down all the details in the document, sign it and notarize it.

However, in practice there are cases when it is not possible to reach an agreement, which means that the conclusion of a peace agreement is cancelled. Then questions about the share of common property are resolved with the help of the court. You need to prepare your arguments well and collect a high-quality evidence base. A professional lawyer can help you with all this, as well as in drawing up a statement of claim. Family and housing disputes are most often complex and conflict-ridden, so choose a specialist who will defend your interests in court.

In what cases is it impossible to allocate a share?

Sometimes you can’t do without allocating a share. For example:

• if spouses are divorcing and planning to divide jointly acquired property;
• if the property was received as an inheritance, but there are several heirs;
• if one of the owners wants to dispose of their part, for example, sell it or rent it out.

Sometimes selling a share of property is the only way out in the current life situation. In order for the owner to dispose of his share, it is necessary that it be determined in kind. But in practice this is not always possible. For example, it will not be possible to determine the physical part of the property if it is:

1. Will make it difficult for other owners to access common areas, such as the kitchen or bathroom.
2. Will entail redevelopment, which may pose a threat to the lives of residents.
3. Makes other areas of the property uninhabitable. For example, according to Article 16 of the Housing Code of the Russian Federation, if a room does not have a window, then it is not suitable for living.
4. It will violate the legitimate interests of organizations, for example, a credit institution (if the apartment is pledged to the bank), or individual citizens, for example, a disabled person living in the apartment, who will have limited access to public areas.

In fact, separating shares from common property is not difficult. You need to decide on the size of the parts and record the agreements on paper.

In this case, the property remains common, you cannot dispose of your part of the property, you just now know its size. But difficulties may arise when you change the type of ownership from common to shared, and also if part of the property is allocated in kind.

Apartment status in shared ownership

When an apartment is in common shared ownership, any of the owners can freely use it, while bearing the obligation to pay for the maintenance of the object, based on the size of their share.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The co-owner should remember that use must occur with the consent of the other co-owners. If the shareholders have not come to a common decision on this issue, then the controversial situation is considered in court, which will determine the procedure for using the joint property.

Everything is quite simple when the disputed apartment is registered only in the name of spouses. It doesn’t matter ½ for each or ¼ for husband and ¾ for wife, for example. The situation becomes more complicated if, in addition to the spouses, there is a third (or even subsequent) participants in the shared ownership - children, parents, third parties.

Any shareholder can use the apartment, taking into account his share, or contact the other participants in shared ownership with an offer to pay monetary compensation for his part.

In addition, it is possible to sell the share. However, it should be remembered that other owners have the right of first refusal, to comply with which it is necessary first of all to notify them of the upcoming sale and offer to buy out the share. If shareholders do not wish to purchase it, they will be required to obtain appropriate consent and then proceed to sell the share to other persons.

Methods for allocating a share

There are three main ways to allocate a share of ownership in kind:

1. Establish procedures for using the premises. In this case, we are talking about the fact that one of the rooms is transferred by agreement to one of the owners, but the common areas remain accessible to all residents.
2. Divide property. This applies to cases when the contribution of each owner to real estate is assessed, in proportion to which the jointly acquired property is divided.
3. Sell, donate or inherit your part.

When all the owners of the premises have come to the conclusion about the division, then just signing an agreement will be enough. A standard agreement on the allocation of parts of property must necessarily contain the following information:

1. Agreement number, date and place of signing of the agreement, name of the document.
2. Personal information of each owner.
3. Detailed information about the property with confirmation of registration and ownership.
4. The size of the shares of the parties to the agreement and the method of determining them.
5. All available information about the encumbrances imposed on the property of the parties to the agreement.

The agreement must be signed by each owner affected by the innovations. Once such an agreement is entered into, it is important that government agencies make appropriate changes to the property's records.

In the future, to change the terms of the agreement on determining shares, the mutual consent of all parties to the agreement, everyone who signed it, is required. If it is not possible to reach an agreement peacefully, the issue of determining the shares will have to be resolved through the courts.

Division of property according to law

Shared ownership is a form of property ownership in which the share of each co-owner of a particular property is strictly specified in the title documents.

Do not confuse joint property and common shared property, because any property acquired during marriage is joint property, and common shared property is only that for which the size of the shares is strictly specified in the title documents.

Everything that spouses acquired during a registered marriage is their joint property. According to Art. 39 of the RF IC, in such cases both of them have the right to claim half of the total property.

Dividing joint property is allowed at any stage:

• when the marriage is registered;
• directly during a divorce (even in one statement of claim);
• after the marriage relationship is dissolved.

Property can be divided in two ways:

1. Conclusion of an agreement - the parties, by mutual agreement, determine how to make the division by contacting a notary to draw up the paperwork. Almost any conditions can be specified in the agreement, the main thing is that they do not violate the interests of minor children and third parties.
2. In court - when divorcing spouses are unable to agree peacefully. In this case, it will be possible to resolve the dispute only on the basis of a court decision.

The legislator indicates that any property that appears during marriage is considered common. In this case, the sources of funds with which it was purchased do not matter.

It is necessary to note that the division of shared property during a divorce has its own characteristics. If the shares are determined during the marriage without an official, notarized agreement, then the size of the shares may be revised upon divorce. That is, the determination of shares in a marriage does not mean that this property is no longer subject to division.

Step-by-step instructions for allocating a share in court

A person who is faced with housing disputes for the first time most often has no idea where to start. We have prepared step-by-step instructions for you, which are designed to simplify the procedure for establishing the right to a share of property.

1. The first thing you need to do is decide why you need the allocation. Then you will decide whether you want to allocate a portion in kind or in monetary terms.
2. Next, you need to understand whether it is technically possible to isolate a part in kind, or you will have to be content with money; what kind of allocation options are generally possible in this case; how many shares will there be and what size are they; how much your part of the property will cost on the real estate market. The answers to these questions will be given by an expert assessment.
3. Once you have decided why you need the allocation, you need to try to discuss it with other owners of the premises. If you managed to agree and sign a share agreement, then the main process is completed. And if not, then move on.
4. Drawing up a statement of claim, preparing a package of documents, calculating the amount of state duty and paying it.
5. Submitting a statement of claim and documents to the court. Beginning of the case and court hearings.
6. Receipt of a court decision that has entered into force.
7. Registration of changes in Rosreestr and BTI.

If the court decision contains even the slightest change in the ratio of shares and ownership, then each owner must record this with government agencies.

Statement of claim

Drawing up a statement of claim will not be difficult if you have all the necessary information about the owners and the property. You can submit statements of claim and simply fill them out. For example, the Garant website presents a large library of samples. The application must contain the following information:

• name and address of the court to which the claim is filed;
• personal information of all owners and participants in the case;
• detailed information about the property: address, total area, number of rooms, number of owners;
• title documents for the apartment;
• an indication of pre-trial means of resolving the dispute;
• data on expert assessments;
• list of attached documents;
• date;
• plaintiff's signature with transcript.

A package of documents that must be attached to the statement of claim: the plaintiff’s passport details, an extract from the Unified State Register of Real Estate, confirmation of rights to own real estate, a receipt for payment of the state duty. The number of copies of the claim must correspond to the number of owners.

The consideration of the case in court will take from two to six months. But the legal process itself is not all the time that may be needed for the judicial allocation of a share. It will take time for examination and assessment, for studying the statement of claim, pre-trial hearings, directly for court hearings, as well as for a possible appeal of the court decision.

Is an apartment that is in shared ownership divided during a divorce?

When the title documents for an apartment indicate the specific shares of each owner, then in the event of a divorce it will be divided between husband and wife in accordance with the size indicated in the documents.

There is no division of ownership of the apartment, since the ownership of each spouse is already stated in the ownership documents.

However, cases cannot be excluded when, in addition to the apartment, there is other property, and the total value of this property either does not allow leaving the shares in the ownership of the apartment as is.

Example . During the marriage, A.’s family acquired the following joint property:

• an apartment, the owners of which are husband A., who owns ¾ of the share in the right of common shared ownership, and his wife, who owns 1/4 of the share. The cost of the apartment is 2 million rubles.
• a car worth 1 million rubles.

The total value of property acquired during marriage is 3 million rubles, that is, 1.5 million for each.

In such a situation, ¾ of the shares belonging to the husband can either be left to him, with the rest of the property transferred to the wife, or, if the husband is interested in receiving the car, he will have to give up the entire share in favor of the wife.

In practice, everything turns out to be far from so simple. For example, when the parties, due to constant conflicts and hostility towards each other, cannot resolve a problem related to the procedure for using an apartment after a divorce, or categorically do not want to give up any property, even one of equal value.

Marital property acquired in shared ownership is divided in court only in cases where the husband and wife cannot find a solution that is optimal for both and resolve the issue by concluding an agreement.

How to determine the share size

Becoming the owner of a share is possible only under a division agreement with the help of a court decision, as well as under the terms of shared ownership, which are established at the time of purchase of the property. If your case does not fall under any of the above, then you are one of the owners of common property.

This means that you have some share, but you do not know its size and it is not documented in any way. How, then, can you find out the size of your share of the property?

The owners' shares in common property are equal by default. For example, an apartment measuring 60 sq.m. three owners. So, each owner by default owns ⅓ of the apartment, that is, 20 sq.m. But how to divide the shares so that it is possible to dispose of, for example, a separate room?

Article 252 of the Civil Code of the Russian Federation allows for the determination of a share in kind, but stipulates a number of conditions, the main one of which is the continued suitability of the property for citizens to live in it. For example, it is impossible to physically divide a one-room apartment into two separate living spaces, equip separate entrances, divide or move communications, cut a window in a load-bearing wall for a second room - that is, carry out a full-scale redevelopment. Therefore, it will not be possible to divide such housing.

But if the apartment is large enough, it has several separate rooms, it is technically possible to refurbish it, make separate entrances - separating it is quite possible. The condition for carrying out such a procedure will be the approval of the redevelopment by local authorities and the registration of two separate technical passports in the BTI.

In some cases, a complete division of one living space into two (or more) separate ones is technically impossible, even if it is quite spacious. In such cases, the law allows co-owners to transfer the apartment to communal status. Each co-owner will have personal ownership of the room in which he will live, and common areas (kitchen, bathroom, corridor) will remain common.

The procedure for dividing an apartment in shared ownership

Marital property in shared ownership can occur in two ways:

• concluding a voluntary separation agreement;
• if it is impossible to resolve the issue peacefully - in court.

With the help of an agreement, husband and wife, at their own discretion, determine in what order they will divide the property. If it is necessary to go to court, one of the parties will need to file a statement of claim.

An agreement on the division of property can be implemented in the following forms:

Marriage contract

By concluding a marriage contract, the parties can change the regime of joint ownership to shared ownership (i.e., any property acquired by spouses will be registered in equal shares) or establish other features of the regime of joint ownership of spouses.

If desired, it is also possible to allocate everyone’s shares in kind, thus ending common ownership, or to establish other subtleties of the division of property.

A marriage contract is a very flexible instrument that allows you to prescribe a variety of conditions not only for legal, but even for everyday life and behavior of spouses.

It is not uncommon to have contract terms under which, in the event of infidelity, the cheating spouse loses the right to receive part of the property upon divorce. Such conditions are often challenged in court, but unsuccessfully, unless the agreement was concluded under the influence of deception, pressure or threats.

Voluntary agreement

The division of ownership of an apartment through an agreement is a bilateral transaction. Due to the fact that such legal relations are not regulated by law, the general rules of civil law and the principle of freedom of expression of the parties are applied to the document.

The agreement between husband and wife must reflect the following data:

• date and place of compilation, exact information about participants;
• what is the subject of division of property with a detailed description of each item of divisible property;
• what division path was chosen by the spouses: allocation of a share of property in kind; payment of compensation; offset with other property, etc.
• how the transfer of divisible property to each party to the agreement will take place;
• the procedure for the entry into force of the agreement, as well as other conditions significant for the parties.

The law does not oblige spouses to retain minimum shares for each of them, however, when concluding an agreement on the division of property, the interests of minor children should not be violated in any way.

What can you do with the received share?

After the residential premises are divided between the owners, each of them has the right to dispose of their part at their own discretion. Selling is the most common option. Most co-owners require the allocation of their part precisely in order to subsequently sell it.

Important: before putting his part up for sale, the owner is obliged to offer other former co-owners to buy out their part, since, according to clause 1 of Art. 250 of the Civil Code of the Russian Federation, they have the right of first refusal. And only after the co-owners refuse to buy out the part of the residential premises offered to them, the owner of the share can put the property up for open sale. The refusal of the co-owners to purchase must be documented.

The co-owner of the residential premises, even if part of it is allocated in kind, does not have the right to rent it out if the other co-owners have not given their consent. If, by allowing tenants into his part of the residential premises, the owner does not violate the legal rights of other co-owners, he has the right to file a claim in court for the possibility of transferring his part of the apartment for rent.

The easiest way to dispose of your part of the living space is to donate it. The main difference from sale is that donation implies the gratuitous transfer of property.

It is important to understand that common property does not give complete freedom of action and disposal of your share. Most procedures require the permission and consent of all owners.

Sources:

Division of shared ownership property

Division of jointly owned property and allocation of a share from it

Foreclosure of a share in common property

Templates for a statement of claim

Section options

The law allows several options for dividing property. This could be the allocation of a share, payment of compensation, or determination of the procedure for using the premises. So, what are the features of each option?

Allocation of share in kind

Allocation of a share in an apartment after a divorce (Article 252 of the Civil Code of the Russian Federation) is a legal procedure, as a result of which part of the area is recognized as an independent object, independent of the original one. In essence, this means the termination of the right of common ownership of the apartment and the emergence of several residential premises. Often, the allocation of shares is used when it is possible to build a separate entrance and use the house for two owners. The size of the area is determined by the court in proportion to the share in the property (50/50). The claim will be rejected if:

• there is no legal possibility to allocate shares;
• no technical capability;
• the object will become impossible to use for its intended purpose;
• the building is recognized as unauthorized;
• there is no agreement on the allocation of shares from all interested parties.

Compensation

This option is used by the courts in several cases. Firstly, the apartment is small and it is impossible to divide the square meters. Secondly, one of the spouses wants to buy the apartment as sole ownership, and the second agrees. The third option is that a mortgage has been issued for the apartment, but the bank does not want to include the second spouse in the contract.

As a rule, the courts issue a ruling to appoint an expert examination to assess the market value of the premises. The parties can agree with the conclusion or challenge it . If there are no objections, a decision is made to assign compensation either in a fixed amount or as a percentage of the sale price, and the procedure and terms of payment are also indicated.

Determination of the order of use

If it is impossible to divide an apartment during a divorce, the former spouses can file a lawsuit to determine the procedure for using the residential premises. Formally, this means allocating a separate room (for example, a room) to each party, as well as common areas (toilet, bathroom, kitchen, hallway). In the statement of claim, you can indicate furniture, household appliances and other property, the right to use of which the party wishes to reserve for itself.

If the plaintiff or defendant is allocated a larger area, the court may seek monetary compensation. According to paragraph 37 of the Resolution of the Plenum of the Supreme Court of 07/01/1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation,” courts are required to take into account the peculiarities of the existing procedure for the joint use of property. This means that one of the parties cannot be forced to move to another room or be prohibited from using certain common areas.

How to register ownership of a share

After the shares are allocated, the spouses go to the Rosreestr office to register ownership of the received share. Employees of this body will need to provide:

• applicants' passports;
• certificate, contract or other title documentation for housing;
• documents on the shared division of the premises (court decree, marriage contract, agreement);
• a certificate issued by the housing authority;
• a receipt confirming the fact of payment of the state duty.

The owner of the share has the right:

• sell your share;
• exchange it, donate it;
• rent out your own part of the property.

Before carrying out any legal transaction, it will need to be agreed upon with the second owner of the share. The latter also has the right of first refusal: if he is informed about the decision of the first owner to sell the share, then he has the right to draw up a purchase and sale agreement in the absence of the desire of the second owner to purchase it.

Practice shows that sometimes share owners refuse to receive relevant notifications. In this case, it is recommended to contact a specialist from a notary agency to draw up a notification, which must then be sent via Russian Post by registered mail with acknowledgment of delivery and a list of the contents. The receipt and the second copy of the list of investments prove that the other co-owners have been properly informed.

You will need to send letters to the exact registered address of the recipients.

If any property disputes arise again, share owners turn to the court for help.

Method of division in kind

There are several ways to divide an apartment during a divorce with shared ownership. Both factual and legal options apply. In each case, the method is selected individually.

A literal partition is suitable in situations where the layout allows the property to be divided. Thanks to the physical isolation of certain rooms, each party remains to its own. In the case of such a division of shared property during a divorce, a separate entrance is usually made.

It is possible to divide housing if such actions do not contradict the rules of operation. When this is not possible, the judge may order one spouse to pay the other a share of the cost.

The use of literal division of shared property during divorce is suitable for:

• low-rise apartment buildings;
• large apartments with 3 or more rooms.

Applying the method in high-rise buildings is problematic. Basically, the court decision regarding the division of joint living space turns out to be positive when it comes to private houses. Safe redevelopment is possible in such buildings.

Cases when shared property is not divided

There are cases when shared housing is not divided. After the divorce process, the size of the parts belonging to each party will remain unchanged.

According to the law, housing cannot be divided if:

• It was donated by relatives in a 50/50 ratio (this detail is indicated in the gift agreement).
• Privatized by wife and husband.
• Bought with the mother's money, and also issued to parents and children with equal shares.
• It was received as an inheritance in certain shares.

In this case, the spouses must agree among themselves. It will be necessary to consolidate the oral agreement with an appropriate agreement. If the second spouse refuses division, even the court will not be able to help in this matter.