In most cases, the division of land between owners is carried out for a number of compelling reasons: the need to conduct a transaction for the alienation of property (sell, donate, bequeath) or simply isolate your plot in order to feel like a full owner.
The procedure for distributing rights to a land plot is a costly and labor-intensive process. And if the situation develops in such a way that the second owner opposes dividing the plot, then you will have to spend much more time and effort than with the standard procedure (with mutual consent of the owners). What to do if one of the owners is against the land division procedure? What actions to take and where to go? Let's look at it in this article.
What does division of land between owners mean?
The division of rights to own a land plot is regulated by the norms of land legislation (Article 11.4 of the Land Code of the Russian Federation). First of all, the owners of a single plot need to separate their property. For this purpose, organize measures to survey the site and divide it into two parts.
In the future, based on the results of the boundary plan, put the resulting plots on the cadastral register, and register the rights to them in the manner prescribed by law. The main condition for the smooth division of land is the voluntary consent of the owners to carry out this procedure. If such a situation is impossible, and one of the co-owners is against dividing the plot, then this issue can be resolved through litigation.
Legislative acts
All controversial issues regarding land plots are resolved on the basis of the Land Code of the Russian Federation. As for dividing the plot into shares, this procedure is outlined in Articles 11.2 and 11.4.
But determining the size of these shared plots, here we mean the maximum and minimum parameters, the Town Planning Code is responsible for this. Based on these two legislative acts, land surveying is carried out. This process is entrusted to the so-called cadastral engineer. This is not necessarily an official. Today, many companies offer these services for a fee. The main thing is that these companies have a license to carry out this type of work.
Attention! The shareholders of the plot enter into an agreement with the company, which specifies the timing of land surveying, the price of services provided and the timing of determining the boundaries of new plots.
The work of a cadastral engineer Source ueni.com
A cadastral engineer determines boundaries using special equipment. In this case, the shareholders themselves and the owners of neighboring plots must be present. If one of the shareholders cannot take part in this procedure, then he can be replaced by another person who has a notarized power of attorney from the future owner of the new plot.
The engineer subsequently draws up a drawing, on the basis of which he prepares a report. The latter defines the boundaries of the two areas. The act is signed by shareholders or their representatives.
Requirements for plots when divided between owners
To legally secure the presence of independent parts of a land plot, go through the land surveying procedure (establishing the boundaries of newly created plots).
For these purposes, the land plot must meet certain characteristics:
- the size of the plot does not exceed the maximum permissible values provided by the regulations of a particular region;
- newly created territories should not be less than the minimum sizes of plots defined in the given area;
- the site should not affect the boundaries of urban and rural settlements;
- no restrictions should be imposed on the land to be divided (easements, the presence of circumstances limiting the circulation of land);
- there must be free passage or access to the newly separated areas (each owner must have the opportunity to have unhindered passage or access to their territory).
In addition, the legislation contains a number of prohibitions on the division of land plots:
- for plots intended for farming;
- for territories, the transformation of which will entail a violation of the norms of urban planning legislation.
Minimum and maximum sizes of land plots during division
When determining the boundaries of newly created land plots, take into account the provisions of regional legislation that establish the maximum permissible minimum and maximum area sizes. The newly formed plot should not be less than or exceed the parameters of plots permitted in a particular area.
If we focus on the legislation of the Moscow region (Law of June 17, 2003 No. 63/2003-OZ), then the formed territories should not be less than the following indicators:
- 2 hectares in relation to plots adapted for organizing a farm (peasant) economy;
- 0.06 hectares in relation to land intended for horticulture;
- 0.04 hectares in relation to plots intended for vegetable gardening;
- 0.06 hectares in relation to dacha plots (it is prohibited to create plots for dacha plots of less than 6 acres).
On the territory of the Moscow region, the maximum permissible plot sizes are as follows:
- 40 hectares – in relation to plots for farms (peasants);
- 0.15 – in relation to lands intended for horticultural purposes;
- 0.10 hectares – in relation to plots used for vegetable gardens;
- 0.25 hectares – for land intended for the construction of summer cottages.
It is necessary to determine the permissible size of the formed plot based on consultations with representatives of local government bodies regulating land management issues.
How to divide a plot of land into two parts if the second owner does not agree
If the second co-owner of the land plot does not agree to the division, apply to the court to protect your rights. The issue will also be resolved in court if the location of the second owner of the land could not be established (it is not possible to notify him of the upcoming division). Hearing the case in court will take into account the interests of both parties and provide the most acceptable option for resolving the conflict situation.
You can draw up a statement of claim to protect your rights when dividing a plot of land yourself, using ready-made forms posted on legal portals.
Based on judicial practice, positive decisions are made when, when dividing a plot of land, the interests of both owners are met (the presence of a separate passage to their plot, compliance with acceptable area parameters, etc.). Based on this decision, contact the cadastral organization to carry out work aimed at separating the boundaries of the created territories. Next, the procedure for dividing the site takes place in the standard mode.
Possible difficulties when resolving the issue through court
The need to go to court arises if disagreements arise between the owners or the whereabouts of one of the owners is unknown (which makes it impossible to obtain his consent).
When making a decision, the court is guided by the desire to respect the interests of all land owners. No one's interests should be infringed as a result of the division.
The statement of claim must be drawn up properly.
It is advisable to contact a competent lawyer who will help prepare the document.
In addition to information about the owners and the land, the statement of claim indicates what areas and boundaries the plots will have as a result of the division.
All necessary documents and copies are attached to the statement of claim (copies of passports, cadastral number, duty payment receipt, etc.).
The list of documents for each specific situation may differ.
The statement of claim with the attached documents is submitted by the plaintiff to the court at the place of residence of the second owner.
If there are no obstacles to dividing the land, the court can, without any particular difficulties, decide to allocate to the owners a share of the plot that has a separate driveway or passage.
But it is possible that the court will refuse the plaintiff. For example, if the land is legally indivisible.
In this case, the court can determine the procedure for using the plot, when each owner has his own part of the land at his disposal, but legally the plot is a single whole.
In some cases, the court may decide to sell the plot and distribute the proceeds from the sale in proportion to the shares of the owners.
Statement of claim for division of land between owners
Submit a petition for division of a plot of land at the location of the disputed plot. The judicial authority is determined based on the value of the land plot. If the value of the land is less than 50 thousand rubles, the case will be referred to a magistrate for consideration. In other circumstances (the cost of the land is more than 50 thousand rubles), the district court will consider the case.
In your claim, be sure to include the following information:
- location of the land plot;
- circumstances of the controversial issue (arguments of both sides);
- contact information and passport details of the parties to the dispute;
- the circumstances under which the applicant complied with the mandatory procedure for pre-trial conflict resolution;
- list of documents attached to the statement of claim (name, details and number of pages).
If you have entrusted the preparation and sending of documents to your representative, then his powers must be properly certified (a notarized power of attorney is required).
How to divide a land plot into two parts if the second owner is against it?
Read about the division of land here.
See the agreement on the division of the land plot at the link:
Documents for filing a claim for division of land
To the statement of claim on the issue of asserting the rights to division of a land plot, attach documents confirming your position:
- certificates confirming the registration of a land plot (owned by two owners) with the cadastral service;
- evidence confirming proper notification to the other party of the need to carry out the procedure for dividing the common territory;
- receipt of payment of the state fee for judicial review;
- confirmation of sending the statement of claim to the second party to the dispute (receipt of dispatch via Russian Post).
The statement of claim is drawn up in several copies (according to the number of parties to the disputed issue). Send the original claim to the second owner of the land in advance (simultaneously with filing the application to the court).
Practical features
When carrying out the procedure for dividing a land plot, you need to take into account some features that arise in practice:
- if there is only one owner, then he will be able to carry out the division at any time, but drawing up a cadastral plan will still be required;
- if the plot is received into joint ownership, for example, by inheritance, then shared ownership is first registered, and only then the division is made;
- the owner can apply for division at any time, there are no restrictions on this;
- If there is a technical possibility and the rules on the minimum size of the plot allow, the land can be divided into any number of parts.
The procedure seems complicated, but quite feasible. The main thing is to check whether the division is actually possible; the rest is, as they say: “a matter of technique.”
Procedure for dividing a land plot
The algorithm for dividing a land plot, regardless of the basis (peacefully or judicially), is as follows:
- enter into an agreement with a company providing land management services on the basis of an appropriate license;
- submit to the geodetic company the title, technical and other documentation for the land (certificate of ownership, document of inheritance, extracts from the Unified State Register, cadastral documents, certificate of cadastral value of the land);
- carry out the isolation of parts of the land plot in kind (a specialist from a geodetic organization carries out the procedure for delimiting the land plot in the presence of interested parties);
- sign the conclusion of the geodetic organization on fixing the boundaries of the newly created land plots;
- receive a boundary plan of the territory;
- submit land documents (title and boundary documents) to the authorized state body to register the site for cadastral registration;
- register ownership of the newly created land plot (as a rule, cadastral registration and registration of ownership occur in parallel on the basis of a corresponding application).
The period for registration actions, according to legal requirements, should not exceed 20 days.
After legalizing the rights to separate plots, the owners have the right to install fences that restrict access to their plot.
What to do if the land plot is indivisible
There are situations when a plot cannot be divided due to a prohibition contained in the law. Thus, even if you go to court, you will not be able to obtain permission to divide the land into two separate territories. In this case, the courts decide to establish rules for using the site that are as convenient as possible for both parties.
If this option is not considered by the owners, and the isolation of their part of the land was necessary due to the possibility of completing a transaction for its alienation, then the court issues a ruling to authorize the sale of the plot as a whole. After the sale of the plot, the owners will be able to divide the money received in proportion to their shares.
Owners of an indivisible plot can come to this decision on their own, having learned that it is not possible to carry out the procedure for separating their territories due to legal requirements. At the same time, saving effort, time and money spent on litigation.
Purposes of land division
The main goal of land surveying by the state is to increase the number of land users and denser development, which contributes to a more rational use of land. Therefore, applications regarding land surveying are readily considered by government officials. As a result of the division, two full-fledged and independent land plots are obtained, which can be more efficiently managed than one.
The main goal on the part of private owners is, in addition to the property relations described above, this may be preparation for the sale of part of the territory belonging to them. Usually registration is made in the name of relatives. Yes, of course, the owner changes, and there are risks, but finding a buyer for a ready-made divided plot is easier than dealing with paperwork when you are ready to buy it.
Division of land after divorce, if one of the spouses does not agree
If the owners of a common plot are former spouses, then when dividing jointly acquired property, the land is also subject to division. The basic rule in this case is that the newly formed plots comply with the sizes established by law (compliance with the minimum and maximum values). This procedure is carried out during the standard peaceful settlement of divorce issues.
If one of the spouses opposes the division of the land plot, then this situation must be resolved in court.
File a claim for forced segregation of land plots in common ownership to the judicial authorities. As a rule, there are no problems in proving the need for division of property; confirmation of the fact of divorce is sufficient. After receiving a positive court decision, enter into an agreement with a geodetic organization to conduct land surveying, register the new plot of land in the cadastral register and register ownership with the Rosreestr service.
Such a situation is possible only if there are no prohibitions on dividing the plot established by current legislation. If the plot is recognized as indivisible, then the only solution in this matter is to sell the land and divide the funds received between the former spouses.
Let's sum it up
The legislator established that the owner has the right to divide the land owned by him. A division of jointly owned land can also be implemented. As a result, each co-owner will receive a separate share. The restrictions relate only to the minimum size and the actual possibility of such division. The procedure is carried out in a strictly established order, where each step is important. The division is carried out voluntarily or by court decision.
Read: How to remove obstacles to the use of land
How to divide a plot with a house between two owners if one does not agree
If the second owner does not agree to divide the plot on which the house is located, contact the judicial authorities to protect your interests.
Prepare a statement of claim containing the following information:
- Full name and contact information of co-owners;
- characteristics of the land plot (location, area, intended purpose, cadastral registration number);
- sizes of plots formed as a result of division;
- compliance with pre-trial dispute resolution procedures;
- reasons why the co-owner refuses to separate the territories.
You can file a statement of claim yourself, using ready-made samples available on the Internet, or seek help from lawyers specializing in such cases.
To support your arguments, please attach the following documents to your application:
- a document confirming the registration of the site with the cadastral authority;
- a paid receipt for payment of the state fee for consideration of the case;
- documents confirming ownership of the disputed area.
A positive decision on the division of a plot in the presence of a residential building is made by the court if, as a result of separating parts of the common territory, it is possible for each owner to have unhindered access to his half of the house.
The role of the expert in court proceedings
During a trial on the forced division of a land plot, the judge can complete the process only if the case file contains the opinion of independent experts on the results of the land management examination. The powers of the expert organization include:
- determination of the boundaries of the allocated land plot;
- its legal status;
- building control lines, etc.
After studying the characteristics of the disputed real estate, experts will offer several of the best options regarding its division. At the same time, experts act strictly with the task assigned to them by the court and have the right to go beyond its limits only with a reasoned justification about the impossibility of giving an opinion without an expanded interpretation of the problem.
In addition, this examination also determines the procedure for dividing buildings that are located on the disputed site, however, from a technical point of view, this is not always possible. Thus, in order to recognize part of a home as suitable for living, certain conditions must be met, such as isolation, the presence of a separate entrance, communications and other amenities. As a rule, experts, even at the initial stage of building houses, offer project options that determine the possibility of its future division, but this happens extremely rarely. Thus, when dividing a land plot, the buildings located on it are in most cases indivisible.
After completing the expert assessment, specialists offer several methods for dividing the disputed property; the owners of such property will only have to choose the most suitable one. If none of the options meets the expectations of the parties, the court will make its own choice, however, such a decision can be appealed.
How to register land plots after partition
After separating the plots, contact the Rosreestr service about the need to register the land in the cadastral register and register ownership of it.
Previous documents for shared ownership are cancelled.
For registration actions you will need the following documents:
- identification document;
- an official request to the Rosreestr service to carry out registration actions;
- documents confirming ownership of a share in the common plot of land;
- cadastral documentation;
- receipt of payment of state duty;
- certificate of the new address of the residential building (when dividing a land plot, the residential building is initially divided).
The process of registering a plot of land takes no more than one month. Upon completion of the procedure, the applicant receives an extract from the register of rights to real estate, which confirms his ownership of the newly formed plot.
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List of documents for registration of property rights
For state registration of formed plots, it is necessary to provide the relevant documents to the authorized bodies:
- A peace agreement certified by a notary (if there is a voluntary agreement between the owners).
- Court ruling (when resolving the issue through the court).
- Passports.
- Title documents for land.
- Administration resolution on assignment of addresses.
- Cadastral passport.
- Receipt of payment of the state registration fee.
- Power of attorney (if the interests of the owner are represented by a proxy).
