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.
Legal definition of shared ownership
Shared ownership usually means movable or immovable property owned by several persons at once. This could be an apartment, a car, a house, etc. Each owner of common property can manage and use their share.
In most cases the shares are equal. According to the current legislation of the Russian Federation, if property generates income, then it belongs not to one owner, but to everyone.
How to divide property into shares?
As mentioned above, a share in a real estate property can be given, sold, bequeathed or used as collateral only after the status of joint ownership has been changed - it has been transferred to shared ownership and this fact has been registered in Rosreestr.
Through the court
If the division of an apartment or house is carried out in court, then after a court decision is made to determine the shares, the status of the property changes automatically - it becomes a shared property, but these changes must also be registered with Rosreestr.
Settlement agreement (at a notary)
You can determine the shares without the participation of the court by concluding an agreement and having it certified by a notary.
What size of shares can be
Before you start dividing an apartment into shares, you need to find out what they are.
There are two types of housing shares:
- "Perfect." This concept usually means part of the ownership of an apartment, which is officially allocated in a certain amount.
- Selected in kind.
The allocation of a share in kind is necessary in order to determine which rooms in the apartment belong to whom.
As for the number of parts into which the apartment can be divided, it is not limited.
How many parts can be identified?
The technical part of resolving the issue of allocating a share in an apartment lies in identifying the possibility of the emergence of new separate cadastral objects from one existing one. In other words, at the legal level, this is not just the disposal of personal real estate, but also changes at the state level, since several premises are created from one dwelling, even if outwardly little changes.
And yet, the technical possibility of allocating shares in practical implementation is the procedure for equipping separate entrances and sanitary facilities for each part of the divided apartment. This assumes that the property initially has more than one hundred square meters. However, in the case when the apartment cannot be divided so fully, it is quite possible to register the required number of shares without isolating them from each other by concluding an agreement on the use of the premises with the owner of part of the housing.
When talking about how many parts residential apartments are divided into, we should refer to the current Russian legislation. There are absolutely no restrictions in this matter. However, in reality everything will depend on the technical expertise carried out. That is, the owner will tell the specialist how many parts he wants to divide his home into, and in the end he will receive an answer as to whether this can be done in practice.
What is the difficulty of allocating shares in an apartment?
When dividing an apartment into shares, many difficulties can arise. They are divided into technical and legal.
If we talk about technical difficulties, then housing to be divided must meet the following requirements:
- Availability of a separate entrance. If the housing is located in a multi-story building, then the co-owners cut an entrance in the main wall. Such work cannot always be carried out, as permission will be required.
- The area of the apartment is not lower than the minimum acceptable value. It is also necessary to have a kitchen and a bathroom.
- The load-bearing walls of a residential building should not be weakened as a result of redevelopment of the apartment.
If we talk about legal difficulties, then if there are many owners, dividing the apartment into shares is impossible.
If we are talking about a one-room apartment, then it will not be possible to allocate a share.
Determination of shares and their division in practice
Disagreements on how to divide jointly acquired property – according to the law or “fairness” – are not uncommon.
For example, one of the spouses may believe that due to the difference in income (he worked and his wife did not), his contribution to the purchase of an apartment or house is more significant, and, therefore, the share should be larger.
It should be noted that from a legal point of view this is nothing more than an illusion. If there is no marriage contract or agreement on the division of real estate, then in accordance with Art. 39 of the RF IC, jointly acquired property is divided into equal shares between spouses.
One important point should be clarified here - usually an apartment or house is an integral part of jointly acquired property. And the share of one of the spouses may turn out to be larger in the property or even go to him entirely - despite the fact that the law’s requirement for equal shares in the division of property as a whole will be implemented.
Often, before going to court, it is necessary to determine how to most profitably divide property, and whether it is, in principle, worth seeking to obtain a share in an apartment or house.
This issue is extremely delicate and when contacting us, it is always resolved individually. It is required not only to consider the property to be divided, but also to take into account the life circumstances in which our principal finds himself and all the conditions under which the property was acquired.
Example 1: receiving ¼ of the apartment and monetary compensation for the rest of the share, if there are minor children.
Let's take, for example, a fairly typical situation when a significant part of the disputed property is an apartment consisting of two rooms.
With a 99.9% probability, a court without the participation of a representative will divide it in equal shares. But under similar conditions of the problem—dividing a two-room apartment between spouses with children—the solution may be different.
One of our clients, acting as a plaintiff, initially did not have any doubts regarding the division of the apartment in equal shares. But upon closer examination of her situation, a tactically more advantageous partition option for her was found.
It was decided to insist on receiving ¼ of the apartment and monetary compensation for the rest of the share. In the lawsuit, we proposed to the defendant a draft settlement agreement on the division of real estate in this way. As a result of negotiations, the parties signed this settlement agreement.
Judge for yourself - our client did not have another place of residence, and her ex-husband did not plan to live in the living space alienated to him, but did not want to lose ownership of the apartment. Did assigning a ½ share in the property to our client entail receiving any benefits?
Of course no. She retained the right to use the living space both if she received ½ and ¼. Accordingly, the former spouse also received the right to visit the apartment and dispose of it in other ways, regardless of the size of the share going to him.
Could the share received by the client be regarded as a potentially promising object of sale? Unlikely.
Let's not forget that a minor child was already registered in the apartment, which made the practical sale of the share virtually impossible. In addition, the ex-husband could theoretically register his future children for the share due to him.
Now let's take a look at what set of benefits the client received with the section option we proposed:
- monetary compensation expressed in a decent amount;
- facilitating the potential sale of your share. When purchasing another home, the requirements of the guardianship authorities regarding decent living conditions for minors when assigned ¼ ownership rather than ½ ownership in the previous apartment are much easier to fulfill.
Example 2: Receiving monetary compensation for a share in an apartment
Another example. The disputed object was also a two-room apartment. But the client had the opportunity to live with her parents. Receiving a share in the apartment brought her practically no benefits.
It was tactically advantageous to receive monetary compensation for the half of the apartment due to her. The defendant, in turn, agreed to such conditions, since he also did not want to share the apartment with his ex-wife. We prepared a draft agreement on the division of property in a manner that was subsequently signed by the parties and notarized.
The money won served as an initial contribution to the purchase of new housing. It would be incredibly difficult for the client to implement such a purchase while receiving a share.
As you can see, the role of a truly competent lawyer is not limited to simply accompanying his client in court.
His task is to help determine the most profitable solution option, meticulously and carefully weighing all the pros and cons, and then, using his knowledge of the intricacies of the law, to defend the version of the division in which his client is interested.
Procedure for dividing an apartment by agreement
Concluding an agreement between the owners is the easiest way to divide housing into shares. In most cases, this option is used by spouses upon divorce. In the document, the former spouses determine the conditions for the division of property.
The agreement concluded between the owners specifies the following information:
- Date and place of document preparation.
- Information about the parties (full name, passport details).
- The object of the divisible property is described.
- Rights and obligations of the parties.
- Responsibility for violation of clauses of the agreement.
- How it was decided to divide the real estate.
- The procedure for the entry into force of the agreement.
The agreement must be certified by a notary. Otherwise, it will not have legal force. After this, the document is sent to Rosreestr, which allows all changes to be registered.
The agreement must clearly state what share of the property is due to each owner.
Transfer of ownership or use rights
After the apartment is divided into separate shares, each of the owners has the right to carry out any transaction with their property.
The relationship between such owners differs from co-ownership in that there is no need to coordinate and obtain permission to alienate real estate from each other. Each share is a separate object, with its own personal account and documents. This is what makes it possible to sell such property using a simplified system, but at the same time, the right of redemption will always be primarily with the remaining shareholders. That is, having decided to sell your part, you first need to notify the other tenants in writing and either receive their written, notarized refusals, or after a month you need to formalize the deal independently of anyone. All alienation transactions are not subject to mandatory state registration, since the new owner will still register ownership rights. However, for the safety of the parties and to ensure legal purity, it makes sense to have contracts certified by a notary office. This will save both the seller and the buyer from possible claims and fraud.
Division through court
If one of the owners does not agree to share the apartment or is not satisfied with the allocated share, then the issue will have to be resolved in court. As for jurisdiction, the district court at the location of the housing is authorized to consider such claims.
The statement of claim is drawn up in free form, but the document must necessarily contain the following information:
- Name and address of the court to which the petition is filed.
- Information about the participants in the process (full name, place of residence, telephone number).
- Information about the residential premises that are subject to division.
- The plaintiff must indicate the reasons why he is required to allocate a share in the apartment.
- At the end, the date of drawing up the application and the signature of the applicant are indicated.
The following package of documents must be attached to the statement of claim:
- Papers for a real estate object confirming the existence of ownership rights.
- Technical passport of the real estate.
- A receipt confirming the fact of payment of the state duty.
Documents upon registration
All procedures that are in any way related to real estate are strictly regulated by Russian legislation, including the allocation of a share of a privatized apartment. All the nuances that may be associated with this process are reflected in laws and codes. By nuances we mean the presence of any encumbrances, for example, an outstanding mortgage, seizure of real estate, etc.
Despite the fact that the sole owner of an apartment does not need to undergo a number of procedures that co-owners must undergo (sending notifications, drawing up agreements, going to lawyers and a notary, etc.), you should not count on too easy a fate. First of all, this concerns the preparation of documents that will be needed during registration.
List of required papers:
- Certificate certifying ownership of the apartment;
- Documents on the basis of which ownership rights were obtained (sale and purchase agreement, exchange, rent, privatization, participation in shared construction, deed of gift, will, certificate of inheritance, etc.);
- An extract from the house register about persons registered in the apartment;
- Written application for division of real estate;
- Receipt for payment of state duty;
- Other as necessary (to be specified in each individual situation).
Division of an apartment with one owner
According to the current legislation of the Russian Federation, the sole owner of an apartment can allocate separate shares in it. However, this will require compliance with established requirements. In most cases, the need to allocate a certain part of the living space arises in the event of its sale.
How to divide an apartment into shares if it has one owner? To do this, it is necessary to carry out technical expertise. It is carried out by a responsible specialist with a license. When the examination is completed, the owner will receive a documentary conclusion. This will allow you to find out whether it is possible to divide the housing into shares.
If the residential premises meet all the requirements, then the division procedure is carried out according to the standard scheme.
Privatized real estate
First of all, before dividing residential or non-residential real estate into shares, if one owner has rights to it, it is necessary to take into account that after the division the apartment will cease to exist as a single real estate object. Instead, two or more new ones will appear, depending on how many parts are allocated. But here, too, not everything is so simple, since in order to create a new real estate object, it must have a number of requirements and characteristics. Of course, in a situation with an apartment this is not always possible due to the installation of two separate entrances.
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In addition, after division, the original owner of the apartment will lose ownership of the allocated part of this property.
It is advisable to divide an apartment when the living space is large enough or the property was previously combined. For small apartments, especially one-room ones, you can often simply face the impossibility of achieving your plans.
The advantage for the sole owner is the fact that he does not need to reach an agreement with the co-owners or go to court. It is enough to conduct an examination and take care of paperwork. This, in turn, allows you to save not only financial resources, but also time.
Civil registry office or court
The fastest way to resolve the issue of divorce is by contacting the registry office, however,
There are several basic conditions for this:
- the couple should not have a child or children together, at least one of whom would not be 18 years old at the time of applying to the registry office;
- the spouses express a mutual decision to dissolve their marriage;
- husband and wife decided among themselves the issue of division of property during divorce and the share of each of them.
In cases where spouses have minor children or one of them does not agree to divorce, they will have to file a claim for divorce in court. Very often, judges, simultaneously with hearing a divorce case, also consider issues of division of property acquired during marriage, if the couple was unable to reach a compromise on this issue.
