How to divide an apartment that is in shared ownership?

The division of property is generally a common procedure, although sometimes associated with conflicts between co-owners and other persons. Most often, a lot of problems are caused by the division of real estate, be it a plot of land or a residential building. But an even more difficult object to divide is an apartment, which the owners decided to divide into two independent and separate real estate units. Is it possible to divide one apartment into two apartments and what difficulties await property owners?

Is it possible to divide the apartment into two apartments?

According to practice, dividing one apartment into two equal ones is a rarer occurrence than combining two premises into one. At the same time, there are still situations that require the separation of one large apartment, for example, when such real estate is inherited by several relatives or during the divorce process of a married couple.

Most often, the following circumstances become the reasons for the division of housing located in an apartment building:

1. Due to the divorce of husband and wife, in order to divide one apartment into 2 parts, with the aim of acquiring separate living quarters for each of the spouses.
2. In the case of inheritance of real estate, in which relatives do not consider partition or sale of the apartment with subsequent division of the proceeds for it as an option, and also do not want to dispose of the said property in a joint manner.
3. When a child reaches adulthood and enters into a marriage relationship, which requires separate housing, which can be obtained by allocating a share in kind from a common family apartment.
4. The residential property was purchased for commercial purposes, in view of the fact that the purchase of two separate apartments may require significantly more material investments than one larger one, but with an identical area.

All these reasons are more of an everyday rather than legal nature and are by no means exhaustive. Other situations may arise in life when the division of an apartment is required.

Is it possible to share an apartment if it is large?

Expert opinion

Noskov Georgy

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

It is much more difficult to actually divide a two-level apartment or a large one, for example, consisting of three or four rooms. Current legislation determines that each newly created residential premises must have separate bathrooms (bath/shower and toilet), a room equipped for a kitchen, as well as a separate exit to the landing.

At the same time, the rights of other residents of the apartment building must not be violated and their safety and comfort cannot be jeopardized.

Important! If, in the case of the division of housing that previously consisted of two apartments, the bathroom could simply be returned to the previously allocated place, then when dividing an entire apartment, the planned places for installing a bathroom and toilet must be transferred from the status of residential premises to non-residential. This procedure seems quite difficult to implement, and in most cases, completely impossible.

Similar problems can arise when creating two kitchens. Since the apartment already has space for one, it is necessary to draw up an appropriate project for the second, which also has its own nuances:

1. Current legislation prohibits the arrangement of a kitchen space if there is a living room under its intended location, due to the fact that such actions can significantly worsen the living conditions of neighbors living on the floor below.
2. It is also prohibited to install a gas stove in a kitchen niche, which is located in a one-room apartment, due to the fact that a room with a gas stove in it cannot, in principle, have a residential purpose.

Important! Only in view of compliance with all the above conditions is it possible to divide the apartment into two separate ones, which is practically impossible in old-plan houses.

In addition, difficulties may arise when creating a separate entrance for the second apartment. This is due to the fact that to carry out these actions it will be necessary to break through the load-bearing wall. If the door opens onto the landing, you must obtain permission from all owners of other apartments.

There is another option for creating a separate exit - building a vestibule inside the original housing. However, such actions can lead to the loss of part of the living space and, as a result, a forced reduction in the size of the remaining rooms.

If the apartment is formed of 2 apartments

The division of such residential real estate, as a rule, does not cause any special complications, however, this is not a reason to believe that to carry out the division of this apartment, it is enough just to erect a partition in the designated area.

To implement these actions, you will need to make some efforts and resolve many issues.

This is just a short list of organizational and technical measures related to the division of one apartment into two objects. In addition, the list above is relevant for situations when both owners are in contact with each other and are ready for division. Otherwise, even if it is technically possible to partition in kind, the division will have to be done through the courts.

When you can't share an apartment

Along with the above requirements for the redevelopment of residential premises, there are also a number of conditions that make it impossible to divide an apartment in a multi-storey building, namely:

1. Reconstruction/redevelopment of an apartment can lead to deterioration in strength, as well as destruction of the load-bearing structures of the building, disruption of the safety or appearance of the facades of a multi-story building, malfunctions of engineering systems or similar equipment, and deterioration in the operation of fire-fighting mechanisms.
2. These actions entail a violation of the protected rights and legitimate interests of residents of neighboring apartments.
3. Redevelopment or re-equipment of housing is prohibited if, as a result of such work, the premises will not have a source of natural lighting or heating devices.
4. Ventilation ducts related to the kitchen, bathroom and toilet will be combined with ducts that have access to the living areas.
5. In case of violation of other norms and rules provided for by law.

These conditions are mainly relevant for 1- and 2-room apartments, which, due to their small area and difficulties with communications, are unsuitable for division in kind. The simplest way to divide property is to sell the property and then divide the funds.

Also, the land plot under an apartment building is not subject to division.

If the apartment building is low-rise

Often in the vast expanses of both the capital and the country as a whole, you can find low-rise construction projects of 1-2 floors, containing 4-8 apartments. In fact, these are almost private houses, where each apartment can have a separate exit or a common vestibule-entrance for 2-4 apartments.

In these cases, the chances of division are greater, since redevelopment and arrangement of communications and a separate exit are still simpler than in a 9 or 16-story building.

All the requirements listed above also apply to the division of an apartment in a low-rise residential building.

Example . Ivanov N. and A. decided to share an apartment in an apartment building and low-rise residential building voluntarily. In a house with 8 apartments and 2 floors, all exits from the living quarters opened into a common vestibule - 4 apartments on the first floor and 4 apartments on the second floor.

Based on the results of the construction and technical examination, it was established that it is possible to physically divide the living space, however, there are a number of problems with arranging a separate exit - due to the specifics of the layout, there is nowhere to put the door in the vestibule.

As a result, dividing the apartment in kind was considered impossible for the Ivanovs.

Marriage contract

When concluding such an agreement, the parties have the opportunity to make joint property shared. Any property will be registered in certain shares. A marriage contract is a fairly flexible means that allows you to agree on any conditions. This may concern not only legal issues, but also the everyday life of the couple.

Quite often, a prenuptial agreement contains a condition that states that the cheating spouse loses the right to common shared property upon divorce. Some are trying to further challenge the previously drawn up document. However, it is quite rare to achieve anything. The court may cooperate if there is evidence that the agreement was drawn up using pressure or deception.

How to divide an apartment into two hotel apartments

As in most cases of division of real estate, the division of housing in an apartment building first of all requires the expression of the will of all its owners, which is expressed in the conclusion of an appropriate agreement.

If a compromise cannot be found on this issue, then permission to carry out these actions can only be obtained in court.

ATTENTION: The following describes ways to divide apartments, which technically can be divided into two independent objects.

Children's share

When purchasing apartments, maternity capital is often used, which seriously complicates the division of property during a divorce. But what is the “weight” of this capital? For example, in the cost of housing he could have a very small percentage: 5 or 10. But does this mean that the remaining 90% can be divided between the spouses and the one who leaves the family without children can claim almost half of the apartment? Judges have considered many such claims, but the Supreme Court recently put an end to it.

The apartment, paid for including with maternity capital, must be registered as common shared ownership. The spouses determine the shares of each family member independently; the general practice is to equally divide the shares among everyone. It turns out that if the children were allocated specific shares, then upon divorce, each spouse will receive the strictly due share. But the one with whom the children remain receives their shares too. For example, in a family with two children, the wife will be left with two-thirds of the apartment, and the husband with only a quarter.

If they did not have time to allocate shares, the situation changes not in favor of the wives. The part of the apartment, which is paid for from common savings, is divided equally between the spouses. Children, since they did not participate in the payment, do not receive anything. But all family members - even children - have the right to maternity capital. It is divided equally. As a result, the child can only claim that part of the apartment that is proportional to his share in the maternity capital. With this division, the husband will actually receive almost half of the apartment.

Agreement on dividing an apartment into two

An agreement to divide one apartment into two is concluded between all owners of such real estate. It is not subject to notarization, but the parties can have it certified by a notary if they wish, insuring themselves against possible surprises.

Content

The voluntary separation agreement must contain the following information:

• place of document preparation;
• Full names of all owners;
• information about the subject of the section such as address, total area, etc.;
• inventory information, technical data;
• the value of the property according to the assessment;
• the procedure for dividing real shares going to each owner;
• information that the object of the agreement has not been sold, not donated, and is not pledged or under arrest;
• agreement on the procedure for the parties to bear certain expenses associated with the division of real estate;
• additional items required by law;
• date of document preparation;
• signatures of all co-owners.

The agreement is drawn up in three copies without notarization and in four copies with notarization:

• 1 copy will remain with the notary;
• 1st - for each owner;
• another one will go to Rosreestr for registration of rights.

An approximate example of an agreement in this case can be seen using the example of a residential building allocated in kind.

How is it

As already noted, in order to draw up an agreement on the actual division of an apartment, property owners need to contact a notary office and provide the following package of documents:

• technical documentation for the divided apartment;
• title documents for the division object;
• certificate of state registration of joint ownership of residential premises;
• personal identification documents of all owners;
• certificate of divorce or marriage, if the owners of the property are husband and wife.
• other documents necessary to confirm the documents reflected in the agreement.

A similar package of documents will be required to conclude an agreement without a notary, when the owners immediately take the document drawn up to Rosreestr or the MFC to submit for registration of rights to newly formed real estate.

Expenses

Concluding an agreement on the real division of an apartment may cause some costs associated with the implementation of this procedure, for example:

• payment for work to establish the estimated value of the divisible property (from 2,000 to 5,000 rubles);
• carrying out construction and technical examination (from 10,000 rubles);
• state duty paid upon registration of a document in the amount of 0.5% of the price of the disputed apartment.
• expenses associated with registering property rights to newly created apartments with Rosreestr (2,000 rubles as of 2021).

All costs, excluding fees, are approximate. For more details, check with the relevant institutions in your region, prices for which can vary significantly even within one locality.

How to use

Sometimes the options described above are not suitable for dividing shared property after a divorce. Then the ex-wife and husband retain the right to the property in the previously agreed upon shares. The court helps establish the procedure for using common property. It is also possible to draw up an agreement.

The order of use depends on the characteristics of the room itself. Therefore, conditions can be very different. Sometimes even the time of use of some rooms is indicated. This method is rarely used, as it often turns out to be the cause of conflicts between former spouses in the future. Those who cannot agree on the allocation of shares after a divorce will obviously have a difficult time coexisting under one roof.

Judicial section

If the owners of the disputed apartment cannot find common ground on the issue of dividing the apartment, then the dispute must be resolved by filing an appropriate statement of claim with the judicial authorities.

A statement of claim for the division of an apartment is submitted exclusively to the district court due to the specifics of the dispute and the cost of the claim. Issues relating to real estate due to its value do not fall within the competence of magistrates.

Procedure

To carry out the division of residential real estate in court, the following algorithm of actions must be followed:

1. Conducting an assessment of divisible real estate to establish its exact value and calculate the price of state duty.
2. Determining the order of division of the apartment. For these purposes, specialists may be involved who will conduct a construction and technical examination in order to establish the possibility of dividing housing.
3. Drawing up a statement of claim and collecting all documents confirming the applicant’s position, as well as further submitting the specified package of documents to the court.
4. Taking part in a lawsuit and waiting for the claim to be considered on its merits.
5. Obtaining a court decision and implementing its requirements.

The most difficult thing will begin after the court’s decision - the owner’s obligation to do the redevelopment, especially if the court has assigned any obligations to both homeowners.

Procedure

After the statement of claim has been submitted to proceedings, the judge schedules a hearing to consider the requirements of the specified document. When resolving a dispute on the merits, the court is guided by the arguments of the parties to the case, the evidence they provide, as well as the materials of the construction and technical examination, which can be either attached to the additions to the statement of claim or appointed at the initiative of the court.

After studying all the circumstances necessary for a full and comprehensive consideration of the case, the court makes a decision on the possibility of dividing one apartment into two separate ones.

However, according to practice, dividing housing in a multi-storey building into several parts is practically impossible due to the large number of technical requirements provided for this procedure.

As a rule, the most likely possibility for separating two apartments from the original one are cases when:

1. The disputed housing previously consisted of two separate apartments.
2. The housing has a large area and duplicate units (bathroom, kitchen).
3. The building is one-story, which allows, without any problems, to implement one of the most essential conditions for such a section - to create separate exits for each newly created room.

In other cases, the court may come to the conclusion about establishing a procedure for the use of the specified real estate, payment of monetary compensation or its sale, with the subsequent distribution of the proceeds between the owners.

Duty cost

Due to the property nature of this category of claims, the specified document is subject to payment of state duty. The agreed tax is calculated from the total amount of claims, in accordance with the provisions of Art. 333.19 Tax Code of the Russian Federation.

In addition, in some cases, the parties will need to pay for construction and technical expertise, as well as the services of representatives in court.

The procedure for calculating the duty is set out in the table below.

Statement

The contents of the application and the requirements for the attached documents are specified in Art. 131-132 Code of Civil Procedure of the Russian Federation. When drawing up a claim, the applicant should indicate in the document the following information:

• name and address of the court;
• data of the parties to the case (full name, addresses, contacts);
• price of the statement of claim;
• a descriptive part that contains information regarding the procedure for acquiring and using an apartment, as well as the shares belonging to the owners;
• an indication of the reasons for contacting the judicial authorities, as well as information regarding the voluntary resolution of the controversial issue;
• reflection in the reasoning part of the claim of the preferred option for dividing the disputed housing, explaining one’s position by legal norms;
• list of additional materials;
• signature and date.

Expert opinion

Noskov Georgy

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

An example sample is posted below. It illustrates only one typical situation related to the division of a privatized apartment. In life, every situation is individual and it is better to entrust the preparation of such a complex legal document to a competent lawyer.

Documentation

In addition to the statement of claim, the following documents must be submitted to the court:

• expert report on the cost of the disputed apartment;
• conclusion of construction and technical expertise (if available);
• technical documentation for the apartment;
• confirmation of payment of state duty;
• copies of the claim for all parties to the case;
• other documents relevant for a comprehensive consideration of the case.

Most documents will be provided in copies, but keep the originals ready during the trial as they may be required at the request of the judge.

Unequal marriage

It is believed that the acquired apartment is divided equally between the spouses. However, in practice, there is often an excess of meters towards one of the spouses.

Children, for example, can increase the share of an apartment. If, after the sale, a share of the proceeds is not enough to purchase a new home, then the court may allocate a larger share in the apartment in favor of one of the spouses, who will raise the minors. However, the mere fact that spouses have minor children is not a basis for deviating from the principle of equality of shares when dividing common joint property, explains Anton Martkochakov, partner at Enforce Law Company.

You can also achieve an unequal division of the apartment if one of the spouses spent the entire salary on themselves, while the other supported the family, or if, when purchasing, one of the spouses invested money that they had before marriage. For example, funds from a bank deposit, from the sale of a bachelor’s apartment or car.

Order an examination

In private, it is difficult to determine the potential for partition; to do this, you should have knowledge and information about:

• Technical characteristics of the house itself (where are the load-bearing walls, common area, etc.).
• The layout of the neighbors (not all neighbors allow an inspection, especially if unauthorized redevelopment has been done).
• Possibility of additional gasification and electrification of newly created apartments, provision of water and sewerage.
• Subtleties and nuances of fire and engineering safety.

Therefore, it is recommended that an examination of the division of the apartment be carried out by those who are professionals in this field. There are campaigns (participants of self-regulatory organizations) that engage in such analysis on an ongoing basis and have experience working with all the necessary information.

Based on the results of the examination, an expert opinion will be drawn up on the technical feasibility of separating individual apartments from one. Based on it, you can order a redevelopment project, legalize it and begin to implement the section in practice.

Important: Unauthorized redevelopment is a violation of the Housing Code of the Russian Federation (Article 29). The court may force the premises to be returned to their original appearance or the property to be sold at auction. Yes, and you will have to pay a fine (2 - 2.5 thousand rubles) according to Art. 7.21 Code of Administrative Offenses of the Russian Federation.