The Supreme Court allowed to change the size of the owners' shares

The Supreme Court allowed to change the size of the owners' shares

The land plot with an area of ​​6 acres and the house located on it are in common shared ownership between Olga Sakharkova*, Marina Volkovskaya* and Nikolai Kirev*. Kirev asked through the court to allocate his share in the property rights. And although Kirev is owed a little less than two acres of land, he asked to give him 2.65 acres - since such an allocation corresponds to the established procedure for using the plot and house. Sakharkova and Volkovskaya objected: they wanted to keep the 2 acres of land on which the house is located in common shared ownership.

The Kaluga District Court of the Kaluga Region satisfied Kirev's claim. The court rejected the defendants’ option, since the allocation of a share in kind should terminate the share of the allocated co-owner in the entire land plot, and they proposed to partially retain it. At the same time, the court decided to allocate a 22 sq. m path for the common use of all three co-owners. m.

CASE No. 85-КГ18-14

PLAINTIFF: Nikolay Kirev*

DEFENDANTS: Olga Sakharkova*, Marina Volkovskaya*

ESSENCE OF THE DISPUTE: About the allocation of a share in the ownership of a land plot

DECISION: The appeal ruling is canceled and the case is sent for a new trial to the appellate court

The Kaluga Regional Court overturned the decision and adopted a new one, which rejected the claims. He explained: the version of division proposed by the plaintiff does not take into account the size of the parties' shares in property rights, which is contrary to the law.

The Supreme Court recalled: Art. 252 of the Civil Code allows for the allocation of a land plot whose area exceeds the size of the share allocated. If the appeal disagreed with the decision of the first instance court, it was necessary to choose other division options. By completely rejecting the claim, the appeal court did not resolve the dispute, and therefore did not fulfill the tasks of civil proceedings, the Supreme Court noted. Therefore, the Supreme Court overturned the ruling of the second instance court and sent the case for a new trial on appeal. The Kaluga Regional Court should take into account: the allocation of a land plot and the creation of new land plots means that nothing should remain in common shared ownership (No. 85-KG18-14). The case has not yet been considered.

Expert opinion

In judicial practice, there are divisions of a land plot with a deviation from the size of the shares of each owner. To maintain a balance of interests, the court usually orders one of the parties to pay compensation (clause 4 of Article 252 of the Civil Code). In addition, to determine the most acceptable option, the court may order a land survey.

It should be taken into account that the law prohibits the endless subdivision of land plots whose area is less than the minimum size limits (review of judicial practice of the Supreme Court No. 4 of 2021). The minimum dimensions depend on the intended purpose and permitted use of the land. Formation of a plot of 22 square meters. m in shared ownership is unacceptable.

• The Supreme Court allowed the division of shared property against the will of the owners
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• Minor share: when the owner can be forced to sell his part of the home
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If the parties to the dispute want to resolve the situation, the court should help in this. Only in exceptional cases does the legislator allow a forced resolution of the issue if the allocated share is insignificant. “The ruling of the Supreme Court is a successful example of a judicial resolution of a problem that has arisen. The Supreme Court did not reject the claim, despite the formal grounds for this, and did not limit itself to explaining the current legislation, but went further, applying the law in practice. The appeal was recommended to invite the parties to reach an agreement on the method and conditions of division of property, including through the payment of compensation. Previously, such decisions have not been made at the level of the Supreme Court,” noted the head of the “Real Estate” department of MGP Lawyers MGP Lawyers Federal Rating. Group Bankruptcy (including disputes) Group Land Law/Commercial Real Estate/Construction Group Corporate Law/Mergers and Acquisitions Yuri Marfin. “This definition of the Armed Forces should be viewed positively. If the allocation of a share in kind is not prohibited by law and does not entail disproportionate damage to property in common ownership, there are no grounds for refusing the claim. At the same time, the court could, at its discretion, determine the most acceptable option for division,” says Sergei Omelchenko, a lawyer in the real estate and PPP practice of Duvernois Legal. “The Supreme Court rightly noted that the allotment procedure does not allow leaving part of the plots in the common shared ownership of the allotted person and other co-owners,” added the head of the additional office of the National Legal Service AMULEX National Legal Service AMULEX Federal rating. Andrey Eremin.

* – first and last names have been changed by the editors.

• Alina Mikhailova

• Supreme Court of the Russian Federation

Principle of calculating the minimum share

To calculate the minimum share, it is necessary to find out the standard of living space per resident in a specific locality. The standard is established by municipal legislation. The national average is from 8 to 14 sq.m. Federal legislation sets the standard at 12 sq.m.

Important! The standard is established regardless of the citizen’s age. Therefore, the size of the area will be the same for a working citizen, a child and a pensioner.

To calculate the minimum share in a specific residential premises, you must use the following formula:

MD=OP/N,

where MD is the minimum share;

OP is the total area;

N – standard area for 1 person.

Rules regarding improvements made to common property

As improvements, the law means the results of changing the parameters of property, ensuring an increase in its value or improving its essential properties.

The following actions are not:

• performing both routine and major repair operations. These costs are considered to be associated not with improving, but with maintaining the required characteristics;
• implementation of actions, although they are improvements, are characterized by excessive high cost and luxury in comparison with similar cases. This exception is made to protect other co-owners from possible unfair acts on the part of a more economically powerful entity.

Determination of shares in the property of spouses

At the request of the spouses, during marriage or during divorce, jointly acquired property registered in the prescribed manner can be divided. According to , the shares of the husband and wife are equal, unless there is an agreement providing for a different division procedure.

If there is no marriage contract or other agreement, but a dispute has arisen regarding the size of parts of the property owned, the parties have the right to go to court. Determination of shares in the right of common joint ownership of the apartment by spouses is carried out taking into account the following factors:

• interests of minor children;
• presence of conflict with one of the parents;
• non-receipt of income by one of the spouses for unjustified reasons, for example due to alcohol abuse or an antisocial lifestyle;
• exploitation of common property to the detriment of the interests of the family.

After determining the shares, you can establish the procedure for using the premises or redesign the housing with the allocation of parts in kind.

When determining a share in joint property in court, the following principles are taken into account:

• separation of property of children and parents (clause 4);
• parents’ independence in determining the form and procedure for providing content ().

Consequently, the courts do not consider it a reason to deviate from the principle of equality of shares only in the presence of minor children.

The procedure for disposing of shared property and real estate without determining shares is not the same. Therefore, before registering the right to a share of an apartment, you should consider the advantages of the second regime.

Find out more about the advantages of joint ownership of an apartment without determining shares.

Differences between Minimal and Minor Proportions

The law distinguishes such concepts as minimal and insignificant share. Let's look at the differences.

Differences between minimal and insignificant shares

The procedure for allocating shares

The main goal of owners when allocating parts of an apartment in kind is the opportunity to obtain a separate property. According to, rooms and parts of the apartment intended for living can serve as separate living quarters.

If it is technically possible to allocate parts, the participants enter into an agreement and make changes to the Unified State Register of Real Estate. After receiving the extract, the citizen is considered the owner of individual property. To change the mechanism for paying for utility services, residents initiate the division of personal accounts.

The process of dividing property is discussed in more detail in the material “Allocation of a share in an apartment.”

Establishing the procedure for using property

If the shared apartment is indivisible, clause 4 of Art. 252 and recognizes the right of owners to determine the rules for the use of housing. The size of the shares remains unchanged, and each participant is assigned a part of the premises.

The actual ownership order may not correspond to the documentary shares. But if the rights of one of the owners are clearly violated, the court has the right to allocate to each a part of the property in the form of a separate living space. The task of determining the order is to establish the most acceptable regime for everyone based on the equality of rights of owners.

Read more about how the procedure for using residential premises in shared ownership is established.

Common shared property

Inheritance, donation, privatization or purchase and sale by several citizens are situations when real estate becomes shared ownership. The portion owned by each participant is shown as a percentage or fraction of the total property. The size depends on the grounds for acquiring ownership and is determined as follows:

• by law during inheritance or privatization;
• agreement of all participants in the purchase and sale.

If the dimensions of the parts are not documented, they are considered equal. But at the same time, the rights of owners differ from the rights of participants in joint ownership.

The topic is covered in more detail in the material “Difference between shared ownership and joint ownership.”

Legislative regulation

The main regulatory document that regulates legal relations related to the ownership of shared property is. A special law establishing the dependence of the size of the share on the area owned by a person - and.

The procedure for determining the part is regulated by the following regulations:

• – obligatory share in the inheritance;
• – bequest of property to two or more heirs;
• Art. Art. 1142-1145 of the Civil Code of the Russian Federation – acceptance of inheritance by legal successors;
• – donation of real estate to two or more persons at the same time;
• Art. 3.1.

provides for an agreement to determine shares in the right of common shared ownership between co-owners. It also indicates the possibility of judicial resolution of the dispute in the absence of agreement.

Grounds for changing shares

The following factors influence the size of the apartment for each owner:

1. Changing the number of participants. For example, one of the 3 owners buys out a share, so instead of the due 1/3, he becomes the owner of 2/3.
2. Carrying out work that is regarded as an integral home improvement. Let's assume that an apartment with an area of ​​60 m2 is owned by two owners in equal shares. One of them makes an extension and the square footage increases by 30 m2. Now the share of one owner is 1/3, and the other is 2/3.

Changing the shares in the common shared ownership of 3 or more participants in the apartment is carried out in the same way.