Quite often there are situations when one piece of real estate (for example, an apartment) belongs to several owners at the same time. Such property is considered common. At the same time, current legislation divides common property (CO) into shared and joint property. In this article we will understand what is the difference between one type of property and another.
We would like to draw your attention to the fact that issues arising in the field of property are classified as particularly complex. If you need advice, qualified assistance in resolving a conflict situation or in registering property, it is better to contact a professional lawyer.
What does the law say?
The law does not prohibit the ownership of one property by several people at once. Often, apartments and residential buildings are jointly owned by spouses, children and parents, other relatives, as well as complete strangers. In order to regulate the procedure for holding real estate in common ownership, the legislator introduced an article into the Civil Code of the Russian Federation (Civil Code of the Russian Federation) devoted to the main aspects of this issue. Thus, first of all, let us turn to Art. 244 of the Civil Code of the Russian Federation: it will help you understand how joint property differs from shared property.
The following feature helps to distinguish joint ownership from shared ownership: the presence of a definition of the shares of each owner in the OS. If the OS defines the shares of the owners, it will be considered shared ownership. If the shares are not allocated, and the owners own it jointly, it is, accordingly, joint property.
Since joint ownership does not provide for the determination of shares, in this case the owners dispose of the real estate or other property jointly (taking into account the principle of good faith). If the owners have a desire to divide the property, the law does not prohibit this. After division, the shares will constitute shared ownership.
Important! The shares can be either equal or unequal. Owners have the right to dispose of property within the limits of the shares that belong to them.
Re-registration of an apartment for one owner
2 tbsp. 217.1 of the Tax Code of the Russian Federation, such income is exempt from taxation provided that the share was owned for the minimum maximum period of ownership of the real estate object or more. According to paragraph 3 of Art. 217.1 of the Tax Code of the Russian Federation, the minimum maximum period of ownership of a real estate object is three years for real estate objects in respect of which at least one of the following conditions is met: 1) ownership of the real estate object was received by the taxpayer by inheritance or under a gift agreement from an individual, recognized as a family member and (or) close relative of this taxpayer in accordance with the RF IC; 2) ownership of the real estate property was acquired by the taxpayer as a result of privatization; 3) the right of ownership to an object of real estate was received by the taxpayer - the rent payer as a result of the transfer of property under a lifelong maintenance agreement with dependents.
When does shared property between spouses arise?
As we have already noted, various questions regarding the disposal of OS often arise among married spouses. It should be noted that shared ownership of property (for example, an apartment owned by a husband and wife together) can arise when the contractual regime is applied. If the legal regime established by family law is used in relation to property, joint property arises. In order for an object of property to belong to spouses on the right of shared ownership (the difference is very important), it is necessary:
- conclude a marriage contract;
- conclude a separate agreement for the acquisition or creation of property assets.
If joint property is converted into shared property by concluding a marriage contract, then the contractual regime will apply to all property belonging to the spouses (and mentioned in the terms of the document). The conclusion of a separate contract for an object provides for the extension of the contractual regime to a certain property. In controversial situations, shared ownership of property can be established through the court.
Important! One part of the spouses’ property may be in shared ownership, and the other in joint ownership. Accordingly, for different objects of property it is possible to apply different regimes - both legal and contractual.
The Supreme Court told how spouses should divide shared property
We need an agreement on the division of common property
After the divorce of Marina Kurbaeva* and Igor Idrasov*, a dispute arose about the division of jointly acquired property. During the marriage, the parties, using common funds, acquired a plot of land and a residential building, which was registered in the name of Idrasov and two common daughters, 1/3 of a share each. Kurbaeva decided that the 1/3 share of the land plot and residential building owned by the defendant is the common joint property of the spouses and is subject to division in equal shares. She went to court, where she asked to recognize her ownership of 1/6 of the specified real estate.
CASE No. 20-KP9-13
PLAINTIFF: Marina Kurbaeva*
DEFENDANT: Igor Idrasov*
ESSENCE OF THE DISPUTE: Division of property acquired during marriage, registered as the shared ownership of one of the spouses
DECISION: If there is no agreement on the division of jointly acquired property, it is divided equally between the spouses
The Kirovsky District Court of Makhachkala refused to satisfy the claim, the Supreme Court of the Republic of Dagestan left the decision unchanged. The courts came to the conclusion that the parties during the marriage made a division of jointly acquired property with a deviation from the beginning of equality of shares, taking into account the interests of minor children. Therefore, the 1/3 share of the disputed real estate belonging to the defendant is not common joint property and is not subject to division.
Kurbaeva appealed to the Supreme Court. He recalled: spouses have the right, at their discretion, to change the regime of common joint ownership of property acquired during marriage or part thereof on the basis of a marriage contract or any other agreement that does not contradict the norms of current legislation (Article 37, paragraph 2 of Article 38, Article 41– 42 of the Family Code). Meanwhile, there is no reliable evidence in the case materials confirming that an agreement was reached between the plaintiff and the defendant on the division of jointly acquired property. Neither the purchase and sale agreement of a land plot with a residential building, nor the registration of the right to common shared ownership is such an agreement on the division of the common property of the spouses. Therefore, the Supreme Court canceled the previously adopted acts and sent the case for a new trial to the court of first instance (No. 20-КГ19-13). It has not yet been reviewed.
Property acquired during marriage belongs to both spouses
“The right to common property acquired by spouses during marriage belongs to both spouses, regardless of which of them and in whose name it was acquired. In the event of a dispute, spouses are not required to prove the fact of community of such property. The corresponding explanations are given in paragraph 15 of the Resolution of the Plenum of the Supreme Court of November 5, 1998 No. 15,” said adviser Muranov, Chernyakov and partners Muranov, Chernyakov and partners Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group Dispute resolution in courts of general jurisdiction Olga Benedskaya. Lawyer Infralex Infralex Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Digital economy group Corporate law/Mergers and acquisitions group Tax consulting and disputes (Tax disputes) group Family and inheritance law group Tax consulting and disputes (Tax consulting) group Criminal law Company profile Irina Zimina noted that a similar approach existed in the courts before (No. 33-11973/2018). “The determination of the Supreme Court is very important, since some lower courts incorrectly interpret the current norms of family law, which is what happened in the case considered,” noted Anna Zabrotskaya, partner and head of the Dispute Resolution practice of Borenius Attorneys Russia Borenius Attorneys Russia Federal rating. Group Corporate Law/Mergers and Acquisitions Group International Litigation. According to Elena Siebert, manager of the auditing and consulting group BDO Unicon, the lower courts, when denying one of the spouses a claim, were guided solely by the fact of registering property in the name of the other spouse and the presence of minor children: “This approach cannot be considered correct and based on law."
The definition of the Supreme Court clearly returns us to the source - the law. It establishes that the division of the property of the spouses must be carried out in the prescribed manner: by marriage contract, agreement or court.
Galina Pavlova, managing partner of Pavlova and partners Pavlova and partners Federal rating. group Family and inheritance law group Insurance law group Private wealth management group Bankruptcy (including disputes) group Arbitration proceedings (major disputes - high market) Company profile
Benedskaya is sure that the court, upon a new examination, will find out whether a marriage contract or an agreement on the division of property was concluded between the parties. If they were not concluded, then the claim will be satisfied. Lawyer AB Kazakov and partners Kazakov and partners Federal Rating agreed with her. Antitrust Law group (including disputes) Bankruptcy group (including disputes) Natural Resources/Energy group Criminal Law group 22nd place By revenue per lawyer (more than 30 lawyers) 22nd place By number of lawyers 37th place By revenue Company profile Natalya Bokova: “I believe that with a new consideration of the case the court will have to satisfy the claims and recognize the plaintiff’s ownership of a 1/6 share in the disputed real estate.”
* – first and last names have been changed by the editors.
- Alina Mikhailova
The nuances of selling an apartment in shared or joint ownership
If the shares in the apartment are not determined, the owners have equal rights to ownership, disposal and use of housing. When selling an apartment, the owners will have to act together. Unlike shared ownership, in this case several owners act as a single party. The money that will be received from the sale is divided equally between the former owners of the apartment.
The difference between the sale of apartments that are in joint or shared ownership is that in the second case, each owner can sell his share (or dispose of it in another way). Unlike joint ownership, they do not act as a single owner, but separately. In this case, it is necessary to take into account the pre-emptive right to purchase the share being sold, which the law grants to other owners of the property.
Let's summarize. The difference between joint and shared ownership is quite significant. It is especially important to understand the differences when controversial situations arise. If you have problems disposing of property that is owned by several people at the same time, it is better to seek help from a lawyer. A specialist will develop the optimal solution and help you prepare documents.
Source:
The concept and grounds for the emergence of common property
Conditions and reasons
Expert opinion
Dmitry Nosikov
Lawyer. Specialization: family and housing law.
What pushes people to convert joint ownership to shared ownership or vice versa? Let's look at the reasons.
- desire to receive a tax deduction;
- divorce and division of a common apartment with a mortgage;
- joining a family union;
- intention to bequeath or donate a share in an apartment (for example, a wife wants to transfer her share to a child).
Before proceeding with the translation, owners must take into account the nuances of the procedure. Such re-registration is not appropriate in all cases.
Conditions for changing the ownership regime:
- consent of homeowners;
- physical possibility of allocating a share in kind - a separate room;
- size of living space – it will not be possible to divide a 1-room apartment.
So, if the housing meets the standards, and the co-owners are not against the transfer, no problems will arise. Therefore, you can begin to review the instructions.
Types of property
In 1991, a law on privatization was adopted in Russia. As a result, the share of private property in the housing stock of the Russian Federation began to grow rapidly. Over the past 30 years, most of the municipal housing has become the private property of the citizens living there.
Current legislation defines two types of private property:
- individual, when the object belongs to one person;
- shared – housing is the property of two or more citizens.
Common property, in turn, can be joint or shared.
What is the difference between joint ownership and shared ownership?
There are 3 main types of property rights:
- Property – property is owned by one person. He can dispose of it at his own discretion.
- Common shared ownership - property is owned by several people. Each of them has a certain share.
- Joint ownership - several owners, but without defining shares.
The type of ownership is prescribed in title documents: an extract from the Unified State Register of Real Estate, a purchase and sale agreement, a gift agreement, a certificate of inheritance, etc.
Sources
- Markarian Ruben Jury trial. Features of the process and secrets of successful performance in debates; Tsentrpoligraf - M., 2015. - 147 p.
- Schneider E.V. Jurisprudence. Crib. Tutorial; Prospekt - M., 2008. - 529 p.
- Uletova Galina Draft Federal Law of the Russian Federation “On the enforcement activities of private bailiffs”; Legal Center - M., 2005. - 968 p.
- Golovnenkov Pavel Criminal Code (Criminal Code) of the Federal Republic of Germany: scientific and practical commentary and translation of the text of the law. 2nd edition; Prospect - M., 1996. - 115 p.
- Borisov A. N. Commentary on the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (article-by-article); Justitsinform - M., 2021. - 152 p.
On joint ownership of an apartment without determining shares
Joint ownership of an apartment without determining shares is regulated in Russia by the provisions of the Civil and Family Codes. Ownership of property involves different forms of ownership. While in a legal marital relationship, spouses buy housing, vehicles, and valuables. In the future, all these objects acquire the status of joint ownership. When both members of a family couple use an apartment, problems usually do not arise. Difficulties arise when you need to dispose of real estate, since it is considered common.
Bankruptcy
It is proposed to make significant changes to the bankruptcy legislation in relation to the sale of property of a citizen declared bankrupt and having a spouse (including a former one). The bill establishes that only what is allocated to a citizen as a result of the division of joint property of spouses (including former spouses), which is carried out in accordance with the rules provided for by family law, is subject to sale in a bankruptcy case. At the same time, in order to save time, demands for division are considered by the arbitration court hearing the bankruptcy case.
Another proposed innovation in bankruptcy legislation is the introduction of a new article regulating the possibility of joint bankruptcy of spouses (including former spouses), if the claims of creditors relate to the common obligations of the married couple.
