Notice of sale of a share in the right of common shared ownership - sample

Who needs to be notified about the desire to sell a share in an apartment

The preemptive right to purchase a share is defined in Art. 250 Civil Code of the Russian Federation. It states that, regardless of the degree of relationship between the seller and the buyer, the main contenders for a paid portion of the apartment are other co-owners.

This means that if you decide to sell your share in a residential property, the first step is to notify the other co-owners of your intention.

It should also be taken into account that if you subsequently sell your share to other persons (not the owners of other parts) for an amount that is less than that which was offered to the co-owners, then such a transaction can be considered invalid.

In addition to notifying other apartment owners, the law does not oblige you to tell anyone about your plans to alienate the property.

You cannot assign your pre-emptive right to acquire a share. That is, only the co-owner needs to report the intention to sell part of the apartment, and not his relatives and authorized representatives.

Notification is only required in the case of the sale or exchange of part of the property. If you decide to give it as a gift, no one will have priority rights. However, if, under the guise of a gift agreement, a purchase and sale transaction is nevertheless carried out (money is transferred), then in the future interested parties will be able to recognize it as void. We have already talked about how to carry out this procedure correctly in the article “Agreement for the donation of a share in an apartment.”

Problems of Art. 250 Civil Code of the Russian Federation

In practice, this means that respectable buyers of such real estate are rarely found, but transactions are made quite often. For this purpose, so-called “professional neighbors” even emerged. Usually they become temporary owners who buy a share in the apartment not with their own money, and then transfer the property to other persons. Their task is to create intolerable conditions for the living owner of a share who is unable to buy out another, because of which he will then agree to any transaction.

Thus, the owner of half an apartment in Moscow can easily become the owner of a small house in a village in the Moscow region. New owners begin renovations, destroy the kitchen and bathroom, often hiding behind the child. As a result, while formally remaining within the legal framework, participants in shared ownership are forced to part with their property.

However, not everyone and not always... So, on May 24, 2021, the owner of a share in an apartment in a house on Molostov Street in the East of Moscow, Alexander Borovoy, shot one of the “professional neighbors” with his carbine, after which he tried to commit suicide. Regardless of the degree of his guilt, the tragedy would not have occurred if the legislation had been more perfect.

For example, in a number of European countries, including Germany, this is impossible in principle. If the owner of a share in an apartment wants to sell it, then the entire apartment is sold, after which the proceeds are divided, and the transaction is completed only after all participants in shared ownership receive new housing. An apartment is, first of all, a place for individual living, and only secondarily - a subject for speculation.

If the seller commits any violations in informing other participants, then each of them has the right to demand the transfer of the buyer’s rights to themselves within three months. True, at the same time there is an obligation to buy.

For most, this becomes a financially insurmountable task. Not only pensioners, but also the vast majority of ordinary working citizens are unable to raise the money required to buy out a share in another participant’s apartment. Not everyone will be provided with a loan from banks for this purpose.

Owners of other shares who do not have money and the desire to change the owner of a share that is not theirs have only two ways to solve the problem. The first is more economic, providing for the immediate sale of your share on terms that will allow you to purchase other real estate. To do this, you need to notify the co-owners in writing.

The legislation does not give a clear answer to the question of what should be contained in the notice. Obviously, this is complete information about the property and the selling price. Advertisements with the same price can be published in the media on the same day. The second option is associated with the beginning of judicial proceedings on other issues. You can file a claim in court for the allocation of your share in kind. The likelihood that the court will allow this to be done is extremely low, but after receiving a negative decision, you can go to higher courts, and while the apartment is under trial, no transactions with it are possible.

This article applies to any property that is in shared ownership. This can be movable property, uncertificated securities, shares in the authorized capital of legal entities and everything that individuals own as participants in shared ownership. Therefore, the application of the article is expanded to those cases where we are not explicitly talking about purchase and sale transactions.

For example, the Presidium of the Supreme Arbitration Court of the Russian Federation in its information letter dated December 21, 2005 No. 102 noted that Art. 250 of the Civil Code of the Russian Federation can also be applied in cases where the dispute does not clearly relate to purchase and sale transactions. This means that it is also relevant when alienating a share as compensation, as well as under an exchange agreement.

It is also important that the assignment of preemptive rights to third parties is impossible. It does not apply only in the case of a gift, which also leaves a “loophole” with the help of which some unscrupulous persons try to circumvent the law.

Form and procedure of notification

In Part 2 of Art. 250 of the Civil Code of the Russian Federation states that notification of the desire to sell one’s share in an apartment must be in writing. Therefore, even if there is a trusting, family or friendly relationship between the co-owners, you should not neglect this procedure and simply obtain verbal consent to sell to other persons. Subsequently, such a transaction may be recognized as illegal.

There are several ways to send this document, each of which has advantages and disadvantages. Let's look at them in more detail:

Which delivery method to choose is up to you to decide, based on your specific conditions and situation.

Procedure for selling a share of an apartment after notification

Once the co-owners have received your notice of sale of the share with a specific specified amount, they have 1 month to make a decision. If you do not receive a written response within this period, you can proceed further. But the message about the intention to sell the home, indicating the date of receipt by the addressee, must be saved so that in case of disputes you have indisputable evidence.

If the co-owners of the residential premises decide not to purchase a share before the expiration of the month, then they can write a refusal and then there is no need to wait 30 days for further sale.

After receiving a refusal, you must proceed as follows:

1. To make an agreement. You can read how relatives can do this in our article “How to buy out a share in an apartment from a relative.”
2. Registration with a notary. In accordance with the requirements of Federal Law No. 122 “On registration of rights to real estate and transactions with it”, starting from 2021, all transactions made with shares of apartments are subject to mandatory certification at a notary’s office.
3. Transfer of property and money. The order of these procedures is determined by the parties during the signing of the purchase and sale agreement.
4. Registration in Rosreestr. For this, a state fee is paid. In 2021, its amount is 2,000 rubles, the necessary documents are collected and after 14 days an extract from the Unified State Register of the new owner is obtained.

Expenses, cost

The method of delivery of letters affects the financial costs on the part of the seller. Choose the option that is closest to you in terms of budget:

So, in order to sell a share in an apartment, you need to inform the current co-owners about the transaction. The responsible person draws up and sends proposals to shareholders. The transfer of letters occurs at the request of the sender: in person, by mail, by courier, by power of attorney or through a notary. Responses to proposals are received within 30 days. If no one agrees to buy out the share in the apartment, the seller will have the right to negotiate with third parties.

Are you worried about drawing up a notice of sale of a share?
It is not surprising that for many people this is stressful, and some do not even know about this procedure. In order not to ruin the deal, to maintain your nerves and dignity, seek advice from a lawyer. You will learn how to write a proposal correctly, what to include in it, the best way to send it, and how to protect yourself in case of claims. Ask questions in the chat or call the hotline! Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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What to do if the right of pre-emption is violated

Often, the rights of co-owners of residential premises when one of them sells their share is violated for one reason or another. This could be simple ignorance of the law, or a desire to “annoy” your roommates.

Violation of rights can occur in two cases:

• the share was sold without any notice to other participants in the shared ownership;
• the share was sold before the statutory period of 1 month before receiving a refusal.

In both of these cases, the legislator is on the side of the co-owners. Each of them can, within 3 months, file a lawsuit and restore their rights. However, according to the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 and the resolution of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On issues arising in the resolution of disputes related to the protection of property rights,” this three-month period is calculated from the moment when the violation was discovered.

Example. Sokolov and Bragin owned a two-room apartment in equal shares (½ each). Sokolov did not actually live in the apartment. In 2015, he decided to sell his part of the housing, but did not notify Bragin, but made a deal with Ivanova. She, in turn, also did not apply for living in the apartment. In [current_date format='Y'] year, Bragin collected documents to obtain a loan and, among other things, ordered an extract from the Unified State Register of Real Estate, so he learned that the second half of the apartment actually no longer belonged to Sokolov. Then he went to court, and the deal to sell part of Ivanova’s home was declared illegal, despite the fact that 3 years had passed since it was completed.

Statement of claim

In order to defend your priority right to acquire part of the shared property, you must draw up a statement of claim and apply with it to a district court of general jurisdiction. The claim is drawn up according to the general rules specified in Art. 131-132 Code of Civil Procedure of the Russian Federation.

It should be noted that the defendants will be both the buyer and the seller, and the third party will be the Rosreest authority that made the changes to the Unified State Register.

Required documents

Along with the claim, the following package of documents is sent to the justice authority:

• extract from the Unified State Register of Real Estate for the plaintiff’s property (certificate of ownership – until 2021);
• a copy of the applicant's passport;
• document providing the basis for the plaintiff’s acquisition of rights to a share of the apartment (privatization agreement, certificate of inheritance, etc.);
• an extract from the house register (apartment card) about persons registered in the housing;
• technical documentation for the property;
• receipt of payment of state duty;
• a receipt for crediting money to the account of the Department of the Judicial Department under the Armed Forces of the Russian Federation in the amount of the cost of part of the apartment (it is equal to the amount for which the unscrupulous seller has already sold part of the housing, i.e. is the price of his share);
• copies of statements for each defendant and for the judge.

Deadlines

It is impossible to determine the exact time frame for consideration of the claim. It all depends on the positions of the parties, the need to appeal decisions, and in some cases, the need to conduct various examinations. For example, handwriting analysis, if there are doubts about the reality of the notification. However, the court of first instance will definitely not make a decision earlier than 2 months from the date of filing the claim.

Price

The amount of the mandatory fee when filing a claim in the court of first instance depends on the value of the claim. That is, from the amount for which the share has already been sold. The amount of the state duty is regulated by the provisions of Art. 333.19 Tax Code of the Russian Federation.