How to allocate a room from a share in an apartment in 2021

​The allocation of a share in an apartment owned by several owners allows each of them to use the part of the housing they own at their own discretion. In this article we will tell you what a share in an apartment is, how to allocate it in kind, and how shared ownership differs from joint ownership.

• Share in an apartment: what is it?
• What is the difference between common shared and common joint property
• How to determine the share in an apartment if the ownership is joint
• Why is it necessary to allocate shares?
• Methods for allocating shares in an apartment
• When allotment of shares is impossible
• What can you do with the received share?
• How to separate a share in an apartment from common shared ownership: step-by-step instructions
• Separation from joint property: step-by-step instructions
• Allocating a share in kind: step-by-step instructions

Share in an apartment: what is it?

A share in an apartment is a part of the apartment that belongs to one of its owners on the right of common shared ownership. The share can be any - 1/2, 1/4, 1/20 and even 17/48, etc. The apartment can be divided into shares in the following cases:

• during privatization;
• in case of divorce;
• when buying an apartment using maternity capital funds;
• when concluding an agreement between owners;
• during inheritance, etc.

Having the right of shared ownership in an apartment does not mean that the owner owns a certain part of it - for example, a living room or bedroom. The share only shows how many square meters of housing a person owns. The owner must agree on the procedure and conditions for its use with the other owners.
If an agreement cannot be reached, the court will come to the rescue - it will determine the procedure for using the residential premises (clause 1 of Article 247 of the Civil Code of the Russian Federation). To obtain the right to a specific part (for example, to a separate room), a share of the shared ownership will have to be allocated.

The concept of common property

The right of common ownership is the right to own a certain object, for example an apartment, which extends to several persons. This type of ownership has an important feature - the plurality of subjects of ownership.

Common property appears if it is impossible to divide the territory without changing its purpose or the division is prohibited by law.

Article 244 of the Housing Code of the Russian Federation establishes that common property is shared, but not in all cases. Such exceptions are specified in legislation or in the contract. In community property, the standard rule of equal division applies unless the contract or law provides otherwise.

Common joint property differs from shared property. In the first case, the property is a common property, which is not divided into shares.

Community is manifested to the highest degree, since such relationships are established mainly between spouses and other close people. In the second case, the size of the shares into which the property is divided is determined in advance. The co-owners themselves may be complete strangers.

What is the difference between common shared and common joint property

According to paragraph 1 of Art. 244 of the Civil Code of the Russian Federation, if one piece of property belongs to two or more people at the same time, such property is considered common property. There are the following types of common property (clause 2 of article 244 of the Civil Code of the Russian Federation):

1. Total share – the shares of each owner are allocated.
2. General joint - such shares are not allocated.

The difference between these types of common ownership is obvious - if an apartment belongs to several people on the basis of joint ownership, they have equal rights to it and can use the residential premises as they want - as a rule, with joint ownership, members of the same family give each other complete freedom in operation apartments.

Shared ownership means that each family member is allocated a certain share, and its size may determine how comfortable the owner’s living in the apartment will be. If family members maintain good relationships, the fact that they own the apartment as shared ownership does not matter much - they will jointly pay for utilities and share housing, regardless of the shares in which the apartment is divided between them. If the relationship is tense, the owner of a larger share may demand that the owner of a smaller share use only that part of the housing that belongs to him. In this case, you will need to allocate a share in the apartment in kind - we will talk about what this means and how to do it below.

How is the selection made?

Judicial practice is based on the following norms:

Expert opinion

As a result of the division, two separate living areas are formed. According to Article 16 of the Housing Code of the Russian Federation, rooms are recognized as such. Accordingly, such housing will be recognized as communal - with a shared kitchen and bathroom, but separate living areas . If the owner has no obstacles to the allocation of his share, then he can apply to the authorized bodies to formalize the redevelopment of the apartment and change its purpose to communal use. A share equal to the living space of a separate room is allocated.

Reshetnikova R.N., lawyer

How to determine the share in an apartment if the ownership is joint

If the property is joint, the size of the share belonging to each of the owners is not determined . To allocate a share to each of them, it is necessary to determine what part of the living space each owner can claim. To do this, it is important to determine how the owners got the apartment :

• If the housing was purchased during marriage, and the owners are husband and wife, their shares in the apartment should be equal - 1/2 and 1/2.
• If the apartment was purchased using maternity capital funds, we must not forget about the children - they will also have to allocate shares in an amount no less than the part of the apartment paid for with public money.
• If one of the spouses invested his premarital property in housing, he may qualify for a larger share compared to the other spouse.

Shares can be allocated in any ratio, even if the apartment was purchased during marriage, for example, one spouse can receive 7/10 of the apartment, and the second - 3/10. It is important to document the fact of such division - for this purpose, a marriage contract is drawn up, which sets out all the property rights of each spouse.

Features and nuances

You can give a share to your wife if the owner is one husband. First, it is necessary to allocate the marital shares, and then gift them to the wife. But if a woman already has the right to ½ housing, then there is no need to carry out the procedure.

Allocation of spousal share in property acquired during marriage

When only the husband is the owner, he has the right to set any size of share. At the same time, he does not need to obtain permission from the other co-owners, since the donation is a gratuitous transaction.

When drawing up a gift agreement, you must go to an employee of a notary agency and have the document certified. Next, the alienation of the share is registered in Rosreestr.

If a man decides to give a share to his ex-wife, then the woman will need to pay income tax.

Why is it necessary to allocate shares?

Allocation of shares may be required in the following cases:

1. if one of the owners wants to dispose of the share at his own discretion - sell part of the living space belonging to him, place tenants in it or live in it himself;
2. if the owners cannot determine who will pay utility bills for the apartment;
3. if other disputes arise between the owners that do not allow full use of the housing with comfort for each of them.

In what cases is this necessary?

Since allocating a share of an apartment in kind allows you to fully dispose of your part of the real estate, such a need arises very often.

For example, in such cases:

• divorce and division of joint property;
• entry into inheritance of two or more people;
• impossibility of living together (for example, a woman with young children does not want to live in the same apartment with her drinking brother);
• other disputes that can only be resolved by dividing the living space.

It is worth noting that if separation of communications and installation of separate entrances is impossible, then the apartment can be transferred to communal status.

That is, each owner will have a designated room in which he lives, but common areas will remain joint ownership. And the procedure for their use will be determined by voluntary agreement of the parties or by a court decision.

When allotment of shares is impossible

You can allocate a share in an apartment only if the allocated part can be fully used without affecting your neighbors. Obviously, it is impossible to allocate a share in a one-room apartment - dividing the room into separate isolated parts will not work.

In addition, it is impossible to allocate a share in the following situations:

• if the separated room is a passage room;
• if the premises are unsuitable for habitation;
• if an illegal layout was carried out in the apartment.

What is the difference between separation of shares and division of property?

From a legal point of view, separation of a part and division of real estate are completely different concepts.

If a citizen has allocated his own part of the living space, he becomes the owner of the space in which he can live autonomously. The legal status of the remaining neighbors does not change; they remain joint owners.

Division of property means that each resident gets a new premises, which is in his sole possession. Common property ceases to exist as a separate category.

What can you do with the received share?

The owner has the right to independently decide what to do with his share. According to paragraph 2 of Art. 246 of the Civil Code of the Russian Federation, he can perform the following actions with it:

1. sell;
2. give;
3. bequeath;
4. pledge;
5. dispose of otherwise.

The restrictions that the owner may encounter when exercising his rights relate only to the sale of his share - he can perform other actions without hindrance.

Art. 250 of the Civil Code of the Russian Federation establishes the concept of a pre-emptive right to purchase - it means that in the event of a sale of a share of an apartment, the owners of the remaining shares have a pre-emptive right to buy it back at the price for which it is sold.

To sell a share taking into account this rule, the owner must:

• set a sales price (note that it will no longer be possible to reduce it for third-party buyers);
• notify in writing all owners of the remaining shares about the upcoming sale and offer them to buy out the share being sold at the specified price;
• wait for a response from all owners (and if there is no response, wait until the 30-day period has expired from the date the notification was sent).

You can do it another way - gather all the owners and invite them to enter into an agreement to refuse to purchase a share in the apartment at the price offered to them. The agreement must be drawn up in writing and certified by a notary.

Some share owners (most often on the advice of realtors) try to circumvent the requirement for a pre-emptive right to purchase by concluding a gift agreement with the buyer. In this case, first of all, the buyer is at risk - if it turns out that the donation covered an actually completed purchase and sale agreement, the transaction will be declared invalid and the share in the apartment will have to be returned. Whether it will be possible to return the money paid is a rather controversial issue.

Rights of owners of shared ownership

The legislation determines what exactly the owner can do with his share:

• own;
• dispose of;
• exploit.

The main condition is that the implementation of rights does not affect the interests of other parties. Therefore, the disposal of real estate in shared ownership is possible only with the consent of other shareholders.

Sales and rentals will be possible only with the consent of other shareholders. An exception is donation, which allows you to transfer the area to another person without obtaining consent from the co-owners.

To draw up a will to transfer a share, consent from the co-owners is not required. This rule is based on Article 1119 of the Civil Code of the Russian Federation. If the will does not indicate what share will go to each of the heirs, then the property is divided into equal parts.

Despite the fact that the law does not establish a restriction on the use of a share of an apartment as collateral, banking institutions do not accept such property. The reason is the difficulty of compensating for losses through fractional ownership.

How to separate a share in an apartment from common shared ownership: step-by-step instructions

Property that is in common shared ownership can be divided between its owners by agreement between them, and if such an agreement is not reached, by a court decision (Article 252 of the Civil Code of the Russian Federation).

To allocate a share under an agreement, you must:

1. Determine the size of the share belonging to the allocated owner (we have already talked about how to do this).
2. Notify other owners of the need to allocate a share.
3. Conclude an agreement to determine shares in the apartment. The form of the agreement is not defined by the legislator, so you can draw it up yourself, or use our sample. When drawing up a document, remember that it must include the following information:

• personal data of all apartment owners;
• date and place of drawing up the agreement;
• the exact address of the apartment from which the share is allocated;
• description of the apartment: area, floor, number of rooms, balconies, loggias, common areas, etc.;
• the size of the share belonging to each owner;
• details of title documents;
• signatures of all parties to the agreement.

1. Register the agreement with Rosreestr (documents can be submitted directly to Rosreestr or through the MFC).

If you cannot reach an agreement with other apartment owners, you will have to go to court . To do this, you will need to draw up a statement of claim (you can download a sample of it on our website). The claim should indicate:

• name of the court to which the documents are submitted;
• information about the plaintiff: full name, home address and telephone number;
• a description of the situation that led to the need to go to court;
• details of the document confirming the fact that the plaintiff has the right to a share in the apartment;
• requirement to allocate a share in the apartment;
• date of document preparation and signature of the applicant.

The share allocated based on a court decision must also be registered with Rosreestr (directly or through the MFC).

Based on the results of the share allocation procedure:

1. the documents record the size of the share allocated to the owner;
2. if a division of property in kind was declared, the share is allocated in kind;
3. if it is impossible to allocate a share in kind (for example, if the apartment is one-room), the owner is awarded monetary compensation.

How to draw up an agreement on determining shares?

Current legislation does not offer a unified form of agreement. It is always prepared in writing, in compliance with the rules of business style. In order for a document to have legal force, it contains a set of mandatory information:

• the name of the document is “Agreement on the division of shares”;
• No. and city of signing;
• Full name, registration address and passport information for all co-owners of the living space;
• the exact address of the apartment, information about it (footage, additional characteristics);
• cadastral number of the living space;
• agreed size of shares (in percentage);
• information on encumbrances on the property of neighbors, if any;
• number of copies of the agreement.

Separation from joint property: step-by-step instructions

According to paragraph 5 of Art. 244 of the Civil Code of the Russian Federation, property that is in joint ownership can be established as shared ownership. The basis for this is also the agreement of the parties, and if it is impossible to achieve it, a court decision.

The procedure for drawing up an agreement, as well as the procedure for going to court, are described above - they do not differ in any way, therefore, to allocate shares from common joint property, you can safely follow the instructions for allocating shares from shared ownership.

Arbitrage practice

The greatest difficulties in deciding by the court the issue of allocating a share from an apartment occur when considering cases in which there are other issues that require trial. For example, if spouses divorce and divide property, the apartment is included in the inheritance estate or the location of the co-owner is not established.

In these cases, it is necessary to first obtain a court ruling on the main issue and only then apply for natural division of real estate. No less difficulties arise with determining the value of the allocated share. Often a lengthy forensic examination is ordered and a decision is made based on its results.

Example. Brothers Sokolov P.V. and Sokolov I.V. In 2006, they inherited a one-room apartment of their parents as common shared ownership. The older brother was placed in prison to serve his sentence in 2007 for committing a crime. During the absence of brother Sokolov I.V. lived in an apartment, made repairs in it, changed communications, purchased new windows, thereby significantly improving the technical condition of the housing, and, accordingly, its market value. After returning to his parents’ apartment in 2015, P.V. Sokolov. led an antisocial lifestyle and drank alcohol. Sokolov I.V. made an offer to buy out his brother’s share. However, the brothers were unable to come to an agreement on the amount of payment out of court, since the elder did not believe that the improvements made by I.V. Sokolov. he is obliged to pay. Then Sokolov I.V. filed a claim in court for the allocation of a share, provided evidence of the amount of funds spent on improving the home, and the court sided with him, reducing the value of P.V. Sokolov’s share.

Registration of an allocated share

State registration of rights is carried out by Rosreestr within ten working days (if the set of documents is in order).

As a result, all owners who submitted an application will receive certificates of ownership of the established form.

The registration authority specialist is provided with:

• Statements from all parties to the transaction;
• Applicants' passports;
• A court decision on the allocation that has entered into force (2 copies);
• Receipt for payment of state duty from applicants - optional. This document is not required to be provided, because Rosreestr employees can independently check the fact of payment in a special program.

Opportunities for room owners

If a person is a full-fledged owner of a certain room in an apartment, then his rights and opportunities expand. This way, the owner of the room will be able to carry out any real estate transactions without obtaining consent from the co-owners of the apartment. Only common areas (kitchen, bathroom, corridor) remain indivisible. All costs associated with repairs, maintenance, and payment for housing and communal services are divided according to shares.

The only rule that remains in the case of a room is its sale. Co-owners of the apartment have the first right to purchase real estate, therefore, a month before the transaction, all owners must be notified of the sale of the area.