Allocation of a share in kind in a private house, how it is done

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Many people do not understand the difference in the concepts of “division of property” and “allocation of a share in kind in a private house.”

The second means that one of the owners takes part of the property into individual ownership.

That is, he receives property that he has the right to dispose of without the consent of other owners.

But for this procedure certain conditions must be met.

Therefore, this procedure mainly applies to residential buildings rather than apartments.

Features of shared ownership

Shared ownership is a type of common ownership. The documentation for the premises indicates the exact amount of property of each owner.

The ownership documents indicate the exact size of each share of the property

When separation does not occur:

• each owner uses all the premises of the house and the area of ​​land adjacent to it;
• the owners independently agree on the use of common property;
• when it is not possible to separate a share in kind in an apartment, compensation can be applied; Utility payments are distributed in proportion to shares.

The features of shared ownership are determined by their individual procedure for use and sale.

How does it happen and why is it necessary to allocate a share in kind from the common property of a private house?

The procedure for accounting and registration in Rosreestr

Accounting and registration in Rosreestr is the final stage of the section. As a result of the procedures, the following consequences arise:

• changes are made to the Unified State Register of Real Estate regarding the new size of shares of owners;
• information about the object that was divided into new ones is canceled;
• newly formed premises are assigned cadastral numbers, and their main characteristics and identifiers are entered into the Unified State Register of Real Estate.

Rosreestr will issue applicants with extracts from the Unified State Register of Real Estate, which will indicate the new sizes of shares and information about the newly formed objects after the division.

Expert commentary. We talked only about the main nuances and options for dividing real estate. It is impossible to carry out the division without the involvement of specialists and approvals. Our company provides turnkey real estate division services, will help you prepare documents and go through all stages of approval. up to accounting and registration in Rosreestr. You can learn more about the terms of cooperation at a consultation with our experts.

Why might you need to allocate a share in kind in a private house?

Allocation of shares is usually practiced if a private house is jointly owned

The presence of disagreements between owners is one of the main reasons for the emergence of situations related to the allocation of a share in kind of joint property.

As for the person who wishes to carry out this process, the existence of common property will be terminated for him. But individual ownership will be issued. In practice, this usually applies specifically to the home.

Several situations may arise in life that force you to resort to allocating a share in kind:

1. This is often due to the need to sell or otherwise dispose of one’s part. For example, donating or adding additional space.
2. This procedure will help in the future to avoid opposition from other owners. Without the consent of the owners of common property, it will not always be possible to donate, mortgage, or simply expand the square footage of the premises.
3. There are situations when this procedure is due to the usual desire to register your individual property.
4. This will help to move away from a number of restrictions associated with joint ownership. In this way, a person can protect himself in the future.
5. Moreover, it is a good investment. When money comes in, you can build on it, thereby increasing the area. This will increase the value of the property, which, if the part is allocated, will not have to be shared with other owners.

Example from judicial practice 2021

Citizen A was married to citizen B for 12 years. During this time, the couple built a house. After the divorce, B remained living in the house, which A did not object to. She did not renounce the right to joint property, but simply went to live elsewhere.

He lived in a house with a new family and had two children. 8 years later B died. The inheritance (actually, this house) was to be divided among his new wife, mother and two sons.

However, A filed a lawsuit to restore her rights to half of the house as property acquired jointly during the marriage. The defendants (heirs B) insisted that the statute of limitations had expired, since 8 years had passed since the divorce.

The case was considered in turn in three instances. The territorial court satisfied A’s claim, the appeal sided with the defendants, and the Supreme Court, where the cassation appeal was filed, confirmed the correctness of the first instance and citizen A.

It was recognized that before the event preceding the claim (the transfer of the house by inheritance as the sole property of B), citizen A had no reason to believe that her ownership rights to half of the house, which belonged to her on the basis of joint ownership with B, were violated.

Therefore, the statute of limitations has not expired and the claim must be allowed because A did not declare her waiver of title in favor of B.

This precedent confirms the position of the Supreme Court regarding the statute of limitations regarding the division of joint property after divorce. From a legal point of view, material assets belonging to spouses in a marriage can be divided at any time.

As for the practical side of the matter, then, perhaps, it is more reasonable to deal with the division of property after a divorce in the “foreseeable future”, without postponing this issue for many years.

After separating, each spouse begins to build his own life independently. New people appear in it, new families are created. You can, of course, “get yours back” after 20 years, but then be prepared to face grueling legal proceedings and difficulties in getting your share in the house that once belonged to your family.

How the process works and what problems may arise

How to separate part of a house from common shared property? The right to allocate a part must be registered with special bodies after writing the appropriate application. Together with him, you need to submit some documentation and pay a state fee.

Registration of allocated properties occurs in the usual manner; after its completion, two certificates will be issued if such a number of owners are designated.

The registration certificate is the main document that indicates ownership of a part of the premises in kind.

This procedure can be done in two ways:

• based on the consent of all owners;
• based on a court decision.

As a result of the procedure for separating a share, it is registered

So, the legislation provides for two options for separating a share from joint ownership. When the owners have decided on the parts, they can enter into an appropriate agreement. After this, registration occurs.

No matter which of the two methods is used, they both require the presence of an expert. This specialist will offer allocation options.

All his proposals will be written down in the report. When the case comes to court, the judge takes into account the expert's opinion.

The allocation of part of the property by agreement is fixed in a special agreement, taking into account expert data. Thus, the issue of distribution of parts of ownership is resolved, as well as who owes how much and to whom during the restructuring.

On a voluntary basis, owners have the right to determine for themselves how to divide the property.

But the exception will be the rights of children under the age of majority. Here you need to obtain guardianship permission.

This authority must be sure that the child’s rights are not infringed. It doesn’t matter whether an agreement is concluded or a decision is made by a judicial organization, both options are subject to registration.

But before this procedure, it is necessary to make adjustments to the cadastral passport. Do not forget that when allocating a part of a residential building, you also need to divide the land.

Only after these actions will the corresponding reconstruction of the home ownership be carried out.

Allocation of shares through the court

If the co-owners have not come to an agreement on the terms of allocating a separate share, then court proceedings will help determine how one of them can become the individual owner of a part of the property. In this case, it is best to contact a lawyer who will draw up a claim for the court, taking into account all the important features. The lawyer and his assistants will take over the entire procedure, and the question “about allocation or allocation, which is correct?” will no longer worry the former co-owner.

What documents are required, design features

In order to allocate part of the property, its owners will need to provide technical documentation for the premises as well as papers on ownership

The law defines the main list of documentation necessary for the allocation of part of the property.

Each individual case should be considered separately and additional paperwork may be required.

However, this procedure will require the following documentation:

1. Technical passport of the premises.
2. All documentation confirming the right of ownership of real estate, including the territory of the land on which the residential building is located.

In addition, experts may request the following documents:

1. Copies of the statement of claim and documentation present during the trial. As well as the documents attached to them.
2. House book, which confirms the presence of additional residents other than the owners.

The process of allocating a share of property in kind is quite a difficult task, especially when the owners do not agree to it.

But when this procedure is justified and all documents are in order, such a step can become a solution to serious problems. In any case, this is a good investment for the future.

For more information about allocating a share in kind, see the video:

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Discussion: 4 comments

1. Vyacheslav says:
   01/02/2019 at 09:48

   Hello, I am in the process of separating, the judge told me that it is not possible to segregate, since there is no separate exit in the house, we have a house with 4 apartments. Each apartment has a separate plot of land, not yet privatized. Is it possible in court before the examination to pose the question that if I build an extension in the future, I should ask for a share to be allocated now. And can you provide links to regulations where kitchen and bathroom facilities are required?

   Answer

2. Tatyana says:

   04/27/2019 at 15:29

   We have 1/2 of a residential building on a plot of 1004 sq. m. My share after receiving the inheritance was 1/4. What is the procedure for allocating a share for subsequent sale? I have a property document. other owners, in accordance with the law, were sent postal notices of intent to sell. they refused. I posted an ad for sale. a buyer has been found and wants to alienate this share. what should be my next steps?

   Read also:  How and who can avoid paying for garbage collection in 2021

   Answer

3. Irina says:

   11/19/2019 at 20:50

   The residential building, which is in common shared ownership, was divided by court order. Both residential premises have a separate entrance. They also changed the type of permitted use of the land plot from individual housing construction to mms. And then everything stopped. The newly formed apartments in the mfts are denied cadastral registration .The court refused the application to establish a legal fact. Tell me what can be done in the current situation

   Answer

4. Ivan says:

   07/23/2020 at 00:30

   Are there any legislative acts that should help avoid this method of division in most cases, because most often they are fraught with conflict situations due to the cohabitation of several families?

   Answer

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How to divide a plot of land and a residential building

In order to make a real division of the house and land, you can go in two ways, namely:

• enter into a voluntary agreement;
• resolve this issue in court.

Of course, the voluntary method of division is simpler and cheaper for the parties, and also does not require lengthy consideration, unlike a lawsuit. Alas, it is sometimes difficult to obtain consent and cooperation from the second owner for the division of a house and land, so such disputes often lead straight to court.

Judicial practice of dividing a house when there is a child

Firstly, the presence of a minor child who lives with him gives the plaintiff the right to choose the court authority. A claim can be filed not only at the location of the house or the place of registration of the defendant, but also at your place of residence.

Secondly, judges quite often increase the share in the house for a parent of several children or one who cares for a disabled child.

ATTENTION! Any sale of real estate in which children live and are registered is possible only with the permission of the guardianship and trusteeship authorities. When parents, when dividing property, decide to sell the house and divide the money among themselves, a representative of the guardianship must be present at the court hearing. The court itself will call him. But in some cases, it is reasonable to inform the guardianship authorities in advance about the planned event, convince them that the child’s rights will be respected, and obtain permission to sell the house. It should be attached to the statement of claim, then the process will go faster.

If you still have questions regarding the division of a house after a divorce, the qualified lawyers of the Prav.io portal will be happy to answer them.