Allocation of the marital share in joint property: Instructions + Video

Property acquired during marriage belongs to the spouses on an equal basis.
Real estate is jointly owned, that is, both husband and wife have equal rights to its ownership and use. During their married life, they can freely use it on a general basis, but in some situations it may be necessary for one of the spouses to dispose of their share at their own discretion. To do this, his share must be legally separated from the common property. Similar situations may arise during a divorce, if you need to bequeath or donate your share to another person. In this case, allocating a share in kind will not be enough. Such a solution to the issue is only possible when owning real estate in shared ownership.

In case of joint ownership, a marriage contract or an agreement on the division of property is required. Next, we will understand the specifics of allocating a share in real estate for spouses, and how to do this according to the law.

Regulatory and legal basis of the issue

Relations between spouses, including material and legal ones, are regulated by the Civil Code of the Russian Federation and the Family Code of the Russian Federation.

Based on Article 256 of the Civil Code of the Russian Federation, common property is the property of a husband and wife that was acquired during the period from the moment of marriage registration until the moment of its official dissolution.

Article 1150 of the Civil Code of the Russian Federation establishes equal shares in the jointly acquired property of spouses.

In addition to jointly acquired property, the Family Code in Article 36 also identifies personal property, which spouses can use on an equal basis, but only one of the spouses who owns the property can dispose of it.

Personal property includes:

• Property acquired before marriage, received by inheritance or as a gift,
• Privatized real estate and land plots, if the second spouse did not participate in the privatization process,
• Personal items, with the exception of precious stones and metal.

There are situations when personal property can become common property. For example, if one of the spouses was given an apartment as a gift, and repairs and reconstruction of the housing were carried out using money from the family budget.

Separately, it is worth noting that property acquired in a civil marriage does not belong to the category of jointly acquired property.

Composition of common property and how to calculate the spouse’s share from it

According to existing legislation, husband and wife have equal rights to real estate acquired during marriage. When dividing marital property, the home must be divided in half.

Attention! The court may leave more property to the person with whom the common child remains to live, deviating from the principle of equality.

Each spouse can offer the other spouse to buy the other half of the house. If the parties do not come to an agreement, the apartment or house may be:

• sold to other owners with subsequent division of the proceeds;
• exchanged for two separate housing;
• remain in further joint ownership, but with the definition of shares.

A change in share may occur due to legally significant events:

• inheritance by a married couple or one of the spouses of parts of the home that belonged to deceased owners;
• donations;
• share purchases.

For example, if, when purchasing a house, shared ownership was registered between a married couple and their relative, in the event of his death, the share goes to the spouse with whom he was related by blood. After inheritance, the new owner has rights to most of the home ownership.

Grounds for allocating shares in joint property

The peculiarity of this procedure is that it is not possible to legally separate the shares of spouses from joint real estate; it is only possible to divide the apartment into parts. The difference between “allocation of a share” and “division into shares” is that in the first case, common property is preserved, and in the second case, everyone receives a part of the real estate and the spouses become the sole or shared owners of their shares.

It is possible to allocate shares in the common property at the initiative of one of the spouses. The grounds for allocating a share may be:

• Divorce,
• Opening a case regarding inheritance and will of a share in jointly acquired property,
• Property disputes during marriage,
• Having debts on a mortgage or other financial obligations.

The division of property can occur peacefully - by concluding an agreement or marriage contract, or in court.

How to allocate a share in a joint apartment during marriage?

In practice, there are three main ways to allocate a share in a spouse’s real estate.

Allocation of shares at the request of the creditor

Creditors have the right to apply to the court for the allocation of the marital share in two cases:

1. When collecting a debt in enforcement proceedings, when other property is not enough to fulfill the obligation.
2. In case of bankruptcy, but with some peculiarities.

In the first case, a claim can be filed either by the debtor himself or by the FSSP employee who is conducting enforcement proceedings. Allocation is allowed only when there is evidence that other property is insufficient to cover debts. A bailiff's conclusion and his indication of the impossibility of execution in any other way are necessary.

The procedure is carried out in court. The interested party files a claim, which must indicate:

• the name of the court that will hear the case, as well as the details of the applicant, defendant and third parties, if any;
• the cost of the claim and the amount of the state duty. The price is calculated based on the cost of the allocated part of the disputed objects. You can use both market value and, for example, cadastral value.
• title of the statement. Indicated after the details of the parties, in the center;
• general information: about the occurrence of a debt, the initiation of enforcement proceedings, the absence of other property to repay the debt;
• links to legal acts and evidence of your position. You can also refer to judicial practice, although it will not be binding (but courts are often guided by it when making decisions);
• additional information relevant to the case;
• list of applications.

Legal assistance in preparing a statement of claim >>

Within the framework of bankruptcy, the issue of allocating a share will not be considered in the arbitration court. But creditors can present such a claim to a court of general jurisdiction and then refer to the decision.

Read: Foreclosing on the debtor’s property held by third parties

Arbitrage practice

As already mentioned, most often the court decides to divide the property into equal parts.

A decrease in the spouse’s share can occur in several cases, which can be used by the plaintiff as aggravating the situation:

• Inappropriate use of family budget funds - gambling, drugs, alcohol, expensive trips and traveling without family,
• Lack of sources of income without good reason,
• Minor children who remain with one of the parties,
• Refusal to participate in the acquisition of property during marriage.

Share size

Similar to the division procedure provided for in Article 39 of the RF IC, when allocating a marital share after a divorce, the court may deviate from the principles of equality if the interested party provides evidence regarding:

• lack of income and refusal to run a household and participate in raising children without good reason;
• leading an antisocial lifestyle, alcohol and drug abuse, gambling;
• a dependent position in relation to the spouse and spending spontaneously arising income on satisfying one’s own interests that are not related to the needs of the family.

The presence of children does not directly affect the size of the allocation of the marital share, but during the trial the court takes into account the determination of the place of residence of minors and may deviate from the principles of equality established by law.

Allocation of spousal share during inheritance

The testator has the right to independently dispose of his property by writing a will, including depriving the heirs of their share, even if they have the legal right to inherit. But the heir, on the basis of Article 1149 of the Civil Code of the Russian Federation, can restore his rights to compulsory inheritance.

This possibility is provided by law in the following cases:

• The heir is deprived of inheritance,
• The property of the testator is bequeathed to other persons,
• The property due to him under the will turns out to be less than the legally prescribed share.

In such cases, the right to an obligatory share of inheritance can be exercised against the will of the testator, regardless of the will of the other heirs.

When inheriting a spouse's share, it is determined and designated by a notary and recorded in the inheritance certificate. The heirs are required to contact the notary with a corresponding application before this moment.

Basic information

The allocation of a share in kind secures the rights of a person to dispose of part of the housing. The room becomes independent from the rest of the apartment.

Typically the shares are allocated:

• for sale;
• in case of divorce;
• in disputes and conflict situations with other homeowners;
• if you wish, dispose of your share at your personal discretion, without obtaining permission from other owners to conduct transactions.

However, there are circumstances in which the allocation of a share is prohibited.

• Allocating a share in kind will lead to the fact that common areas will become difficult to access for others, and there will be a risk of violating the integrity of load-bearing structures. If after the redevelopment the residents will not be able to use the bathroom or kitchen, then such work is prohibited.
• The allocation of a share violates the rights and interests of people with disabilities, dependents or organizations (for example, banks).
• The rooms received cannot be used for living.

The principle of inheriting the share of a deceased spouse

The deceased spouse's share in real estate is inherited on the basis that during his lifetime he owns half of the property, which falls into the acquired inheritance estate. After receiving documentary evidence that the property was acquired during the marriage, the notary determines the share of the second spouse, and the remaining property will be distributed among all heirs.

Documents for registration of inheritance rights:

• The applicant's general passport,
• Death certificate of the testator,
• A document confirming the marriage relationship,
• Technical passport for real estate purchased in a barque,
• If available, a copy of the marriage contract,
• If there are children, permission from the guardianship authorities.

With this package of documents, you must contact a notary to submit an application for the allocation of the required share in the inherited property.

Obtaining a certificate of inheritance at notary rates will cost about 200 rubles. After receiving the document, you must go through the procedure for re-registration of property rights at the Rosreestr branch. The registration procedure was described above.

As you can see, the process of allocating a marital share from jointly acquired property can be called a simple procedure only if there is a marriage contract between the spouses, which spells out in detail the procedure for allocating shares and their ratio. In other cases, careful study of the issue or legal advice is required.

Step-by-step instruction

Allocating a share in an apartment consists of the following steps.

Select a share allocation method

There are 2 ways to allocate a share.

Actually

Allocation of a share in kind involves the creation of a separate room or several rooms. The size of these premises must correspond to the value of the owner's share.

The minimum size of the total area is from 28 m2. For this reason, it is often not possible to allocate a share in kind in city apartments.

If illegal redevelopment was carried out in the apartment in the past, then first of all it will be necessary to return the housing to its original condition. After this, the division of property can be carried out.

How to independently legitimize redevelopment

Through payment of money

If the allocation of a share in kind is not permissible, then it is allocated in financial equivalent.

If the registered share exceeds the shares of other owners, then the person will need to pay extra for part of the share. If it’s less, they pay him extra.

Another option is financial compensation: a person gives up his part of the property, receiving money from the remaining owners. The received share is distributed among the owners.

If the size of the share is small and its owner is indifferent to the allocation, then the owners will need to go to court. He will establish compensation without taking into account this owner.

Try to negotiate the allocation of a share on your own

When carrying out the procedure voluntarily, the owners independently decide who will receive what share. Shares may be unequal - at the discretion of the owners. The parties draw up a written agreement and have it certified by an employee of a notary agency. The main thing is that all owners agree to this step.

Contact an expert to receive an assessment report

The report contains the following information:

• the opportunity to register a share in kind;
• probable modes of isolation;
• number of shares, their ratio to the total area of ​​housing in percentage and meters;
• degree of deterioration of premises;
• market value of housing;
• amount of share allocation.

File a claim in court and prepare documents

If it was not possible to reach an agreement peacefully, as a result of which it was necessary to go to court, then the housing will be divided into equal-sized ones. So, if there are 2 owners of an apartment, then the housing will be divided into ½.

The claim must include the following information:

• name of the court;
• information about the plaintiff and defendant: full name without abbreviations, address;
• cost of claim (cost of share in rubles);
• description of the current circumstances: who is the participant in the common shared ownership, address of the property, size of the share, details of the title documentation;
• grounds for dividing the share;
• proposal for dividing a share - an indication of an isolated premises, the procedure for separating it from common property;
• please allocate a share in kind;
• list of attached documents;
• date of filing the claim, signature of the applicant.

The claim can be found at this link.

Requested documents include the following:

• passports;
• birth certificates of children;
• technical documentation for the apartment;
• certificate from the Unified State Register of Real Estate and title documentation for housing (for example, a purchase and sale agreement);
• assessment of housing in the BTI, act of allocating shares in kind, if any;
• amount of compensation for allotment of share.

The cost of the state duty depends on the cadastral value of the share being formed.

How to order an extract from the Unified State Register of Real Estate through the State Services portal

Conduct a transaction with shares

The following transactions can be carried out with the received share without the permission of the remaining homeowners.

Sale

Usually shares are issued precisely for this purpose. In accordance with the Civil Code of the Russian Federation, first of all, the seller must offer to buy out the share to the remaining owners, since they have the right of pre-emptive acquisition. The price of the offer must be the same as in the advertisement for sale.

If within 1 month no one has expressed a desire to buy a share, then the owners will need to issue a written refusal. After this, the share is allowed to be sold on a general basis.

A common problem is the absence of other owners in the apartment (for example, they live in other cities or even countries). In order to comply with the requirement to notify owners, it is necessary to send them a notification at their last known place of residence by registered mail with a list of attachments and notification of delivery.

If in the future you have to go to court, then such documents are provided as evidence of the fact that the seller has taken all measures to notify the owners.

Rent

In common shared ownership, if you want to rent out a share, you must obtain written permission from all property owners. If they refuse, the owner must go to court and prove the fact that the rights of other owners are not violated, but at the same time they refuse to issue a rental permit.

Donation

The allocated share can be gifted either to a relative or to a third party. The procedure does not imply that the owner receives a monetary reward - otherwise the transaction will be considered a sham.