There are situations in life when parents want to determine shares in property rights for their children. This may be necessary if the real estate was acquired into joint ownership, for example, through the privatization of an apartment. To further dispose of their share, parents can distinguish their right from the property right of the child participating in the privatization.
When allocation of shares is mandatory
But cases arise when the allocation of shares will not be a right, but an obligation of the owners. This happens if money provided by the state under a maternity capital certificate was used to purchase an apartment or build a private house.
In order to improve the demographic situation and increase the birth rate, starting this year in our country the legislation regulating the procedure for providing support to families raising children has been changed. The list of persons who have been given an additional opportunity to benefit from state support, in particular maternity capital, has been expanded.
Initially, the category of citizens defined by law was supplemented by women who became mothers or adoptive parents of their first child since the beginning of 2020, and men who adopted their first child alone, if they had not previously exercised this right. A male adoptive parent will be able to receive family capital if the judicial act on adoption came into force no earlier than the beginning of the current year.
About calculations
Writing an application for the allocation of shares in an apartment is not so difficult. A sample of this document will be provided later. First you need to understand how to correctly calculate the share of each property owner.
In the case of apartments, everything is extremely simple. It will be possible to calculate how much and to whom it is due if you find out the area of the housing. But, as a rule, this instruction applies only to cases in which all owners are allocated equal parts of the property.
Let's assume that the apartment is 120 m2. She has 4 owners. Everyone is entitled to 120/4=30 m2. That's all. Basic math! Only in real life everything is much more complicated. Especially if it is indicated somewhere that one of the owners is entitled to a larger or smaller part of the property. Usually this is the situation that forces you to go to court.
Spending maternity capital
Maternity capital can be spent on improving the living conditions of a family that has received the appropriate certificate. It is allowed to partially pay with this money for the purchase or construction of residential premises, for example, an apartment, as well as to use it for independent, without the participation of specialized organizations, construction or reconstruction of a private residential building.
The law established the requirement that a parent or adoptive parent who has a certificate is obliged to register housing purchased or built with the involvement of maternal capital (or part thereof) as the property of both the recipient of the certificate and his wife (husband), and all children, determining the size their shares in the agreement. Therefore, it is necessary for all family members, especially children, to allocate shares in the ownership of a common real estate property. This rule is designed to protect the interests of the child in difficult life situations, for example, when parents divorce or die.
How to properly formalize the allocation of shares in maternity capital
The state provides families with a second child (first-born in 2020) financial support. The funds can be used to pay off mortgage debt and purchase real estate. In this case, the recipient of maternal capital must write an agreement on the allocation of shares to children , since the funds issued have a single purpose - to improve the living conditions of parents with children. If you use the money at your own discretion, then certificate holders will face certain penalties.
, material support.
What share should be allocated to children when using maternity capital?
There is no indication in Law No. 256 regarding the size of the shares of each family member. It only says that the shares are determined by agreement. Therefore, the owner has the right to determine the size of shares at his own discretion.
If the size of the shares is not specified in the agreement, then they are assumed to be equal for all family members.
The requirement is established by the Rules for sending certificate funds to MSCs or parts thereof.
6 month execution period
It is important for parents to pay attention to how exactly to allocate shares to their children, as well as when to do this. The deadline is 6 months. from the moment when the legal possibility of separation arises. For example, 6 months. from the date of termination of the mortgage encumbrance or putting the house into use (in the case of a new building).
6 month execution period.
How to register the allocation of shares
The easiest way is to formalize this agreement in simple written form. You yourself draw up a template for an agreement on the allocation of shares or download it on the Internet, sign and submit it along with the rest of the documents for registration.
But there's a catch. If you are allocating a share to children, you can use a simple written form. If you also allocate a share to your wife, this is considered a division of joint property between the spouses and a notary is required. That is, you need to go to a notary, who will draw up an agreement on the allocation of shares. The cost of registration depends on the region. In St. Petersburg, for example, it costs approximately 5 thousand rubles; in other regions they charge 5,500 rubles for paperwork and 0.5% of the cadastral value of the apartment.
But you can save money on a notary. To do this, you need to indicate in the agreement that you allocate shares to the children, and the remaining part of the apartment becomes your joint property. You do not allocate a separate share to her in the agreement. In this case, a notary is not required.
In our example with an apartment of 45 sq. It will look like this: the children’s shares are 2/45 each, and you and your spouse will have 41/45 in joint ownership.
In our example with an apartment of 45 sq.
Nuances
When isolating children's shares, there are a number of nuances:
- In cases where minors do not yet have a passport (under 14 years of age), an application for a transaction is submitted by their legal representatives (parents or guardians). In this case, the presence of children is not necessary; the documents you will need are the original and a photocopy of the birth certificate.
- If the minor is already 14 years old, he participates in the transaction independently. But the permission of the parents, as well as their presence when signing the document, is required.
- When selling a residential property in which there is a children's part, the parents must draw up an undertaking that a similar share will be allocated to their son or daughter in the new apartment. At the same time, the purchase and sale agreement for a new residential premises must specify the proportions of the parts of the property of each future co-owner of the housing.
- In the event of an official divorce of parents, as well as in the event that they live in a civil marriage, when purchasing residential premises using MS, no property in the residential premises is allocated to the spouse.
Document preparation methods
Civil law distinguishes between two types of common property: shared and joint. As a general rule, unless specifically established by law, common property is considered shared. In the case under consideration, the common property of the spouses, if their shares have not been determined in advance, will be joint.
At the notary
The most convenient and reliable way to allocate shares is to contact a notary, who will not only provide qualified advice, competently draw up an agreement, but also send the necessary documents for registration after they are signed. This win-win option has only one drawback - the cost of notary services.
Often, notarization of a document defining shares for family members is provided for by law. If, in the process of allocating shares to children, the regime of the common joint property of the parents changes, the agreement must be drawn up by a notary, since it contains conditions for the division of the joint property of the spouses. Mandatory notarization is also relevant when children's shares in the right are allocated to real estate that was originally in the common shared ownership of the spouses.
From lawyers
It is possible to conclude an agreement without the participation of a notary only if, despite the allocation of children's shares, the parents' ownership remains joint.
When owners do not want to dive into the intricacies of paperwork, experienced lawyers will help you select the necessary documents and draw up an agreement, but for a fee.
On one's own
Those who want to save on legal services have the right to try their hand at drawing up an agreement on their own. You don't have to be a lawyer to do this. Having the necessary documents at hand, filling out a standard agreement form is not difficult if you correctly indicate all the required data. The owner himself will also have to prepare and submit documents for registration, but this should not be intimidating, because this procedure is quite simple and understandable.
How to file a claim for allocation of a share in an apartment
Art. 131 of the Code of Civil Procedure of the Russian Federation regulates the rules for drawing up statements of claim. When filing a claim, you must indicate:
- information about the court in which the case will be heard;
- information (full name, address, contact telephone number) about all participants in the process: plaintiff - an interested person who wants to allocate his share;
- the defendant is a co-owner (co-owners) of the property;
- cadastral data for the apartment;
- payment of compensation for the cost of the share;
When drawing up a claim, it is necessary to pay attention to all the details that are relevant to the case. But there is no need to describe the situation in too much detail and indicate circumstances that do not affect the legal relationship of the co-owners.
Emotional descriptions, spelling and punctuation errors, abusive expressions, and subjective assessment of the situation should be avoided.
You can get a clear idea of the form and content of the claim using the sample below.
What to write
The preamble to the agreement indicates the passport details of all its participants; for young children under 14 years of age, birth certificate data must be entered.
On behalf of young children in transactions, their legal representatives - mother, father or adoptive parents and guardians - act.
Teenagers from 14 to 18 years old sign the agreement in their own hand with the written consent of their parents or other representatives determined by law.
The agreement provides a description of the property, its exact address, total area, cadastral number. Information is entered about the owner or owners of the property and the documents on the basis of which the property belongs to them. It is further indicated that the residential premises were purchased or built (reconstructed) using maternity capital funds, information about the owner of the certificate and his details is provided.
Next, you will need to describe how shares in property rights will be distributed among all family members.
Despite the fact that the law does not require equal shares of all family members in the right to housing, do not forget that each child and parents have equal rights in relation to the money allocated under the maternity capital certificate.
If family members cannot voluntarily agree on the size of shares in the right to real estate, they must go to court to resolve this issue. When making a decision on determining the shares, the court will take into account what contribution was made by the husband and wife for the purchase of a home or its reconstruction.
About the peace agreement
Suppose that citizens decide to allocate shares in an apartment that is in shared ownership. In this case, as we have already said, you will have to come to the notary with an agreement and sign it. Otherwise, you need to go to court for help.
The algorithm of actions for a peace agreement will be as follows:
- Prepare a package of documents necessary for concluding an agreement.
- Write an agreement on the allocation of shares in housing. A detailed description of what will be transferred to the ownership of each apartment owner is required.
- Pay for notary services if necessary.
- Sign the contract.
- Go to Rosreestr and register property rights (make changes to the cadastral database).
It would seem that there is nothing difficult. Indeed, this arrangement causes the least amount of trouble. But peacefully allocating a share in housing is problematic. People simply cannot agree among themselves.
Documentation
What papers will be useful to accomplish the task? Their list depends on the method of obtaining property ownership.
The following documents are most often required to allocate a share in an apartment:
- passports of the parties;
- claim/contract;
- certificates of ownership;
- extracts from the Unified State Register of Real Estate.
Also sometimes required:
- contract of sale;
- statements about the owners' investments in the apartment when purchasing it.
This is the minimum list of requested documents. Allocation of shares in an apartment using maternity capital or, for example, a mortgage requires more documents. Especially when going to court.
Sample
A sample application for the allocation of a share in an apartment has already been provided to us. It is impossible to say with certainty that the proposed templates are exhaustive.
The point is that each case is individual, and therefore both the peace agreement and the statement of claim will always be different. This fact will have to be taken into account. But the studied templates allow you to understand the basic principles of creating documents.
