Sale of a share in non-residential premises

• home
• Real estate

The increase in the number of transactions related to the purchase or sale of real estate (apartments, rooms) that are in common shared ownership is based on the price factor of the cost per square meter.
The price per square meter in a separate apartment is significantly higher than the similar cost in the share of housing. This is due to the fact that transactions are carried out not with a specific, actually fixed area of ​​​​residential premises, but with the right of ownership of a certain part of the real estate, which is in common shared ownership. Any real estate owned by two or more persons is treated as common property. The Civil Code of the Russian Federation regulates two types of common property, common joint and common shared, which also apply to residential real estate. A common share may arise in a situation where the owners of shares of residential space do not have related or joint economic relations with each other. General joint, most often is a consequence of the purchase of a room, apartment, house by married couples.

Features of the purchase and sale transaction of common joint property

The rules of the law also apply to real estate transactions related to the purchase of housing and registration of property rights by married spouses, or until the official registration of the marriage (in the case of concluding a “nuptial agreement”, Article 41 of the Family Code). According to Art. 256 of the Civil Code, jointly acquired property acquired during family life refers to common joint property. Both spouses and their children who have reached the age of majority have the right of ownership and the right to dispose of this property. The legal features of the property division procedure must be taken into account when purchasing an apartment. The best option for those who initially try to anticipate possible negative situations associated with divorce is to purchase an apartment in shared ownership.

This provides the following advantages:

• ownership rights are assigned to each owner whose share is indicated in the agreement;
• any transaction cannot be recognized as valid without the consent of all shareholders.

An additional guarantee of a fair court decision on the division of property is a marriage contract (agreement) regulating property and financial relations.

The agreement certified by a notary comes into force after the registration of the marriage contract. In relation to housing (apartment, house), the marriage contract secures the actual ownership of the agreed share for each party to the contract.

The marriage agreement guarantees:

• Impossibility of limiting the rights of the parties;
• Compliance with rights and obligations regarding children.

Shared ownership of an apartment: concept, design, features, pros and cons

Concept Design Features Legislative framework Possible problems What transactions with an apartment are prohibited in shared ownership Pros and cons

In accordance with the Civil Code of the Russian Federation, individuals, after the official registration of marriage, have the right to take possession of property, which is difficult to divide into several parts without changing its purpose or by force of law. Therefore, current legislation provides this opportunity only in the case of:

privatization of an apartment where several people live, when creating a farm, the presence of several owners, etc.

Such ownership can be joint, when the shares of ownership of the property have not been determined in advance, or shared, which is characterized by the allocation of a certain share. This also applies to real estate such as a house or apartment.

The concept of shared ownership

Once the ownership shares between several owners have been determined in advance, the apartment becomes shared ownership. From this moment on, its disposal is possible only with the consent of all owners. The size of their share will not matter. If several people live in one apartment, then actually dividing its area strictly on the basis of documents is very problematic, and even impossible. If co-owners try to agree on a fair division of living space, then no problems arise in the process of owning shared ownership of an apartment. If there is no agreement, the issue can only be resolved in court. If there is a need to change the order of ownership and use after the birth of a child or due to other circumstances, the court has the right to review the previously made decision.

Registration of shared ownership

To complete a transaction for the acquisition of shared real estate, you must go through several stages.

First, you need to prepare title documents, thanks to which individuals will have the right to dispose and own real estate. This is a gift agreement, sale and purchase agreement, will or a judicial decision. They must contain information about the shared form of ownership and about all owners of the property.

At the second stage, the agreement itself is drawn up, which is then signed by the parties. It determines the size of the parts belonging to each of the owners. If there is no such data, then the shares of the parties will be considered equal.

At the last stage, documents are submitted to the Rosreestr branch at the location of the apartment. After checking for legality, an employee of Rosreestr registers them and issues a certificate of ownership to each of the home owners.

Features of registering a share in an apartment

Shared ownership of an apartment is determined if the following documents are available:

voluntary agreement on division, certificate of inheritance, marriage certificate or marriage contract - if available, court order,

In addition to the title documents, it is necessary to prepare a technical passport with an explanation and a plan of the apartment, as well as a receipt for payment of the state duty according to the details specified in the local office of Rosreestr. After this, all documents along with passports are submitted to the registration authority.

It can be done:

at the MFC, through the Gosuslugi portal, through the cadastral chamber, by sending a request to Rosreestr.

If the basis for executing such a transaction is the sale of one’s share, one should remember the pre-emptive right of all co-owners to redeem it. They must be notified of the planned sale no later than 1 month before the start of the transaction.

The legislative framework

Shared ownership of an apartment is regulated by Art. 245 of the Civil Code of the Russian Federation, which talks about equality of shares if the parties do not determine their size. When the condition of the property improves, the size of the share may increase in accordance with Art. 246 of the Civil Code of the Russian Federation in proportion to the investments of the owners. The right to dispose of property with the consent of all owners is provided for in Art. 247 Civil Code of the Russian Federation. If the shareholder cannot receive his share, then, in accordance with Art. 248 of the Civil Code of the Russian Federation, has the right to expect compensation.

Everything that the owner can receive from the exploitation of shared ownership (income, fruits) must be divided in accordance with Art. 249 of the Civil Code of the Russian Federation between all owners in proportion to their shares, unless otherwise provided by the agreement.

All costs for the maintenance of common shared property are also divided between the co-owners, taking into account their shares, as provided for in Art. 250 Civil Code of the Russian Federation.

Article 251 of the Civil Code of the Russian Federation emphasizes the preemptive right of co-owners to purchase the share of another owner if it is not sold through public auction. In the event of a sale, the share becomes property in accordance with art. 252 of the Civil Code of the Russian Federation from the date of conclusion of the contract, unless other conditions are reflected in it. When one of the owners is unable to repay the resulting debt with his property, the creditor can go to court. And then the share can be allocated in kind, sold to other owners or at public auction, and the money will be returned to the creditor.

Possible problems

If spouses purchased an apartment as shared ownership, then after a divorce one of them can offer the second housing at a market value slightly higher than the price of his share. But this option does not always work. The section can help on a voluntary basis. Otherwise, the interested party needs to file a lawsuit in court to force the sale of the share of one of the spouses.

It happens that one of the spouses takes out a mortgage before marriage, which the spouses then repay jointly. Then, after a divorce, the borrower may refuse to re-register the share. And when the marriage contract has not been signed, the party that claims to own part of the share has the right to seek its allocation by filing a statement of claim with the court at the location of the apartment.

What transactions with an apartment are prohibited in case of shared ownership?

The legislation provides for cases when transactions in relation to an apartment with shared ownership are completely prohibited. The Civil Code, for example, allows the assignment of the right to a share of property to a third party (assignment). And the founders of the LLC can use this right by alienating their share to another participant. However, concluding an assignment agreement when alienating one’s share in an apartment is prohibited by law.

The only case when a share can be sold without respecting the pre-emptive right is when it is sold at public auction.

Creditors have the right to do this when the debtor’s other property and money are not enough to repay the debt. But even in this case, not every share in the apartment can be sold to pay off the debt, since, as a general rule, it is not allowed to confiscate premises that are the only residence for debts.

The law provides for only two cases when such collection is permitted:

the property is collateral under a mortgage agreement, when it is allowed to take away even the only housing, the debtor who owns the share officially has other housing or does not live in the apartment and is permanently registered at a different address on the basis of a social tenancy agreement. Advantages and disadvantages

The main disadvantage of shared ownership is the obligation to coordinate the alienation of the share with other owners. Selling a share of ownership is not popular in the real estate market either.

Its advantage is the opportunity for several individuals to have their own share.

In addition to selling the share to third parties, it can be used as an independent object of collateral in the process of drawing up loan agreements for funds in a credit institution.

Experienced lawyers from our company will help you understand the nuances of acquiring and alienating a share in a jointly owned apartment. By calling the telephone numbers listed on our website or through an online application, you can receive qualified advice and resolve the issue in strict accordance with the law.

Nuances of making a purchase without a prenuptial agreement

The current regulations do not provide for the mandatory conclusion of a marriage contract (agreement) for the purchase or preparation of documents when purchasing an apartment (house) in shared ownership. Law 218-F3, which has come into force, does not make changes to the purchase procedure. The changes affected the registration of rights to real estate. Confirmation of the legality of property rights is an extract from the Unified State Real Estate Cadastre (USRN), where transactions with real estate are registered.

The list of required documents remains the same and a marriage contract is not mandatory. It only serves as additional insurance in case of divorce and the emergence of property disagreements on the division of an apartment and other property on this basis. In the absence of an agreement, all property in common shared ownership, including apartments, is divided equally between all owners.

Acquisition of real estate in common shared ownership

Rosreestr, in its explanations, has repeatedly indicated that a paid acquisition agreement at the expense of the common income of the spouses can be considered as an agreement containing elements of a marriage agreement (and, accordingly, it must be concluded in notarial form), if the parties to the agreement indicated that this agreement was concluded in including in accordance with the norms of the Family Code of the Russian Federation, in particular, its articles 41, 42, it clearly expresses the will of the spouses to change the regime of joint ownership established by law, defines the procedure for the use of property in shared ownership and its division in the event of divorce .

It should be noted that this issue is not problematic if each of the spouses separately acquires in their own name a share in the right to the same property at different periods of time, both shares will also be in the common joint ownership of the spouses.

At the same time, if shares in the right are acquired by spouses at the same time, there is no unambiguous interpretation of the legal position by the Territorial Directorates of Rosreestr in different regions.

So, is it possible for spouses to acquire a property in common shared ownership under a real estate purchase and sale agreement concluded in simple written form, at the expense of the spouses’ common income, if they state in the text of the obligation that each of the acquired shares in the right also falls under regime of common joint property of spouses in accordance with the Family Law of the Russian Federation.

In accordance with Art. 244 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), property owned by two or more persons belongs to them under the right of common ownership.

In addition, property can be in common ownership with the determination of the share of each owner in the right of ownership (common ownership) or without determining such shares (joint ownership).

does not imply the formation of both joint and shared ownership of the property.

According to Art. 128 of the Civil Code also includes objects of civil rights, including cash and documented securities, other property, including non-cash funds, uncertificated securities, and property rights.

By virtue of Article 256 of the Civil Code, property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property; the rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law.

At the same time, according to Article 33 of the Family Code of the Russian Federation (hereinafter referred to as the FC), the legal regime for the property of spouses is the regime for their joint ownership; The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.

Property acquired by spouses during marriage is their joint property; The common property of the spouses also includes real estate acquired at the expense of the common income of the spouses and any other property acquired by the spouses during the marriage, regardless of which of the spouses it was acquired in the name of or in the name of which or which of the spouses contributed funds (Article 34 of the Family Code) .

Clause 90.1 of the Procedure for maintaining the Unified State Register of Real Estate, approved by Order of the Ministry of Economic Development of Russia dated December 16, 2015 No. 943, stipulates that upon state registration of a share in the right of common shared property coming into the joint ownership of spouses:

— information about both spouses is indicated in one record of property rights;

- in relation to the type of right, the words “common shared ownership” are indicated in the record of right;

— after indicating in the entry on the property right the size of the share in the right of common shared ownership, the words “in joint ownership” are indicated.

By virtue of the provisions of Article 41, the spouses have the right to change the statutory regime of joint ownership by a marriage contract, which is concluded in writing and subject to notarization.

The appeal concerns the acquisition by spouses of a property by purchasing shares in the right to it, when, in accordance with the agreement, they indicate that they are acquiring shares in joint ownership.

As a general rule, if the owner transfers a real estate object to several persons simultaneously on the basis of a transaction, such acquirers acquire the right of common shared ownership of this object, unless the law provides for the possibility of forming common joint ownership of it.

When the right holder alienates a property owned by him (as a whole) into the ownership of the spouses, the latter acquire the right of joint ownership of the property, unless otherwise established by agreement between them; the right of common shared ownership of a property acquired by spouses can arise only if the legal regime of the property of the spouses is changed by them by concluding a marriage contract, including the terms of the marriage contract will be contained directly in the contract of sale and purchase of the property, in connection with which, it will be subject to notarization.

Based on the foregoing, we can conclude that spouses, acquiring a property as shared ownership, enter into an agreement containing elements of a marriage contract, since it expresses the will of the spouses to change the regime of joint ownership established by law, and therefore, this agreement is subject to notarized certification.

Property tax deductions

Purchasing apartments in shared ownership allows you to take advantage of the opportunity to receive the maximum amount of return from the personal income tax paid. Current legislation provides for a maximum refund amount of 260 thousand rubles (13% of 2,000,000,000). Changes made in 2020 allow for the possibility of obtaining tax deductions for transactions (purchase) with several objects.

Refund restrictions arise under the following circumstances:

• Availability of Russian citizenship;
• Availability of official income;
• To purchase an apartment (house), funds provided by the state (subsidies) are used;
• An apartment (house) is purchased from close relatives or dependent persons (guardians).

The sale of an apartment in common shared ownership or a separate share is also subject to the law on obtaining the right to tax deductions. The provisions are regulated by the Tax Code of the Russian Federation and the resolution of the Constitutional Court, No. 5-P, dated March 13, 2008.

The main stages of the process of selling an apartment (share)

The main difficulty of the sales process is the number of documents required when registering transactions with the shared sale of real estate, and the number of regulations and resolutions that must be followed. When deciding to sell, you should first consider the following points:

• Any transactions must be made exclusively with the consent of all co-owners. This may be an oral agreement with all owners, but with the mandatory participation of all participants on the part of the seller when notarizing the transaction.
• The pre-emptive right to purchase is granted to co-owners of shared ownership. In order to maintain the legality of the sale process, the purchase offer, with the obligatory indication of the main conditions, is sent to all owners in writing, with mandatory confirmation of delivery of the notice. The offer is valid for one calendar month.
• Determination of real commercial value. It is hardly possible to independently assess the market value. For this purpose, there are independent appraisers, whose task is to prepare an expert opinion, taking into account all the components that influence pricing.
• Search for buyers. The search can be carried out independently or with the assistance of a real estate agency. In the latter option, it must be remembered that until the expiration of the contract with a specific agency, the seller does not have the right to enter into an agreement with other agencies.
• Collection and preparation of documents. The most optimal option for preparing the necessary documentation (extracts from the BTI, Unified State Register of Real Estate, EIRC, confirmation of ownership rights) is to entrust it to a real estate agency, on the basis of a notarized power of attorney. This will speed up the time frame for collecting documents and avoid possible disagreements with current regulations.
• Signing of the sales agreement by the parties involved. The signing of the agreement must be carried out in a notary's office. The agreement must represent one document for a specific object, with the mandatory presence of all co-owners of shared ownership.
• Transfer of completed documents, certified by a notary, to the Unified State Register of Real Estate. According to established standards, the registration period should not exceed 18 days, after which confirmation of the transfer of ownership from the seller to the buyer is issued.

What to consider when buying an apartment (share)

The main difficulties in the purchase process lie in the need for the buyer to monitor compliance with legal standards when reviewing the documents provided. Deviation or disregard by the seller of established standards, such as:

• violation of the pre-emptive right during purchase;
• failure to comply with the established terms of the pre-emptive right;
• lack of notarized consent of other owners.

A transaction made with such violations will be declared invalid. Personally participate in the process of signing the contract.

The transfer of funds should be carried out only after receiving confirmation of the transfer of ownership and an extract from Rosreestr on the granting of ownership of the object of the transaction. The entire process of selling or purchasing an apartment in shared ownership must be provided with qualified legal support.

What documents are required for registration?

The transfer of ownership of a property is registered in Rosreestr or MFC. If we are talking about selling a share, then in addition to the contract you will need:

• certificate of ownership of the share or an extract from the Unified State Register (based on Law No. 218-FZ, from 2020, an extract from the Unified State Register/GKN is replaced by an extract from the Unified State Register of Real Estate);
• previous title document (sale agreement, donation agreement, etc.);
• cadastral passport or extract (based on Law No. 218-FZ, information from the cadastral passport of the object is in the Unified State Register of Real Estate extract on the main characteristics and rights);
• consent of the co-owners to sell the share if the agreement is not concluded with them. The agreement is drawn up through a notary.
• consent of the spouse to the alienation of the object if it was acquired under a commercial transaction during the marriage. Such a document is also drawn up through a notary; a simple written form will not be enough;
• a receipt confirming that the fee has been paid. Please note that the payment details will differ depending on which body the parties apply to - Rosreestr or MFC. This should be clarified in advance;
• power of attorney if the transaction is registered through a representative;
• a document confirming the consent of the guardianship authority to the alienation if the object belongs to a minor or incapacitated person.

You also need to prepare documents that will confirm the identity of each participant in the contractual relationship.

The agreement is drawn up by a number of parties, including Rosreestr. One copy will be kept in his archive.