Division of a one-room apartment during divorce 2020

Owner's rights

The procedure for determining shared ownership is regulated by the Civil Code of the Russian Federation and a number of other legislative acts.

The main nuances of allocating a share in accordance with the Civil Code of the Russian Federation:

Each participant in shared ownership has the right to allocate a share from the common property.
Property in shared ownership can be divided by voluntary agreement.
The agreement may be changed in the future with the consent of all shareholders.
If such an agreement has not been reached, the participant has the right to demand the implementation of his property rights in court.
One of the owners has the right to receive monetary compensation from other participants if it is not possible to allocate a share in kind due to damage to other participants or due to a legal prohibition.
Monetary compensation is possible only with the consent of the participant, with the exception of certain cases.
The owner has the right to monetary compensation for the disproportionality of the allocated property.
The shares of participants are recognized as equal, unless otherwise provided by law.
A share in kind is allocated only if technically possible.

Divide joint property into shares

Documents required for division of shares:

title document on joint ownership;
copies of passports of citizens whose property is subject to division;
birth certificates of children under 14 years of age;
other documents according to the situation, which the lawyer will talk about at the reception (marriage certificate, house register, registration certificate, certificates of management companies about the absence of debts, consent of the guardianship and trusteeship authorities, PND certificates, etc.) Not all of them are needed and not always!

Option 1. Division of shares by agreement (if everyone agrees)

With the consent of all co-owners, a contract or agreement is drawn up, which determines the shares in the property, which according to the documents is joint.
When drawing up documents and further registration of rights to real estate, it is important to take into account how such joint ownership appeared:

under a privatization agreement (agreement on the transfer of an apartment into the common joint ownership of citizens);
as property of spouses acquired during marriage;
for other reasons.

The division document (contract or agreement) may be similar in meaning, but also has differences. But the composition of the package of documents submitted to Rosreestr will make a sharply fundamental difference. In order not to waste time on suspensions and refusals of registration, contact our organization to draw up the correct packages of documents. The service is cheap, and the result is fast and good!

Option 2. Division of shares in court

This option applies in the following cases:

when the co-owners failed to reach an agreement on the division;
if someone evades the division of shares;
in the absence of a participant in joint ownership;
if one of the citizens is unable to participate in court due to health reasons or other reasons;
when the location of a citizen is unknown.

This is a claim procedure. The application must be drawn up in such a way that your claim is not denied. The rule should be remembered that if the court has rejected the claim, it cannot be filed a second time for the same reasons. Therefore, it is important to do everything right the first time.

The received court decision on the division of joint property into shares, if these are apartments, dachas, land plots and other real estate objects, must be registered in Rosreestr.

Option 3. At a notary after the death of one of the participants in joint ownership

There are cases when the consent of the second participant in joint ownership is not required, and legally the notary prepares documents on the shared ownership of the surviving citizen.

Is it necessary to divide into shares at all?

If you want to sell, donate or otherwise dispose of your share of property (transfer by inheritance, make a will), such a division is necessary in most cases (although there are exceptions, you can do it differently).

For tax purposes, sometimes the joint ownership regime is more favorable. It is better to consult our specialists.

Deadlines

We draw up draft contracts and agreements on the division of shares in joint property within a few hours, depending on the complexity of the documents.

Distant work

We can work online. After a series of preparatory work, it is necessary to sign with a notary or issue a power of attorney for such actions. In the future - registration in Rosreestr.

Collection of necessary documents

We can resolve issues on a turnkey basis, with the collection of necessary documents and registration with Rosreestr.

Our guarantees

We have been processing real estate rights since 2000.

Legal has a mark of quality of services (Permission to use the mark of conformity No. 000121, registration number 005-09) and Certificate of Conformity No. ROSS RU.04PN.U005 No. 000023, issued by the St. Petersburg system of certification of goods, works and.

Definition of shares

It is very simple to calculate the area that is required by law for each apartment owner. To do this, you need to divide the total area by the number of people. This method works in any case, unless otherwise provided by law.

Exceptions are possible in situations where the owner, at his own expense, has made repairs to the premises or made other inseparable improvements. In this case, he has the right to increase his share in accordance with the funds spent.

If housing was privatized by spouses during marriage, they own equal shares. All children also have the right to equal shares of real estate. Exceptions can be made if the corresponding clauses are in the marriage contract. If only one of the spouses privatized the apartment, he is its sole owner.

After determining the shares, the co-owners can divide all personal accounts to pay for utilities.

Procedure

The procedure itself consists of two main stages:

Determination of shares. If the owners were able to do this voluntarily, they sign the agreement. Otherwise you will have to go to court. The agreement is signed by all parties to the agreement. It may be changed in the future by general agreement. The document can be certified by a notary, but this is not necessary.
State registration of property rights in Rosreestr.

For state registration you will need the following documents:

Passports of all owners. For a minor child - a birth certificate. Separate copies of birth certificates must be made for all children.
Title documents for the apartment.
Voluntary agreement. One copy for each of the parties to the transaction, one additional copy for storage in Rosreestr.

Download the agreement on the allocation of a share in the apartment (sample)

State registration also requires payment of a fee. It is divided in equal parts among all participants in the transaction.

After submitting the application, registration of the right is carried out within 10 days. Documents are stored for issue for 1 month, after which they are sent to the archive.

The standard agreement specifies the following information:

Passport details of the parties to the agreement.
Address of the house, area of the apartment (general and residential), number of rooms.
Cadastral number of the apartment.
Size of shares.
Information on encumbrances imposed on living space.

How to divide a personal account in a privatized apartment

If disputes and conflicts begin to arise between residents registered in the same living space, and there is a desire to split the order into shares, then it should be understood that dividing a non-privatized apartment is impossible.
The division of real estate is always carried out after the re-registration of state property into the private property of citizens. This can be done in several stages. Initially, you will have to prepare a warrant, collect papers and submit them for consideration to the housing department of the city administration. After receiving permission from officials to transfer property, you need to contact Rosreestr to obtain a certificate of property rights. Privatization is always carried out with the consent of the persons registered in the house. Each of them, after privatization, will become a co-owner and owner of a share of the property. Read also: Features and advantages of garage privatization in 2019

An apartment privatized during marriage will be considered joint property. Therefore, in order to divide it and force the spouse to pay utility bills separately, you should initially draw up an agreement on dividing the property and allocating the share of each owner. The agreement for the division of a privatized apartment is drawn up in writing and requires notarization. When the procedure is completed, each of the participants in the process will have to receive a warrant or certificate of ownership of their shares from Rosreestr.

The final stage will be contacting a company that provides utility services in the housing and communal services sector. Here, a separate personal account will be issued for each co-owner, tariffs will be set for it, and citizens will be able to pay utility bills separately. It is important to understand that division into shares and receipt of separate accounts in the housing and communal services industry can only be carried out between the owners, i.e., persons who participated in privatization. A person registered in an apartment after its registration will not have such rights.

Section options

There are two options for allocating a share:

Actually. It should be understood that in this case the apartment actually turns into a communal one. Each owner can not only use his share, but sell it or exchange it for another living space. In this case, complete strangers will live in the apartment.
In monetary terms. The remaining owners compensate the cost of the share to the relative who wishes to allocate it.

Allocation order:

Negotiable. It is carried out by voluntary agreement of all owners of living space.
Judicially.

Allocation in kind

Such a division of living space between owners is possible only if the layout of the apartment allows various auxiliary rooms (such as a kitchen, corridor, bathroom) to be transferred to separate use, as well as a separate entrance to the room.

If such a possibility does not exist, the procedure for joint use of common property can be determined in court. When one of the co-owners gets control of an isolated part of the apartment, he loses the right to use the rest of the living space. If the court has determined the order of joint use, all co-owners can still enjoy the right of common ownership.

As practice shows, the layout of most domestic apartments does not allow for a separate entrance and separate use of the kitchen and bathroom. Therefore, most often the court makes a decision to allocate isolated rooms to each owner, while the common premises remain in shared ownership.

The allocation of a share in kind is carried out only if this is possible in practice. For example, this is impossible in a one-room apartment, since each of the owners will not be able to get an isolated room.

Download the agreement on the allocation of a share in kind (sample)

Division of an apartment in shared ownership

According to official statistics, to buy a one-room apartment, a Moscow resident will have to save all his income for 6 years. Therefore, acquiring your own housing is one of the main goals of Russian residents until the housing issue is removed from the agenda.

Due to the high cost of housing, the only option for many families is to buy a share of an apartment. From the buyer’s point of view, buying a share is not much different from buying a “whole” apartment. However, registering and selling a share is not so simple - it must first be allocated.

The allocation of shares in an apartment is most often associated with the divorce of spouses. Other cases - allocation of shares for relatives, children and in other cases.

From a legal point of view, one should distinguish between 2 types of common property in an apartment:

joint - both owners have equal rights to the property. Basically, this is the joint ownership of housing by spouses;
shared – for each owner his share is determined (in quantitative terms).

These types of property have certain differences. Thus, legally, property rights are the right to own, use and dispose of property.

In case of joint ownership, each spouse can dispose of their half of the property, but with the consent of the other spouse.

In addition, in the case of joint ownership, the size of the share is not determined. But, for example, for tax purposes, both owners are considered equal.

In the case of shared ownership, each owner is assigned a certain part of the value of the property. The tax here is calculated in proportion to the share of ownership; the share, if desired, can be sold, exchanged or rented out. In other words, a share has all the attributes of ownership.

The law does not determine the maximum possible number of shares in an apartment. Since the principle of freedom of property disposal applies here, the apartment can be divided into any number of shares.

Of course, it is unlikely that anyone will buy 1/1000 share of an apartment with good intentions. Buying too small a share is usually due to the buyer’s desire to “outlive” the remaining owners, forcing them to sell the remaining shares for next to nothing.

According to the requirements of the law, it will not be possible to divide a municipal apartment into shares - its owner is the municipality, and the residents live on the basis of a social tenancy agreement.

If you somehow need to divide the housing, then there are several options:

give up this apartment and pick up 2 other municipal apartments. This is impossible in practice - municipalities usually do not have available housing (except for the flexible stock), especially the one corresponding to the square footage;
one of the residents checks out and moves out of the apartment. By agreement, the other tenant pays him compensation. The downside here is that such a deal cannot be formalized;
privatize an apartment, which is then divided - by agreement or through the court.

In practice, the latter method is most often used - it does not require any serious costs, and the advantage is that the apartment will be the full property of the residents.

When applying for a mortgage loan, the purchased home itself remains pledged to the bank - residents will not be able to dispose of it at their own discretion until the loan is fully repaid. Moreover, if the loan is issued by a family, the spouses become co-borrowers; usually the agreement stipulates equal responsibilities for paying mortgage contributions.

In the event of a divorce, the bank will simply split the mortgage payment and send equal claims to both ex-spouses. It happens that one spouse earns much more than the other. Similar problems arise if the co-borrowers are not relatives at all.

In this situation, some banks allow you to specify in the contract different shares of ownership of the mortgaged home, as well as different shares of the monthly mortgage payments. But you should understand that if one of the co-borrowers stops paying, the bank will demand the entire amount from the second borrower.

If you specify, if necessary, different shares in the mortgage loan agreement, this will avoid many problems with the division of property in the future.

Legislation in the field of family support, which introduces the concept of maternity capital, establishes a rule: if maternity capital is used to improve living conditions, then shares in real estate must be allocated for both parents and all children.

This applies both when maternity capital is added to one’s own funds, and when it is used to repay a mortgage loan (in the second case, the recipient of the capital undertakes to allocate shares after the encumbrance on the housing is removed).

It is important that shares for spouses and children must be allocated from the entire area of housing (and not just that which accounts for the amount of maternity capital). The Supreme Court decided that such real estate is divided among everyone in equal shares.

When buying a home using maternity capital, you need to allocate shares within 6 months (if ownership is not registered for everyone at once when purchasing a home).

At the same time, the law requires provision for the possibility of further reducing the size of shares - if one or more children are born in the family, shares will also need to be registered for them.

In the case of maternity capital, shares can be allocated to children and a spouse through an agreement, going to court or a share donation agreement. At the same time, lawyers note a number of problems with the last option and recommend allocating shares through an agreement.

Common shared ownership right is the right when the shares of each owner from the common property are determined. Allocation of rights implies the transfer of part of the property in kind through the provision of ownership of a part of the apartment or by paying monetary compensation for this share. The division of an apartment in shared ownership can be carried out in two legal ways:

Contractual allocation of a share – division of ownership on the basis of mutual agreement of the parties. Participants can independently reach an agreement on the procedure and conditions for the division of property or contact the judicial authorities.

Judicial allocation of a share is carried out by allocating a share in kind in accordance with a court decision. If a share cannot be allocated due to its insignificance relative to other shares, the owner is awarded monetary compensation from the funds of the remaining shareholders. After receiving compensation, the owner loses his rights to a share in the property.

We invite you to familiarize yourself with the Power of Attorney for the purchase of an apartment: price and sample 2020

Joint ownership implies the existence of a right when citizens own property jointly without precisely determining the size of shares for each of them. The allocation of a share from joint ownership is carried out after a procedure for determining the size of the shares of all participants, and if there is no indication in this regard in the legislation or agreement of the parties, then the shares of the co-owners are usually considered equal.

Judicial order

Allocation in monetary terms

The easiest way to do this is by voluntary agreement. In this case, one of the owners buys out the share of the others and becomes the sole owner of the apartment.

The court may order monetary compensation to be paid to the owner even without his consent. This is done in cases where the share required by law is too small. In such a situation, it is impossible to allocate an isolated room, since its area is much larger than required, and the rights of other owners will be infringed.

After receiving material compensation, the citizen is deprived of all property rights to a share in the real estate.