How to allocate your share in a privatized apartment

Shared and joint ownership

Common property can be shared or joint.

• Joint ownership - when a thing is owned by 2 or more people, and in what shares they own is not defined. For example, when a husband or wife buys something, they have just such, joint ownership of this thing (Article 34 of the RF IC). It does not matter which spouse the item (an apartment or a car, for example) is registered in the name of.
• Shared ownership - when a thing is owned by 2 or more people, and it is determined in what shares they own. For example, the husband owns ½ of the apartment and the wife owns ½ of the apartment.

It is important to know: this is why, in order for one of the spouses to sell an apartment, the second spouse’s notarized consent to this sale is required (Article 35 of the RF IC). After all, the sale transaction is made on behalf of one spouse, but both own the apartment being sold. Therefore, the consent of the second is required.

Division of an apartment in shared ownership

An apartment that is jointly owned cannot be divided. In order to divide it, you need to allocate a share in the apartment, that is, determine which spouse owns which part of the apartment (Articles 38, 39 of the RF IC). You can allocate a share in an apartment:

• during marriage;
• during a divorce;
• after divorce.

That is, whenever, in other words.

The allocation of a share can take place:

• voluntarily, i.e. spouses simply agree on who owns what share. In this case, you need to draw up an agreement on the division of the share in the apartment and have it certified by a notary, only then will it have legal force (Part 2 of Article 38 of the RF IC). If the spouses divorce, the court will take this agreement into account;
• according to the court. If the spouses cannot agree, the court will decide who owns what (if the spouses file a claim in court for the allocation of a share, of course). In this case, the court will proceed from the fact that the shares of the spouses are equal (Part 1 of Article 39 of the RF IC).

It is important to know: it would seem that everything is simple. But the same principle “the shares of the spouses are equal” has a lot of nuances and exceptions, and the court may recognize the shares as not equal, but give one spouse ⅔ of the apartment, and the other ⅓, for example. To find out the intricacies of these situations, sign up for a consultation - the consultation is free and does not obligate you to anything.

How to “settle” disputes regarding shared ownership of an apartment?

“We usually come across shared ownership when it comes to dividing property between heirs,” says experienced Moscow notary Alexey Safonov. — If it is possible to resolve all issues peacefully, then the agreements reached are recorded in notarial form. If the heirs cannot agree, then it is useless for the notary to do anything - the disputants have a direct road to court. In practice, the following options are possible: 1) The court determines the procedure for using property (apartment) that is in common shared ownership. In this case, clause 2 of Art. 248 of the Civil Code: a participant in shared ownership has the right to use a part of the common property commensurate with his share. And if it is “technically” impossible to allocate such property, then the owner-shareholder is entitled to monetary compensation. 2) The share of a co-owner can be allocated by the court at his request in kind (based on clause 3 of Article 252 of the Civil Code of the Russian Federation). It is clearly impossible to do this, for example, with a one-room apartment, so an additional rule applies: if the allocation of a share in kind is impossible, its owner has the right to demand monetary compensation. It is also possible that the co-owner receives a smaller part of the housing in kind and an additional payment - for example, when sharing a two-room apartment with rooms of different sizes. However, according to Alexey Safonov, in reality option 2 practically does not occur. Apparently, the courts are trying to avoid turning “shared” apartments into communal apartments, since with the adoption of the Housing Code in 2005, the state took a strict course towards the “disappearance” of communal housing. 3) Most often, if it is not possible to divide a common apartment, and it is not possible to get along with a certain order of use (see option 1), then the co-owners are recommended to sell the home and divide the proceeds.

At the same time, the Civil Code provides for another way: to separately sell your own share in the apartment (Article 246 of the Civil Code of the Russian Federation). In this case, the transaction and its terms, including the price, do not need to be agreed upon with the co-owners of the living space. However, there is a rule that co-owners have a pre-emptive right to purchase a share (Article 250 of the Civil Code of the Russian Federation). In practice, compliance with the rule looks like this: the owner of the share must send written notice to the co-owners about the upcoming sale, its date and the set price of the share. The safest way is to use a notary service: the notary sends letters from his address to the co-shareholders with notification of delivery. Receipts for receipt of “dispatches” are returned to the notary’s office. By counting one month from the date of receipt of the letters by the co-share recipients, the owner of the share can enter into a transaction. At the same time, receipts and copies of notification letters are full-fledged evidence of compliance with the rights of co-shareholders to pre-emptive purchase. However, realtors recommend this option as a last resort: in the housing market, a share in the ownership of an apartment costs 20 - 25% cheaper than a separate living space. This is understandable: when purchasing a share, the buyer must be ready to “win” it back in reality, negotiate the use of housing with co-owners, etc. STAY IN TOUCH!

Many who suffer from “intractable” sharecroppers may find this instructive story useful, which, according to Alexei Safonov, happened in a famous Moscow acting family. The owner of 1/10 of the share, who received it as a result of inheritance, actually blackmailed other household members: they say that I will not give consent to sell the entire apartment, and I will not sell my share (it corresponded to about 4 square meters of living space) to you for less than 3 million rubles.

In court, the lawyer hired by the rest of the family skillfully used clause 4 of Art. 252 of the Civil Code. According to this clause, if the share of a co-owner is insignificant and he “does not have a significant interest in the use of the common property,” then the court may decide to forcefully “replace” the share with monetary compensation. “That is, in fact, it is possible to achieve a forced sale of the “scandalist’s” share to the remaining co-owners. Moreover, in this case the average market price is used,” explains Alexey Safonov.

On the allocation of a share in a communal apartment

There is no legal definition of a communal apartment. It is believed that a communal apartment is an apartment where:

• there are several families or several people who do not belong to the same family;
• Each family owns its own room in the apartment.

It turns out that each family has shared property, because one family has joint property, but here the families are different.

Shared ownership and allocation of a share in an apartment are two different things. With shared ownership, the property remains common. But when a share is allocated from common property (a share is allocated), then this allocated share no longer becomes common property. This share is independent property, it is outside the common one.

The owner of a room in a communal apartment can allocate a share from it (Part 2 of Article 252 of the Civil Code of the Russian Federation). As in the case of one family, this can be done:

• through an agreement with other owners on the allocation of a share in the apartment;
• or through the court.

Important to know: sign up for a free consultation if you are interested in the question of how to quickly and without legal errors achieve the allocation of a share in a communal apartment.

Arbitrage practice

Judicial practice on the division of apartments is quite extensive. This is due to the fact that few of the former spouses find the strength to peacefully agree on the division of expensive, and, most often, the only living space.

As a rule, the trial ends with a more or less fair division of the apartment that suits each party. Most often, it is divided in half; in some cases, the share of one of the spouses increases at the expense of the share of the other.

At the court hearing, the court can apply several options for dividing the apartment:

• determine the ideal shares of the parties and divide the living space according to these shares;
• divide the apartment in kind and determine the procedure for using common premises in the apartment (such a division is impossible in a one-room apartment);
• transfer ownership of the apartment to one spouse, obliging him to pay monetary or property compensation to the second;
• decide on the sale of housing and the division of proceeds from the sale in accordance with the shares of each.

Usually the court divides the living space in half, but there are often cases when it may deviate from the equality of shares, for example:

• in the presence of young children or adult incapacitated family members;
• if one of the spouses does not have any other housing and the latter’s income is low;
• if one of the spouses is seriously ill;
• with a significant increase in the cost of the apartment at the expense of the personal funds of one of the parties.

To summarize the above. Of course, if there is such an opportunity, it is better for former spouses to prefer a peaceful solution to the problem of division rather than resort to court decisions. This is faster and less painful morally, and the costs will be an order of magnitude lower.

But if litigation cannot be avoided, it is better to enlist the support of an experienced lawyer in civil and family disputes in advance, at the initial stage of the process.

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How to calculate shares

When spouses buy an apartment, their shares are assumed to be equal (Article 39 of the RF IC). But this does not in the least prevent the spouses from drawing up an agreement on dividing the apartment into shares and registering other shares there.

Example: spouses buy an apartment for 10,000,000 rubles. The husband invests 8,000,000 of his own, the wife - 2,000,000 of hers. Obviously, the husband paid 80% of the cost of the apartment, and the wife - 20%. You can draw up an agreement that the husband owns ⅘ of the apartment, the wife - ⅕. If such an agreement is not drawn up, then the general rule will apply that the shares of the spouses are equal.

The allocation of a share is already much more complicated, because it involves “allocation of a share in kind” (this is a legal term, if anything), that is, there must be an isolated living space, for example, a room. This will not work with a one-room apartment. In general, legal disputes with housing are a confusing and complex thing, where each case is resolved in its own way.

Appraisal of an apartment for court division of property

Plaintiffs ask a lot of questions about the valuation of the apartment. Some of them need to be considered in more detail.

Is it necessary to attach an independent assessment report for the residential premises to a claim for division of an apartment?

If the parties to the proceeding agree with the price of housing indicated in the claim, then an independent assessment is not necessary.

When is the best time to conduct an assessment?

No one can force either the plaintiff or the defendant to conduct an assessment before or during the court hearing. Of course, if there is a dispute about the value of the divided apartment, the court will request an independent examination, but lawyers recommend not rushing to conduct it before the trial. There are grounds for such caution, since if the plaintiff carries out an assessment before the trial, and the defendant challenges it at the court hearing, then:

• the court will order a re-examination;
• no one will reimburse the costs of the initial assessment;
• if a repeated examination shows that the cost at the first assessment was significantly underestimated or overestimated, then, most likely, the court will charge the costs of its conduct to the plaintiff, that is, the plaintiff will have to pay for two independent examinations.

What influences the appraisal of an apartment?

Many factors can affect the valuation of real estate:

• location of the disputed residential premises;
• number of storeys of the house and the material from which it is built;
• technical condition of the apartment;
• its area and layout.

This is important to know: Counterclaim for division of jointly acquired property

Who conducts the assessment and how?

Independent assessments have the right to be carried out by relevant organizations that have a license to do so. The deadlines are set by the appraiser himself. Based on the results of its implementation, the customer receives a conclusion containing the following information:

• details of the organization that conducted the examination;
• information about the apartment that was assessed;
• date and document number;
• conclusions;
• signature, seal, date of compilation and, if available, a list of attachments.

How much will you have to pay?

The cost of the assessment depends on market conditions, the object itself, the region; in Moscow or St. Petersburg this figure can be several times higher than in other regions. The approximate cost of an appraisal in a residential area of ​​Moscow will be 5 thousand rubles.

Why do you need a lawyer when allocating a share in an apartment?

Joint property, shared property, allocation of shares, determination of shares in fractions - all this is not so simple. And when it comes to a one-room apartment, the situation becomes even more confusing, because the allocation of a share in a one-room apartment is always a big question.

When any legal action is being carried out, be it concluding an agreement on the allocation of a share in an apartment or filing a lawsuit on the same issue, it is necessary that the documents do not contain legally inaccurate language - accuracy is necessary everywhere.

Of course, you can download sample claims on the Internet, but they are specifically written to fit any situation. This means that the nuances of your case will not be taken into account. And nuances in jurisprudence are very important.

Services of our lawyers

• free legal advice on the allocation of a share in an apartment through an agreement or through the court;
• drawing up an agreement on the allocation of shares;
• preparing a claim, collecting documents that need to be filed in court;
• representation in court.

Sign up for a free consultation to know exactly how to act in your situation, especially since the consultation is free and does not obligate you to anything. To register, just leave a message in the form below or call yourself. In this case, you will spend only 15 minutes of time, but you will receive legal advice that will protect you from possible mistakes that can cost months and tens of thousands of rubles.