To date, the Supreme Court of the Russian Federation has provided serious clarifications regarding the rights of citizens who became owners of small shares in one apartment, having issued Decision No. 2-1661/2015 2-1661/2015~M-7879/2014 M-7879/2014 dated June 16 2020 in case No. 2-1661/201. The impetus for such measures was a legal dispute between the co-owners of a three-room apartment, which was considered by the district court, then by the regional court, reached the Supreme Court of the Russian Federation and was subsequently considered by the Judicial Collegium of the Supreme Court. So, let's find out the essence of the clarification of the Supreme Court of the Russian Federation on the rights of owners of small shares in an apartment and the procedure for resolving such disputes, which can become a good precedent and save home owners from problems in the future.
The situation was this: a family lived permanently in a three-room apartment, which owned a significant part of the square meters in the mentioned real estate. After a while, a completely unfamiliar citizen acquired an insignificant share in the apartment.
Moreover, he immediately made serious demands to the permanent residents:
- Let him move into the apartment.
- Give him a set of keys.
- Evict a beloved pet living in this three-room apartment with his family.
Today, issues related to disputes between permanent residents who own a significant share of the apartment and the owner of a small share are becoming painful and acute.
- Why buy a small share in an apartment?
- Judicial practice on shared disputes between homeowners
- Supreme Court decision on apartment share disputes
The severity of the issue lies in the fact that the owners of a small share claim their rights to move into the property and do not want to take into account the opinions of the residents. In addition, the problem - a tenant with a small share in an apartment - is often the hero of crime reports, that is, initially such a micro-owner pursues near-fraudulent goals.
Why buy a small share in an apartment?
We are considering situations where one or another entity purposefully acquires 1 square meter in an apartment and this new micro-share owner tries to move in, and often such a citizen also has a frightening appearance and criminal habits. Such a co-owner of the property behaves in an appropriate manner in order to create conditions of constant stress for permanent residents that are impossible for a normal life. Why is this being done? So that the neighbors in the premises, tired of such a life, sell their shares at a price below the market price or simply move out in fear for their lives and the lives of their loved ones.
There was a time when, in such cases, the law enforcement agencies did not receive any assistance from the honest owner of the main share of housing - the law enforcement agencies were not even going to intervene, they denied and referred to the fact that these obvious criminal actions are nothing more than civil legal relations between the owners housing. For citizens who find themselves in similar situations, today the matter has moved from a dead point - a number of criminal groups from Moscow and the Urals got what they deserved, and particularly zealous scammers are already serving time in places not so remote.
Minor share
But if the share of one of the owners is insignificant, the other can achieve its forced redemption. There is no clear answer in the law as to what share is insignificant; it is usually recognized as such if:
- There are difficulties with the order of use. For example, two families own one room.
- The share cannot be allocated (make a separate entrance, bathroom, etc.).
- The owner of a small share does not live in the apartment and does not have a significant interest in it.
- The owner has another living space.
- The owner does not pay for utilities.
And of course, the size of the share and its area are taken into account. The smaller it is, the greater the chances of recognizing it as insignificant.
Usually, decisions on forced repurchase are not made for relatively significant shares (1/2, 1/3, 1/4). However, let's consider the real situation.
Judicial practice on shared disputes between homeowners
A fresh decision of the Judicial Collegium for Civil Cases of the Supreme Court helped residents who own small shares in an apartment to understand the situation. The Board considered the results of a similar dispute between tenants in the city of Novosibirsk, in whose apartment a certain citizen came with claims against a married couple living in the apartment. The plaintiff had a 3/9 share in the property as a common share in a three-room apartment. The remaining 6/9 shares were owned by a married couple, and they were registered in the apartment and lived there on a permanent basis.
The owner of a small share filed a lawsuit demanding from the co-owners of the three-room apartment that they allow him to live in this three-room apartment. The regional court agreed with the plaintiff, although the district court's decision on this claim was negative.
The regional court overturned the refusal decision of its colleagues from the district court and independently made a decision: to allow the citizen to live in a three-ruble ruble, and for the married couple not to create obstacles in the use of residential real estate by providing him with a set of keys.
The couple decided to appeal to the Supreme Court to protect their interests, and ultimately the Supreme Court of the Russian Federation ruled that the decision, which was made by the regional court in favor of a citizen who owns a small square footage in the apartment, has no legal basis.
In this controversial issue, the Supreme Court noted one thing: “Crime news, in which the protagonist is a newly made tenant with a small share in the apartment, increasingly began to appear in reports and news feeds.”
The district court, rejecting the plaintiff, expressed its opinion that the apartment being the subject of the dispute had never been his place of residence before the purchase of square meters. As at the moment it is not. He acquired the share the day before from the previous owner, who did not establish the procedure for using the property.
In addition, what is most important: in the three-room apartment there is no room that would correspond in size to the size of the plaintiff’s share.
Having canceled this decision, the appeal indicated that if there is no procedure for using the apartment, then this cannot be a valid reason to prohibit a citizen with small square meters from moving into the housing and living in it. His right to square meters cannot be intertwined with the mandatory determination of the procedure for using real estate that is in common shared ownership.
Supreme Court decision on apartment share disputes
The Supreme Court did not agree with the argument in the appeal. If we look at Article 288 of the Civil Code and Article 17 of the Housing Code, it says that residential premises are intended for people to live in.
But if the residential premises are owned by several citizens on the basis of common shared ownership, then Article 30 of the Housing Code on the right of citizens to dispose of their property must be inextricably linked with Article 247 of the Civil Code on ownership of property in shared ownership. And such shared property can be disposed of only by agreement of the parties.
And if the owners do not agree, then disposal can be made by decision of the judicial authority. The owner of small meters has the right to own property, which is proportional to his share. And if this is not possible, then he has the right to demand compensation for his share.
In this case, the defendants are a married couple who are not related to the plaintiff by family or friends. The three-room apartment had three adjoining rooms, and none of them corresponded to the share of the new owner, since it was significantly less than the meters specified above. And even the smallest room, in which it was still a stretch to accommodate a new owner, could only be accessed after passing through the two rooms in which the married couple lived.
In addition, the layout of the apartment is such that in order to get to the toilet, bath, or kitchen, it was necessary to pass the rooms of the family that owns the main share in the apartment. The situation is further complicated by the fact that the new owner had never lived in this apartment before purchasing his meters. The final conclusion of the Supreme Court: if the plaintiff moves into the housing, Article 247 of the Civil Code will be violated; this article requires taking into account the real possibility of using the residential premises without violating the rights of the residents living in the apartment. And if the new owner is allowed to move in under such conditions, then the interests and comfortable living of other participants in the common property will be violated.
When is it necessary to recognize ownership of a share in an apartment through the court?
You should contact a judge to recognize ownership of a share of an apartment only if you actually have the right to a share, but there are no supporting documents.
You can own a share in an apartment based on the following facts:
- entry into inheritance;
- purchasing an apartment during marriage;
- an improvement to a spouse's property that increases its value.
Hereditary share
It may happen that the notary cannot issue a certificate of inheritance,
despite the available documents. For example, the deceased’s apartment was purchased during marriage, but the right was not registered in the name of the spouse.
A notary may refuse to partition if the right is not registered with Rosreestr, for example, there is only a Soviet-style certificate for an apartment.
To prove the right to a share, you need to write a claim to the court, to which you must attach:
- Marriage certificate;
- contract of sale, exchange or privatization;
- certificate for the apartment (or extract from Rosreestr);
- receipt of state duty (you can calculate and print it on the website of any federal court).
In court, you need to declare the right that arose to the share during the marriage.
Another inheritance dispute: one of the legal heirs was unable to inherit on time, and the apartment was divided among other heirs.
To be recognized as a share in court, you must prove the fact that it was impossible to contact a notary on time.
The following documents will be ironclad evidence in court:
- certificate from a consulate, representative office, or embassy confirming residence in another country;
- certificate of stay in a hospital or other medical social institution;
- another document indicating the validity of missing the deadline for going to the notary.
In this case, the claim will have two demands: to restore the missed deadline and to recognize the plaintiff as the owner of the share.
According to the norms of the Civil Code (Article 1148), heirs other than blood heirs may be:
- minors who were dependent on the deceased;
- disabled dependents.
In this case, the condition must be met: the dependents lived together with the deceased for a year before his death . Along with the claim for recognition of the share, the following documents must be presented to the court:
- certificate of residence (proves the fact of cohabitation);
- child's birth certificate;
- certificate of incapacity for work for adults (pension certificate or certificate of disability).
There is also inheritance by right of transmission. For example, the deceased had three children. One of the children did not live to see the opening of the inheritance, but his children will now inherit his share. In this case, you need to submit a request to the court for recognition of the share and provide the following documents:
- birth certificate of the heir who did not live to see the opening of the inheritance;
- birth certificate of the children of this heir.
Thus, the judge will see the relationship between the deceased (grandfather/grandmother and mother/father) and the right of transmission.
Marital share
According to the norm of Article 34 of the Family Code, all property that spouses acquired during marriage is their common property.
It does not matter to whom the certificate of ownership is issued.
You can divide an apartment into shares both during a divorce and before it.
The judge will not divide property that is recognized by law as personal:
- the apartment was purchased before the wedding;
- the apartment was gifted to the husband or wife;
- the apartment was privatized, but one of the spouses refused privatization;
- the apartment was inherited.
Also, the apartment will not be divided if a prenuptial agreement was drawn up before the wedding, according to the terms of which the housing is not divided in the event of a divorce.
To request recognition of a share, you must submit the following documents to the court:
- marriage (or divorce) certificate;
- contract of sale and purchase (or exchange) for an apartment.
Important: Article 39 of the Family Code established equality of shares of husband and wife in an apartment, that is, in case of divorce it is divided in half.
However, according to the rules of this article, the share of one can be increased if the second did not work without good reason, being able to work (child care and housekeeping are good reasons).
The share can be increased in favor of the wife if children remain living with her after the divorce.
Acquiring a share by improving the apartment
Even if the apartment was purchased before marriage or it is personal property, the second spouse has the right to claim a share of the apartment during a divorce.
This rule is enshrined in Articles 37 of the Family Code and 256 of the Civil Code. The condition for recognition of the share is the fact that, at the expense of the second spouse, the characteristics of the apartment were improved, thereby its value increased. For example, in the wife’s apartment the husband during the marriage:
- carried out communications (water, gas or heat);
- made expensive repairs.
To recognize a share, you must submit a claim to a judge, to which you must attach:
- marriage (or divorce) certificate;
- documents on investments in the apartment (contracts for communications, major repairs, etc.).
When considering the case, you can request an examination, where you can ask the experts: how much the cost of housing has increased due to the spouse’s investments.
Important: nothing will work if the marriage has not been officially registered.
To relocate from dilapidated housing, owners will have to go through a mountain of bureaucratic red tape. Do your neighbors keep you awake at night and do you suffer from constant noise? Find out how to influence offenders. Read our article. In case of prolonged non-payment of utility bills, you will have to pay a penalty. How it is calculated is described in detail here.
Decision No. 2-1661/2015 2-1661/2015~M-7879/2014 M-7879/2014 dated June 16, 2020 in case No. 2-1661/2015
...Due to the fact that there are no grounds for the plaintiff to move into the apartment, there are no legal grounds for transferring to him a set of keys to the front door, as well as for satisfying the requirement to isolate the dogs, since the plaintiff has not presented evidence of violation by the defendants of the rules for keeping dogs, violation of rights the plaintiff when keeping dogs and the real possibility of isolating the dogs in a place that prevents them from moving around the apartment, taking into account the lack of isolated rooms in the apartment. Under these circumstances, the grounds for satisfying the claims of Khudyakov V.M. not available. Based on the above, guided by Art. Art. 233-237 of the Code of Civil Procedure of the Russian Federation, the court decided: in satisfaction of the claims of V.M. Khudyakov to L.V. Krylova, K.A. Krylov for the elimination of obstacles in using the apartment, the transfer of a set of keys to the front door, the obligation to isolate dogs, the allocation shares in kind, moving into a room with an area of 10.7 sq.m. - refuse. The decision can be appealed to the Novosibirsk Regional Court through the district court within one month. Judge O.V. Chistova
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