Is a privatized apartment a joint property?
At first glance, everything is quite simple, but delving into the essence of the issue, a lot of pitfalls are revealed in more detail.
Privatization occurs at the expense of accumulated family funds, which distinguishes it from a purchase that is taken into account when dividing. Privatization is a free form of realization of property rights.
What role is assigned to the distribution of shares between spouses in the division?
If during the denationalization of real estate the fact of participation of one of the family members is registered, then from a legal point of view, when the refusal is formalized, he will no longer be the owner of the property and will not be able to lay claim to it. In this case, the privatized apartment does not belong to jointly acquired property, but accordingly becomes sole property.
But even in this situation, justice can prevail if a family member files a lawsuit in order to assign the property the status of jointly acquired property. To file a claim, the plaintiff must have a number of documents proving his case (receipts for payment of utilities, receipts for payment for purchases, etc.). They will indicate that the spouse took direct part in the process of privatization of the living space or in the repair work of the property.
The privatization application already implies the size of the share of each family member. And the law reserves this right for them. Privatized living space is recognized as jointly acquired if one and the second spouse receive equal shares.
Basics of inheriting a privatized apartment
Privatization of an apartment means its consolidation in the private ownership of a person or group of persons.
The most common is the assignment of private property to a group of people who live in such an apartment (parents and children, for example).
In this case, the real estate area is distributed between them in equal parts, and they themselves are considered equal co-owners of the apartment - part to the spouses, part to children or other relatives.
In such a situation, if one of the owners dies, his heirs can only obtain the right to that part that was in his private property.
That is, the person who acquires such a part in the apartment becomes its simple co-owner, who was the deceased.
When answering the question “who has the right to inherit a privatized apartment,” one should proceed from the general rules of inheritance.
In general, inheritance can be of two main types - by law and by will. You can receive an apartment or part of it in accordance with the general rules for receiving an inheritance.
Laws governing privatization
The division of a privatization apartment is mentioned in the following legislative projects:
- Family Code of the Russian Federation, Article 36;
- Law of the Russian Federation No. 1541-1 “Privatization of housing stock in the Russian Federation”;
- Civil legal code of the Russian Federation.
A clear division of boundaries between the property of family members before marriage and during family life can eliminate unnecessary red tape.
Inheritance by law
Inheritance by law occurs in the absence of a will and is the more common type of inheritance in our country.
Inheritance by law occurs in the order of priority established by the Civil Code of the Russian Federation.
The inheritance queues for a privatized apartment according to the law are as follows:
- 1st priority – children, spouse and parents of the testator;
- 2nd priority – full and half brothers and sisters of the testator, his grandparents, both on the father’s and mother’s sides;
- 3rd priority – full and half brothers and sisters of the testator’s parents (testator’s aunts and uncles).
Information!
The spouse is the heir of the first order. Inheritance according to the law of a privatized apartment occurs in the following order: first, the heirs of the 1st stage take over.
If there are none, the second one and so on. Inheritance of a privatized apartment without a will occurs under the full control of a notary at the location of the apartment (by analogy with the principle of jurisdiction of a real estate case by a court).
It is the notary who handles the inheritance matter.
What rights do spouses have to own an apartment?
When dividing property, a lot of subtleties arise that are often not immediately recognized. An apartment privatized for one of the spouses before marriage is considered personal property. Then the privatized apartment is not joint property. The apartment is indivisible; during the division it remains with the equal owner (Clause 1 of Article 36 of the RF IC).
If the privatization of real estate occurred during the period of marriage, then there are 3 options for the development of events:
1. Joint privatization
According to the information already presented: privatization implies the size of the share of each family member. During a divorce, the property is divided into equal shares or parts of each person contributed during privatization. Spouses, when dividing or selling real estate, receive funds in the amount corresponding to their share.
2. Sole ownership
When dividing property, if one spouse has the full right of sole ownership acquired during their life together, the second, in case of refusal of denationalization, may have the exclusive right to use the living space in accordance with paragraph 1 of Art. 36 IC of the Russian Federation.
3. Lack of consent of one of the family members
If privatization took place without agreement between the spouses (ignorance of one of them about privatization), then when he formalizes a refusal of denationalization, he is deprived of his rights as an owner. And if a refusal is not received, then privatization through the courts is possible; there is no other method of privatization.
Spousal share in a privatized apartment
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Subtleties of the housing issue
In the event of a divorce and subsequent division of property, neither spouse suspects that his incompetence in the privatization process may leave him without a roof over his head. For example, you should not renounce property in the hope that your share will go to your children, and the author of such a statement will be severely punished.
Also, do not lose your head when filling out a privatization application. Not parts, but shares indicated in the documentation will allow you to easily divide the property.
Characteristic features and nuances
Registration of an apartment into joint ownership is often done in a hurry. Participants in the process sometimes approach it without the necessary knowledge in this area, sometimes simply, without thinking that ignorance of the issue in the future can have dire consequences and one of the family members will lose the right to even part of the property.
For example, even for noble purposes, it is not recommended to write a refusal, with the goal of ensuring the heirs a decent future, leaving the majority of the apartment to the children. Practice shows that in most cases such actions of the author lead to a disastrous result and as a result he is simply left without a roof over his head, no matter how sad it may sound.
An important point is the division of parts of the apartment, which are mentioned in the privatization application. It is recommended to be determined in fractions. In such situations, the living space will be classified as shared ownership, and accordingly, the division of property will go smoothly and there will be no difficulties in the process.
If earlier this point was overlooked and it was not given due attention, and when completing the documentation, not parts, but parts, were included in the documentation, do not despair. The way out of this situation is to visit a notary to draw up an agreement on the division of living space. You should not give preference to methods of deception and try to persuade your spouse to refuse.
The optimal and fair solution would be a timely division of property into 2 equal parts, in which the spouses will have equal rights to own property!
Marital share in inheritance by law
Hello! My husband purchased an apartment with a mortgage and a car with a car loan before marriage.
We lived in marriage for 14 months. The mortgage was paid by the husband for only a year before marriage. The husband died. There are two heirs: the wife and the husband's mother. The notary according to the law issues two certificates per.
Good afternoon After the death of the father, is it possible to allocate his marital share (for inheritance) in the house.
if it was built on the site of an old house and land inherited by the wife.
Share in the common property of the spouses
In most cases, people who get married do not think about the fact that they will someday have to get a divorce. Therefore, they do not bother themselves with studying the legal side of divorce, but with questions “what to do?” and “what should I do?” begin to attack lawyers when they are faced with all the pitfalls of the divorce process.
Meanwhile, in order for the divorce process to be as painless as possible, you need to know some legal subtleties, which we will tell you about.
Legal regime of property
The first thing that needs to be determined when starting to divide property is the regime of its legal regulation, i.e. the rules applied to it. The Family Code of the Russian Federation (FC) provides for two legal regimes for the property of spouses:
– legal; – contractual;
Legal is the general, most common option for regulating marital property. According to Art. 34 of the Family Code, property acquired by spouses during marriage is their joint property. In other words, everything that you acquire during marriage (from a spoon to a family estate) will be the common joint property of the spouses and upon divorce will be divided equally, unless otherwise stated in the marriage contract (if any), or other legally executed document.
Contractual is a regime that is less common, but provides significantly greater guarantees when dividing property. In the contractual regime, two main instruments are usually used - a prenuptial agreement and a property division agreement.
A marriage contract can be concluded both before the marriage is registered and at any time during the marriage. An agreement on the division of property is usually concluded before the divorce or immediately after it.
Where to start “dividing”?
So, the procedure for dividing property between former spouses begins with establishing the fact - whether a marriage contract or an agreement on the division of property was concluded.
If there is a prenuptial agreement, then difficulties will be minimized. After all, as a rule, in a well-drafted marriage contract, everything is spelled out in great detail (who will get what color pan, and who will get what brand of car). The only thing you need to focus on is whether all acquired property is covered by the contract and whether the clauses of the contract violate the rights of any party.
If there was no prenuptial agreement, an agreement on the division of property was not reached or signed, and there is no hope of reaching a compromise, then there is only one option left - division of property in court.
What property is subject to division?
As you already understood, if during a divorce it comes to the division of property, then the property acquired jointly during the marriage will be divided. Joint property includes: salary; income from business activities; income from the results of intellectual property (written book, song article, filmed film); pensions; benefits; movable and immovable property acquired at the expense of common funds; purchased shares, deposits, securities. At the same time, the spouse who did not have income for good reasons also has the right to common property. For example, if the wife did not work and was engaged in housekeeping and raising children, she has the right to common property.
Share of spouses in common property
As a general rule, spouses have the right to receive equal shares of what they acquired during marriage. It does not matter to whom things and property are registered or registered. Property is divided in court precisely on the principle of equality. The acquired property is divided by establishing shared ownership of it, or by transferring different things of the same value to each, or by transferring items to one with payment of compensation to the other. Judges decide what to transfer and to whom, taking into account the established procedure for using things and the needs of the parties. The property can be divided into parts - separately real estate, money, cars, etc. or all at once. You cannot divide into categories like “real estate for me in Moscow, and for you in Uryupinsk.”
In addition, there are some other nuances:
Property that was received before marriage, as well as property received by one of the spouses as a gift or by inheritance during marriage is his property. In other words, if your wife had an apartment before marriage, and your beloved aunt gave you (already married) a yacht on February 23, then after the divorce everyone will remain with their own apartment and yacht. But there is one “but”! If the court recognizes that during the marriage investments were made in this property at the expense of joint property or the personal property of the other spouse, and they significantly increased the value of the property, then the property may be recognized as joint property. For example, before marriage, your wife had a small house in the village, and you built a castle from it at your own expense and were able to confirm this in court, then the castle will be recognized as joint property.
Items for personal use (clothes, shoes, etc.), with the exception of jewelry and luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them, i.e. your wife's Versace dresses and your Zarya suits will not be shared.
Exclusive rights to the results of intellectual activity (inventions, computer programs, written books, paintings, etc.) will be recognized as the personal property of their author, but this does not apply to income. As they say, the last name on the cover of the book you write will be yours, and the income will be shared with your spouse.
Property acquired by each spouse after the actual termination of family relations during separation may be recognized by the court as their personal property. But again, you have to try hard and prove in court that you purchased the car with your personal funds only after you left your wife (or left your husband)
Finally, children's things are recognized as belonging specifically to the children and remain with the parent with whom the children will live.
We must not forget about the common debts of the spouses, which reduce the common property and are distributed between the spouses in proportion to the shares awarded to them, i.e. If a spouse loses 100 thousand rubles at cards, then by this amount the court can reduce his/her share due when dividing joint property.
Of course, not everything can be divided in kind, according to the principle: half for you and half for me. For example, a one-room apartment, a car, a painting, an airplane, etc. cannot be divided into two. In this case, it is possible to replace the share due to one of the spouses with monetary compensation calculated on the basis of the average market value of the item being divided. If the former spouses are unable to voluntarily agree on the amount of such compensation, it is determined by the court.
Such specific property as the spouse's share in the ownership of any object is also included in the total property mass during a divorce.
In fact, when separating the joint property of spouses from their personal property, much more difficulties can arise, which can cause ex-spouses, lawyers, and judges to stumble.
Therefore, when drawing up a marriage contract and when dividing property in court, we advise you to use the services of notaries, who have the greatest experience in drawing up marriage contracts in Russia. union of a man and a woman registered with the civil registry office. Unregistered de facto marital relations (civil marriage) do not give rise to legal consequences - that is, the rights and obligations of spouses in accordance with the Family Code of the Russian Federation, just like a marriage concluded according to a religious rite. Registration is carried out only in the personal presence of those entering into marriage; representation in this case is not allowed. Legal entities and individuals who enter into or have entered into an agreement with each other. A party to the agreement may be the state (the Russian Federation, its constituent entities), which act on an equal footing with other participants in civil law relations. This is an agreement of persons entering into marriage, or an agreement of spouses, defining the property rights and obligations of spouses in marriage and (or) in case of its termination. The marriage contract is concluded in writing and is subject to notarization. land plots, subsoil plots and everything that is firmly connected to the ground, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, unfinished construction objects, as well as parts of buildings intended to accommodate vehicles (machines) -places). Immovable property also includes aircraft, sea vessels and inland navigation vessels subject to state registration. a part of property belonging to the owner that is owned by two or more persons (common property). land plots, subsoil plots and everything that is firmly connected to the ground, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, unfinished construction objects, as well as parts of buildings intended to accommodate vehicles (machines) -places). Immovable property also includes aircraft, sea vessels and inland navigation vessels subject to state registration.
The order of inheritance of the marital share
The owner of 1/6 of the part himself wants to take possession of the entire apartment and offers all co-owners to buy out their shares of the apartment. ■ All owners agree that the apartment is sold and the proceeds are divided proportionally between everyone. ■ The apartment is forcibly sold through the court if the owners fail to reach an amicable agreement. Of course, in this case, this is not beneficial for the owners, because the apartment will be sold at auction, which means it will hardly be possible to get the full price for it. Unfortunately, the law does not have a mechanism to prevent the division of joint property. Therefore, even if one of the co-owners with the smallest share of the apartment wants to sell it, he has all the rights to do so.
Is a privatized apartment subject to division during a divorce?
It is necessary to collect evidence that the person has lost his right to live in the municipal square. We will have to collect witnesses who will confirm that the person is only registered and does not live in the apartment. Or a person leads an immoral lifestyle, and his actions threaten others and can also lead to damage to municipal property.
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Any property acquired and registered before marriage is not subject to division, as it is considered personal. Even if the second spouse registers in this residential area after marriage, he will not acquire any property rights.
