“Tactics for defending the defendant when allocating a share in kind for a residential building”

The legal topic is very complex, but in this article we will try to answer the question “Allocate a share in kind in a private house in 2020.” Of course, if you still have questions, you can consult with lawyers online for free directly on the website.

In the event that there are disputes around the apartment and no one wants to give up, which is why there is practically no chance of selling the share through the right of first refusal, the owner, who wants to receive money in exchange for the share, has the right to demand its allocation. The law stipulates that the allocation is made in kind - that is, the allocated person must receive clearly defined square meters in the apartment.

Allocation of a share in a private house in kind in 2020

In this case, the procedure for allocating a share in kind is practiced. In 2020, such a procedure will be possible both pre-trial and through the court. There are a number of features that characterize this procedure. All of these need to be dealt with first. The legislation defines the issue of allocating a share in a residential building in kind in sufficient detail.

An example of highlighting a natural share

Preparation of technical documentation is necessary to make changes to the cadastral registration information; it is with the help of the technical plan that it will be possible to obtain a cadastral passport for the allocated premises.

Co-owners of a shared apartment cannot live together in the same area without conflicts. Often a similar situation arises if one of the cohabitants has bad habits.
Housing is in common ownership of a certain number of people who are strangers to each other. It also happens that forced neighbors sometimes exchange malicious actions.
Co-owners wish to independently manage their own property.
The owner prefers to sell his share by receiving a certain amount of money for it from other co-owners or, alternatively, by selling it to a third party.

Allocation of a share in a residential building by mutual agreement of the parties

If agreement is reached between all owners, it is possible to divide the property into equal shares between them.

In this case, the algorithm of actions will be as follows:

the first step is to determine what portion will be allocated to each;
if there is no technical passport for the property, then you will need to order it from the BTI department;
redevelop a residential property to form an isolated premises, which can later be registered as a share. At this stage, a number of approvals will be required, but if the share has already been allocated, then it is skipped;
After the redevelopment, technical documentation (passport) for the isolated premises is drawn up. The latter is carried out within the framework of a contractual relationship with a cadastral engineer who has a valid license to perform such work. Today such an agreement can be concluded electronically. But it is sealed with an electronic signature;
at the next stage, a written agreement on the allocation of a share in kind is concluded with all owners of the property. Here, a rather difficult point is determining the cost of the premises; in rare cases, it is possible to come to an agreement on the proportionality of the share. In this case, the amount of compensation is agreed upon, which is necessarily stated in the agreement. Copies of the agreement must correspond to the number of owners, each of whom is personally signed by them. No notarization is required. Another copy, signed by all owners, is left for the registration authority.
the agreement concluded between the owners is best certified by a notary;
After a partition, several new ones appear in place of the old object. They need to be registered with the registry office.

A person who has become the owner of an allocated share in kind in a residential building is obliged to register it with the cadastral chamber and formalize ownership of it.

The remaining owners should write statements to Rosreestr stating that it is necessary to make changes to the property record.

ATTENTION! Look at the completed sample agreement on the real division of a residential building by shares:

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Allocation of a share in an apartment in kind: the practice of court decisions

Alternatively, the allocation of a share can be accomplished through the conclusion of a special agreement between the owners of common real estate. If any of the owners refuses to provide their consent, the co-owner intending to receive a personal share has the right to resolve this issue through the court. Meanwhile, experts recommend that such co-owners assess the current situation realistically.

How shares are allocated: features of the procedure

If, for example, we are talking about the division of small-sized housing in an apartment building, then, most likely, the creation of a new full-fledged mini-apartment within its framework will be very problematic. In such circumstances, the court is likely to order financial payment to the applicant of the monetary equivalent of his share by the other owners. As a result, the plaintiff will lose the right to the disputed apartment, and the shares of the other co-owners will increase adequately.

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The last stage is registration of a share of the house in ownership. To do this, you need to contact the Rosreestr authorities and submit the following documents:

Statement from each owner.
Title documents for housing.
An agreement on the allocation of a share in kind or a court decision that has entered into force.
Applicants' passports.
A notarized power of attorney, if the documents are not submitted by the owner.

If a compromise cannot be reached, the parties go to court. After considering the case, one of the following decisions may be made:

The plaintiff agrees to withdraw the claim for the allocation of a share in kind in exchange for material compensation. His ownership right after receiving the money is lost;
The plaintiff does not want compensation, but his share is insignificant. The court compulsorily obliges him to accept the cash equivalent of part of the property;
the first owner does not agree to compensation and there is no evidence that the plaintiff’s share is insignificant. Ownership of a part of the object does not cease.

Registration of changes in ownership rights with Rosreestr authorities

When filing a claim for the allocation of a share of a land plot and a house, in addition to information about the residential premises, the plaintiff must provide information about the territory on which the object is located (cadastral number, intended purpose of the plot, and so on). Additionally, papers are attached to the ground.

When resolving an issue by a court, the court almost without fail orders a judicial construction and technical examination. This examination is usually entrusted by the court to any third-party (not specified by the parties) expert organization or to a specific expert. The expert is responsible for the reliability of his conclusion.

Hello, in this article we will try to answer the question “Allocation of a share in kind in a private house: registration conditions and cost of the procedure in 2020.” You can also consult with lawyers online for free directly on the website.

Real division of home ownership (allocation of shares)

Both described options often become the subject of controversy between citizens who have joint or shared property. Shared ownership can be the result of free will or result from inheritance of property.

Ordinary citizens still do not understand the differences between the two formulations: “shared ownership” and “allocated share.” But the difference is significant; in the first case, the owner cannot dispose of the property at his own discretion; any actions will have to be coordinated. Therefore, allocating a share in an apartment in kind is an important legal process. After its completion, the owner will be able to independently dispose of his part of the property.

Features of shared ownership

To own property means to be able to use it for one’s own purposes, for example, to sell, give as gifts and perform other operations.

The right to own property can arise for various reasons. A prerequisite for this is the registration of property with the Companies House .

Shared property is movable and immovable objects for which ownership can be registered simultaneously with several individuals. All owners have the right to dispose of their shares at their own discretion.

According to the legislation of the Russian Federation, real estate can belong to several citizens at the same time. This right is called common property.

Regardless of the size of the share, all owners of residential space have equal rights when alienating real estate. Consequently, each owner has the right to use his share at his own discretion.

Primary requirements:

Property can be owned by several individuals at the same time. The size of each share must be established legally. If the property was received by testamentary disposition, then the document records the size of the share of each heir. By default, shares are distributed equally.
Selling, renting out and performing other operations with a residential property is permitted only with the consent of all owners.
If the property is used for the purpose of making a profit (for example, a cafe is opened), then the proceeds must be divided in equal shares between all owners.
The priority right to purchase the share of one owner is vested first of all in other co-owners, and only then in other applicants.

Attention: disputes must be resolved peacefully, formalizing an agreement is allowed.
If it is not possible to reach an agreement, then controversial issues are resolved in court.

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Possible problems

Individuals who own one object often cannot reach mutual agreement. For this reason, partition is carried out through judicial proceedings .

To allocate a share, a specialist is invited to the site, who issues an opinion on the possibility of carrying out the operation.

Division is an operation to allocate the share of each individual who has ownership of the living space.

It is very important that after division the property is suitable for habitation. There should be a separate entrance, a room for a bathroom and a kitchen.

If one of the owners is unwilling to make any compromises and provided that his share is insignificant, the individual may be deprived of ownership rights. In this case, he will be paid a monetary reward.

Allocation of shares in a purchased apartment

There are several ways to allocate part of the common shared ownership in an apartment. Each of them is actively used in the lives of ordinary citizens, so let’s take a closer look at both options.

What does it mean to allocate a share in kind in an apartment and possible difficulties

It often becomes difficult to carry out such a procedure with an apartment, since it is impossible to fulfill all the listed requirements. Most often, allocation is possible if the apartment is located on the ground floor and has a significant living area. To do this, you need to coordinate the redevelopment and draw up technical documentation in the BTI.

• residential premises must be physically separated from other premises; • it must be suitable for habitation and comply with the technical and sanitary standards established in this case; • the premises must also belong to the category of immovable objects, that is, its movement to another place cannot be done without prejudice to its purpose; • physical separation of the premises from the rest of the house should not lead to a violation of the legal rights of other owners.

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But if there is an opportunity to physically separate a part of the house that belongs to you (allocation of a share of property in kind), then you should definitely take advantage of this opportunity. In this case, it will be possible to sell part of the house as an independent object.

Selling a share in a house in 2020

There are two types of property – divisible or indivisible. In the case of divisible objects, problems most often do not arise; they are distributed among citizens. The situation is different with indivisible objects, which undoubtedly is a house.

determination by the court of the order of use of living space and utility rooms (bathroom, kitchen, storage room);
determining the share of each party for concluding a marriage contract between spouses;
division of property of former spouses;
performing legally significant actions with property allocated in kind (donate, sell, bequeath) without the consent of other owners.

Tactics for defending the defendant when allocating a share in kind for a residential building

Order judicial representation in arbitration and district courts Order Often in practice, situations occur in which the owners of a residential building are in extremely hostile relations, the result of which is a legal dispute over the allocation of the share of one of the owners in kind.

First, let us dwell on the difference between the concepts of dividing a residential building and allocating shares in kind from it. In accordance with Art. 252 of the Civil Code of the Russian Federation, division of common shared property is possible by agreement between the owners. Hence, the division of a residential building, which is in common shared ownership, presupposes the conclusion between the parties of an agreement on the division of the residential building and the absence of any controversial issues between the owners. The allocation of a share in kind to a residential building presupposes the existence of a dispute between the owners, in which they cannot agree on an option for dividing the residential building. In this case, one of the owners files a claim in court for the allocation in kind of his share from the right of common shared ownership of the residential building. In this regard, this article is devoted to the practical aspects of the Defendant’s defense tactics when the Plaintiff allocates in kind his share from the right of common shared ownership of a residential building.

So, let’s imagine the situation that you are the defendant in a legal dispute with the subject indicated above. First of all, you need to carefully read the statement of claim and the documents attached to it in order to understand what the plaintiff demands from the court and on what evidence he bases his legal position. Next, you choose the form of protecting your rights: on your own or with the involvement of a professional lawyer who has practical experience in participating in litigation. It would seem that if there is a need to contact a professional, then why is this article needed, because I don’t need to do anything? In my opinion, this type of litigation includes three components: domestic (who actually uses which premises, where communications are, etc.), legal (drawing up competent procedural documents, formulating questions before an expert, etc.), expert (involvement of an expert in the field of construction and technical expertise). Besides, as the saying goes, if you want something done well, do it yourself. I don’t mean, of course, that the Defendant should become a lawyer and defend his rights himself, there simply won’t be enough time for that, but monitoring the lawyer’s work and helping him if he missed something is extremely necessary.

In this regard, we will dwell on those aspects that can serve as the basis for defense tactics in this type of dispute.

1) Pre-trial dispute resolution procedure.

The law, represented by the Civil Code of the Russian Federation, obliges the plaintiff to comply with the pre-trial procedure for resolving the dispute. This means that, along with his statement of claim, the plaintiff was obliged to provide evidence confirming his compliance with the specified procedure. What documents are the specified evidence? These may include various types of incoming documents (applications, notifications, letters, claims, etc.) sent by the plaintiff to the defendant by mail or handed to him by hand. In addition, evidence of compliance with the pre-trial order may include the defendant’s outgoing documents (refusal, consent, etc.). Moreover, in the absence of these documents, judicial practice suggests that the court should still consider the case on its merits, and not leave the statement of claim without consideration. Thus, this circumstance may be indicated as an objection to the statement of claim, and may also be the basis for postponing the court hearing to allow the parties to resolve the dispute peacefully.

2) Construction and technical expertise.

In disputes about the allocation of a share in kind for a residential building, an expert is always involved as a person with special knowledge in the field of construction. And indeed, conducting a construction and technical examination is practically “mandatory” when the court makes a decision in such cases.

As you know, there are pre-trial and judicial examinations. What are their differences and what is their evidentiary value? A pre-trial examination is an expert examination of a specialist, conducted by him on the basis of a citizen’s appeal on the questions raised by him. In practice, it is accepted by the court as significant evidence in the case in the absence of other evidence. A forensic examination is an expert examination of a specialist, conducted by him on the basis of a court ruling ordering an examination on issues that the court posed to the expert. In practice, it is accepted by the court as the main evidence in the case and in most cases has decisive evidentiary value.

The correct behavior of the plaintiff in these cases is to appoint an examination along with filing a statement of claim, after which he will have the opportunity to clarify his claims. If the examination was carried out pre-trial, you need to carefully analyze it to understand what options were proposed by the expert and whether at least one of these options suits you. If the examination was carried out clearly in “protection” of the rights and legitimate interests of the Plaintiff, it is necessary to file a petition for the appointment of a judicial construction and technical examination, indicating the expert organization and the questions that you want to pose to the expert.

3) Questions that the expert must answer.

A very important point in these disputes is asking competent questions to the expert. In this regard, I will try to give an approximate list of them:

a) Is it possible to separate a share in kind from the right of common shared ownership of a residential building... located at the address... without disproportionate damage to its technical condition and economic purpose?
b) Offer options for dividing (at least two) a residential building... located at the address... for separation in kind from the right of common shared ownership of a residential building by... ideal share?
c) Determine the cost of construction work for the reconstruction of a residential building in accordance with the proposed division options?
d) Determine, if there are deviations in the options for dividing a residential building... located at the address... of ideal shares from the actually allocated ones, the amount of compensation payments in each of the proposed options in accordance with the cadastral value of the property?

4) The established procedure for using a residential building.

I draw your attention to the fact that when conducting a construction and technical examination, the established procedure for using a residential building must be taken into account. So, when writing objections and when raising questions before an expert, the court must pay special attention to this.

5) Compensation payments.

Almost always, the options for dividing a residential building proposed by an expert do not correspond in area to the ideal allocated shares. In this case, the question will arise of paying compensation to the party in the case who receives an actual share that is less than the ideal one. On what basis will the said compensation be determined? There are two options here: take the cadastral value of a residential building as a basis, or conduct an independent examination to determine the market value of a residential building.

6) Distribution of expenses of the parties for the reconstruction of a residential building.

The costs of reconstructing a residential building are divided between the parties in proportion to their ideal share, based on the obligation of each owner to maintain the residential building in proportion to their share.

7) The issue of supplying communications (gas supply, electricity supply, water supply, sewerage).

The costs of establishing communications are divided between the parties in proportion to the ideal share, based on projects and estimates submitted by organizations authorized to carry out this type of work.

Author of the article: lawyer of the TRIBUN Legal Bureau Samokhin S.V.

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Procedure for allocating a share in kind from common shared property 2020: sample claim and agreement

If the disputed property costs no more than 50 thousand rubles, the magistrate’s court will be able to allocate a share to the personal property of citizens. If there are documents confirming a high price, the proceedings will take place in the district court.

What can you do with the allocated share?

A property may be jointly owned by several citizens at the same time. Any of the owners may demand from the remaining co-owners the allocation of a share in kind in court. This means that the plaintiff will be assigned one of the rooms. The part allocated in kind must be independent from the rest of the home.

Signatures of the parties to the agreement with transcript. Please note that in order to become the owner of a share under an agreement, it must be registered in the register of individuals, and only from the moment of registration it comes into legal force. If an agreement on determining the shares has not been signed, then they are considered equal.

The division in this case involves the allocation of an isolated room for one or several owners with the right to a common living area, for example, in a multi-room apartment, one of the residents is allocated a room. But there is also common joint property: bathroom, kitchen, hallway.

Section on shares of communal apartment

For these purposes, it is necessary to distinguish between the division of common property and the allocation of a share from this property. Regarding the allocation, it is assumed that there will be no termination of the common ownership rights of other co-owners.

A share is a certain amount of square meters assigned to the owner. This is in a sense an abstraction that exists only in documents. In order for it to become “tangible”, it must be allocated in kind: the allocated share in an apartment is the linking of square meters of the abstract part to a specific room (or rooms). After allocating this part, the owner has the right to fully occupy this premises as if it were his own.

List of documents

The list of documents required in this situation can only be approximate. The latter is due to the individual characteristics of each individual case.

Thus, for the work of experts, the following documents are required:

technical passport for a house or other residential premises;
title documents – these are certificates of ownership, inheritance, cadastral documents for land;
documents confirming and reflecting the actual use of the object and land.

An expert is working in a civil case, which will require a number of additional documents:

copies of the claim against other owners, if any, their counterclaims, as well as documents attached to the claim;
the judge’s determination to order an examination and copies of the protocols of already conducted examinations;
house book, reflecting other residents of the premises.

Watch the video. Common shared ownership and allocation of shares in kind:

How to allocate a share in an apartment: step-by-step instructions

By definition, if everyone is allocated a strictly defined part (for example, half or a third), then the property is called shared ownership. If this is not indicated - joint. But in part 3 of the mentioned article there is a clause: joint property is established only by law. Equity is usually preferred. In the extract from the Unified State Register (or in already outdated certificates), the size of the share is indicated in the form of an ordinary fraction for each of the owners.

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What it is

First of all, it is necessary to confirm the right of ownership in general. These documents are a purchase and sale agreement executed in the name of two spouses, a certificate of inheritance, etc.
Next, attach the registered agreement or court decision establishing the size of the property. If it is decided to divide the property equally, we skip this step.

Allocation of a share in a private house in kind in 2020

Often this is the only way to stop conflicts between co-owners and resolve property disputes legally. The allocation of a share in kind in a residential building involves the separation of a certain part of the property from the whole. Several independent premises are being created. The process is carried out in two ways - voluntarily with the signing of an agreement, or through judicial proceedings. The process of allocating a share must be carried out legally, in accordance with current regulations.

An example of highlighting a natural share

Currently, a residential building provides for the presence of only one living space (apartment). If a residential building contains several residential premises (apartments), then the house takes on the status of an apartment building.

The owners can agree among themselves and sign an agreement on the allocation of each part of the housing in kind. Before formalizing the agreement, the family contacts an independent appraiser. Based on the obtained expertise, all participating parties calculate the cost of the allocated share. If it is not possible to allocate a part in reality, then the person who wishes to live separately, with his consent, the remaining owners:

Some property can be divided in kind, separating a part from the whole property that its owner can subsequently use. To do this, a claim must be filed in court for the allocation of a share in kind.

Statement of claim for the allocation of a share in kind in 2020

If necessary, remodel or remodel to create an isolated living space that will stand out. For reconstruction and redevelopment it is necessary to obtain the necessary permits and approvals.

Taking into account the above, we will try to determine what is meant by the share of a residential building. According to the provisions of Chapter 16 of the Civil Code of the Russian Federation, the definition of shares relates to the institution of property, in particular Art. 244 of the Civil Code of the Russian Federation distinguishes the concept of shared ownership, when property is in common ownership of several persons, but with the definition of shares.

Donating 1/2 share of a house is also possible when we are talking about two owners of this property. As a rule, we can also talk about common joint property of spouses when one of them wants to donate his part to another person. In this case, it is more expedient to either allocate your share from the common property (Article 252 of the Civil Code of the Russian Federation) or obtain the notarized consent of the second spouse to complete such a transaction.

Division of real estate in kind

All the basic rules for the division of spouses’ property, as well as the allocation of shares in kind from it, are defined in Art. 252, 254 of the Civil Code of the Russian Federation. This also applies to real estate (inextricably linked with land - Article 130 of the Civil Code of the Russian Federation).

When considering this issue, let us dwell on such key points as:

The division of jointly owned property, as well as the allocation of a share in kind, can be carried out only after determining the share of each of the participants in such property.
In the absence of an appropriate agreement, the shares of the spouses are recognized as equal.
If it is impossible to do this by force of law or without proportionate damage to all property, then the applicant is paid the value of his share (if he agrees to this).
If the allocated property is disproportionate to the applicant’s share, it is also expected that he will pay compensation to other property participants.
Upon receipt of appropriate compensation or the value of the share, these co-owners lose their rights to the property.
It is necessary to prepare new documents with the registration authority.

As applied to real estate, the rules on the division of property in kind do not apply to apartments (it is impossible to create separate utility rooms, a bathroom, and a kitchen for each of the co-owners). For individual residential buildings (or households), this is possible - you need to make a separate entrance, get a new address, and install additional communications.

It is also necessary to note in this matter land plots, which also relate to real estate. The allocation of their share in kind is possible and does not raise many questions.