Share in an apartment. The difference between a room and a share in an apartment How many shares are in an apartment?

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It happens that the owners of one apartment turn out to be strangers to each other.- a small part of the premises can pass to a stranger as a gift or by will. Usually the owner of a smaller part of the apartment is not against selling it, especially if he does not live in it - but at an inflated price. Is there a chance to oblige the intractable co-owner to sell his share at market value? This possibility exists, and the Supreme Court once again reminded us of it. The Supreme Court explained under what conditions the owner of the majority of the residential premises can forcibly buy out their insignificant share in the apartment from other owners.

The apartment was divided in court

If owners need to divide shares in an apartment, they have two ways: negotiate and enter into an agreement on the division of common property, or go to court to divide the property. Both possibilities are provided for in Art. 252 Civil Code. Sometimes it is impossible to allocate a share for one reason or another - for example, when it is too small. Then the owner has the right to receive monetary compensation from other property owners - of course, if he agrees to this. However, situations are also possible when the owner may be forced to take money, although he would prefer to retain part of the living space.

This usually happens when gift agreements are drawn up or real estate is transferred to several heirs - and on the one hand, the owners of the shares are persons who are related or family relationships and jointly use this property, and on the other hand, someone who has a small share in the common property and does not actually use the property, explains Oksana Stupina, lawyer. A similar situation arose in the case of the Kryuchkov spouses*, which reached the Supreme Court.

Ivan and Varvara Kryuchkov* and their minor daughter lived in a three-ruble apartment with an area of ​​66.4 square meters. m. Once the apartment was privatized equally between Ivan Kryuchkov and his mother, but later the mother decided to sell her share. As a result, the family, together with another relative (the owner of a 1/12 share), was left with only half of the apartment - in fact, they occupied two isolated rooms. The other half of the apartment belonged to Vladimir Zakharchenko, who bought half of the housing, as well as Inna Novichenkova* and Olga Zakharchenko*, to whom the man transferred a third of his share through a gift agreement.

Immediately after half of the apartment ended up in the hands of strangers, the Kryuchkovs wanted to take over the entire living space for themselves. The new owners themselves proposed this option, but the parties did not agree on the price. Since it was not possible to agree on how to use the apartment, the family decided to proceed through the courts. In the lawsuit sent to, they asked to recognize Novichenkova and Zakharchenko’s shares in the apartment as insignificant (each of them owned 1/6 of the apartment), to terminate their ownership rights, to pay them the market value of the shares, and also to recognize the plaintiffs’ minor daughter’s right of ownership to those belonging to the defendants shares.

The applicants were rejected at first instance. On appeal, (case No. 33-14211/2016), on the contrary, they decided that the demands were well founded and granted the claim. They came to the conclusion that the share of each of the defendants is insignificant; it is not possible to provide them with isolated living quarters that would be proportionate to their share. The parties failed to agree on the right to use the apartment. At the same time, the defendants, unlike the plaintiffs, are not registered in it, they live in another place, and they have another living space in their property. This is enough to satisfy the Kryuchkovs’ demands, the appeal concluded. The defendants tried to challenge the decision of the Moscow City Court in the Supreme Court.

When can the owner be forced to sell his share?

The defendants insisted: they needed the apartment, and the value of the share presented by the appraiser was underestimated. True, for some reason they did not ask for an examination and made no attempt to prove that the cost should be different.

The panel for civil disputes, chaired by a judge, supported the appeal (case No. 5-КГ17-51). In the ruling, the court recalled paragraph 4 of Art. 252 of the Civil Code: it explains when the owner of a small share can be forced to sell it at market value, even if he does not agree to such a scenario. For this, in addition to the insignificance of the share, and what is “insignificance”, according to Alexandra Latyev, partner, no one defined it, it’s just that “everyone understands that 1/3 is a significant share, and 1/100 is an insignificant share,” two more conditions must be simultaneously met. Firstly, there must be no possibility of real allotment of shares. And secondly, the owner should not be interested in using the common property.

Whether the owner needs a share or not will have to be decided on a case-by-case basis, the board noted. It is necessary to pay attention to the age of the person in question, his state of health, profession, the presence of children and other circumstances, the Supreme Court referred to paragraph 36 of the Plenum of the Supreme Court and the Supreme Arbitration Court of July 1, 1996 No. 8 “On some issues related using part one of the Civil Code of the Russian Federation."

How to confirm the lack of interest in the use of housing from the “extra” owner?

1) Provide data on whether this person has other real estate (this can be confirmed by an extract from the Unified State Register of Real Estate), indicate that he never used (did not reside) the disputed property.

2) Interested owners can submit documents confirming that they bear all costs of maintaining the disputed property.

3) The court can also evaluate the relationship of the parties (the presence of kinship and family ties) in order to assess the prospects and possibility of joint use of common property.

4) The possibility of allocating a share in kind is assessed based on the total area of ​​the disputed object, the number of premises (or rooms) and the possibility of allocating an isolated room, the design features of the object that determine the possibility of its redevelopment. Therefore, the claim of interested co-owners can be satisfied only if the share of the “extra” owner is so small that it cannot be allocated to a separate premises, or the design of the premises itself does not allow the allocation of the share so that the owner can fully exercise his right of ownership.

If the court comes to the conclusion that all conditions are met and the parties cannot come to an agreement on the procedure for using the common property, then the claim filed on the basis of paragraph. 2 clause 4 art. 252 of the Civil Code of the Russian Federation will be satisfied.

Oksana Stupina, lawyer at Khrenov and Partners

Having studied the circumstances of the dispute, the Supreme Court upheld the decision of the Moscow City Court without change.

Considering that in total the “insignificant share” of the two co-owners is 1/3 of the apartment or a little more than 22 square meters. meters in a Moscow apartment, the conclusions of the courts, at first glance, may be shocking, notes Elena Poleonova, partner of the legal bureau. Not everything is clear in the case, she believes: the courts came to the conclusion that the claim was justified, having assessed the circumstances of the dispute: the fact that it is impossible to provide isolated premises in the apartment to all participants in shared ownership (the apartment consists of three living rooms, and there are 7 co-owners), that the defendants not relatives, do not actually live in the living space, etc. “But it is not clear to me why two more owners, who respectively own shares in the amount of 1/6 and 1/12, were not involved in the case - after all, the decision on the dispute affects their rights as well,” she notes. The fact that the plaintiffs took a very active position, while the defendants, on the contrary, did not even support the argument about revising the market value of the share with evidence, also played a role in the case.

Almost any participant in shared ownership may become a defendant in such a dispute. “In my opinion, controversial issues regarding the use of an apartment that is in shared ownership are best resolved pre-trial. This requires the active participation of all owners interested in resolving the situation. A court decision always determines the winning and losing side, and a legal dispute always costs time, money and nerves,” says Elena Poleonova.

“If your dispute has already reached the court, then you need to approach the defense of your position with all responsibility.
To do this, you need to obtain and promptly provide the court with evidence confirming your arguments and refuting your opponent’s arguments, declare the appointment of examinations, call and interrogate witnesses, and demand evidence (if the law does not give you the right to obtain it yourself).
All this must be done when considering the case in the first instance. To be successful, a litigant must be active and defend himself competently."

Elena Poleonova, partner of the law bureau "Olevinsky, Buyukyan and Partners"

*The names and surnames of the participants in the process have been changed by the editors

Lawyers say that the country is having difficulty solving problems in the area of ​​so-called small shares of real estate. Owners of 1/6 or 1/8 of an apartment or plot often find themselves tied hand and foot. They can neither use their share nor sell it.

Is there a solution?

A spool is small, but expensive - the true meaning of the Russian proverb was revealed to one of the Muscovites 1.5 years ago. The owner of treasured residential space in the capital spent more than 90 thousand rubles on legal expenses.

All this time, the woman tried to oblige her cousin to buy from her 1/6 of the apartment they both owned.

She tried to sell to other owners in this apartment, who in this situation explained that they were not happy with this, since they would not live there, and accordingly, there was simply no point in purchasing such a share from her. She didn’t know how to proceed in such a situation.

Hundreds of thousands of Russians are in similar confusion today - all those who inherited a small part of real estate (1/6 or 1/8).

It is impossible to live on these square meters, but there is no one to sell them to. Of course, the most obvious option is to make an offer to the main owner, but, as lawyers explain, there are no guarantees that he will agree.

Must I buy one? Well, what if he doesn’t have money? If, simply, the family is retired or has many children? After all, they do not have the appropriate income, even to buy back this small microshare.

Indeed, selling a share in an apartment or a plot of land to someone else is an option bordering on fantasy, because the new owners will not be able to use the property, which means there is “0” interest in such a purchase.

However, in cities with a population of over a million people, there may be people willing to buy a share, for example, for registration, although the transaction will have to be executed with special care.

From January 1, 2016, the contract for the sale of a share must be drawn up by a notary. This is necessary so that the owners know what is for sale and that Art. 250 of the Civil Code of the Russian Federation: if a person sells a share, he must first offer to buy it to the neighbor of this share. Unless he refuses or he doesn’t have the money for it, only then can a deal be made.

With all this, it is unlikely that you will be able to sell your share at the market price. The cost of a share will never be worth as much as part of an apartment.

The difference, depending on the object, can range from 30 to 50%. Still, the most profitable option is to try to negotiate with your neighbor and offer an exchange option that suits both.

Concept common property arises when one object is owned by several persons (both individuals and legal entities).

Reasons for occurrence and types

This type of property arises due to various reasons: official registration of marriage; where several people live; creating a farm where there are several owners, etc. - in other words, when two or more people take possession of property that cannot be divided into several parts either by force of law or without changing its purpose.

Two types of common property rights can be distinguished, which differ in the essence of ownership and are regulated by different rules:

• shared ownership– a type of property that is characterized by the allocation of a certain share in the ownership of property, both movable and immovable;
• joint ownership– when the shares of property ownership are not determined in advance.

Share in the ownership of an apartment - what is it?

When an apartment becomes the property of several persons and the shares of ownership are agreed upon in advance, we are talking about shared ownership of the apartment. In such a situation, housing can only be disposed of with the consent of all owners, regardless of the size of the share.

It should be understood that if all the owners live on the territory of the apartment, then it is not possible to actually divide the area in accordance with the shares of each according to the documents. In this case, the co-owners try to come to an agreement and divide the living space, taking into account the life circumstances and needs of each. If this issue cannot be resolved peacefully, the owners go to court, where the procedure for using the living space will be determined. If it is necessary to change the order due to any new circumstances (for example, the birth of a child), the court may revise the decision that was made earlier.

Regulatory acts that regulate issues of shared ownership of an apartment

In order to determine the procedure for use and how co-owners can dispose of their shares, one should refer to the Civil Code of the Russian Federation (Part One) dated November 30, 1994 N-51 Federal Law. Chapter 16 is entirely devoted to the regulation of common property rights.

If we are specifically interested in the right of shared ownership in an apartment, we should pay attention to the following articles:

• Art. 245. The article states that if shares in common property are not determined in advance, then the shares will be considered equal. Also, when investing in improving the condition of the property, the size of the share can increase in proportion to the investment.
• Art. 246. Shared property can be disposed of only with the consent of the co-owners, while any of the owners has the right, etc. your share.
• Art. 247. Shareholders have the right to use the property by agreement of all co-shareholders. Each owner has the right to receive his share for use; if in fact this is not possible, he has the right to count on compensation.
• Art. 248. Everything that the owners can receive as a result of the exploitation of shared property (income, fruits, etc.) is divided between the owners according to their shares, unless there are other agreements.
• Art. 249. Expenses for the maintenance of common shared property - all this is also divided between the co-owners in accordance with the size of the shares.
• Art. 250. This article describes the right of co-owners to preference in purchasing a share in common shared ownership, provided that the sale is not through a public auction.
• Art. 251. Upon sale, the share passes into ownership from the date of conclusion of the agreement, unless other conditions are specified in the agreement.
• Art. 252. The division of property can take place by agreement of all co-shareholders. Any of the co-owners has the right to allocate his share either by agreement of all owners or by court decision. If the allocation or division of property is not possible or is prohibited by law, then the shareholder has the right to compensation, after receiving which he is deprived of his property rights.
• Art. 255. The creditor has the right to apply to the court, if one of the owners in common property cannot pay off the debt with the property that he has, to collect the debtor’s share, while the share can be sold both to the remaining property owners and at public auction, and The proceeds from the process will be used to pay off debts.

Recently, changes have affected only the 1st paragraph of Article 250 of the Civil Code of the Russian Federation (the changes entered into force on March 1, 2015), which talks about the pre-emptive right to purchase shares in common property by co-owners. Points have been added in which this advantage is abolished when selling property with, or more precisely, a share.

Main problems: how to divide, sell or rent out a share in an apartment

So, the problems faced by people who own shared property can be divided into several types: I want to have my own room, I want to sell or rent out my share. Let's look at everything in order.

I want to have my own room

If you not only own a share in the apartment, but you also have to live in it with other shareholders, the question arises: how to divide the area so that everyone has their own corner. This issue is regulated by law and is described in Art. 245 of the Civil Code of the Russian Federation - on the procedure for using residential premises. The first option for determining order is peaceful, because it is better to come to an amicable agreement with your neighbors and decide who will live and where.

Healthy! Even if you have agreed on everything with other residents, it is best to formalize the procedure for use with a notary, so that later you do not have to prove who said what.

Another option, when it is not possible to resolve the residence issue peacefully, is to go to court. The court will take into account all the circumstances and divide the rooms between the owners, as it considers it correct, not always taking into account the size of the owners’ shares. If one owner has a family and the second is single, then the first owner will get a larger room.

Do I want to sell my share?

When cohabitation does not suit one or more property owners, and they would like to receive their share in monetary terms, the question arises of selling a share in a common apartment. In such a situation, there are several possible solutions:

1. If only one of the owners declares the sale of a share, then the remaining residents have an advantage over others who wish to purchase, and in this case it is necessary to obtain their consent. This right is regulated by Article 250 of the Civil Code of the Russian Federation.
2. If several co-owners would like to sell the entire property, but one, who has a small share that cannot be realistically allocated, does not agree, then you can go to court (based on paragraph 4 of Article 252 of the Civil Code of the Russian Federation), where permission to sell the apartment without consent will be obtained. protester,” with the condition of paying him compensation in the amount of his share of the total cost of the apartment.
3. If all co-owners are ready to leave, then they can simply sell the apartment and each receive their share.

It is important to know that the sale of a share in an apartment is much lower than the cost of the same share if the apartment is sold as a whole. The price difference can reach 15-25%.

How to submit your part?

Everything here is very simple - renting out or registering someone on your part of the living space is possible only with the consent of all owners; this issue is regulated on the basis of Article 246 of the Civil Code of the Russian Federation. If there is a need to register a minor child, then this can be done without the permission of other owners, since children are registered at the place of registration of one of the parents (Article 70 of the Housing Code of the Russian Federation, norms of the Family Code)

Right of common joint property of spouses

In order for the right of joint ownership to arise between a man and a woman, a marriage must be officially registered. Property acquired during marriage becomes the joint property of the spouses, where each has an equal share. A different procedure can be established provided that a marriage contract has been signed, in which, with the consent of the husband and wife, ownership rights regarding the property of each of them are designated. Issues arising during the use and disposal of joint property are regulated by Article 256 of the Civil Code of the Russian Federation and Articles 33-39 of the RF IC.

The right of joint use includes property that was acquired by spouses during marriage, but it is important to know that this right does not apply to:

• acquired before marriage;
• resulting from ;
• personal belongings.

All this is the separate property of the spouses.

For information: the individual property of one of the spouses can be recognized as joint property, provided that there were investments in it during the marriage, which greatly increased the value of the property (repairs, reconstruction).

Although when making transactions with joint property, written or notarized permission of both spouses is not required (based on the fact that both spouses agree to the transaction and nothing else has been proven), but spouses without a notary can dispose of real estate or objects that require registration and/or notarization certified consent of the other spouse cannot according to Art. 35 IC RF.

The division of property can be carried out both during the marriage and upon its dissolution. This process is regulated by Articles 38 and 39 of the RF IC. In the best case, the division occurs peacefully, when the owners agree on who will get what. If you cannot reach an agreement on your own, the only way out is to go to court. The court will establish the division of property in equal shares, so that both spouses receive equal shares of the property in value. In the event that the shares are not equal, the spouse with the smaller share is awarded monetary or other compensation.

A very important point is not only the acquisition of property during the marriage, but also with what funds it was acquired, because this can greatly influence the court's decision on division.

Example No. 1

The wife sued her husband for the division of an apartment that was acquired during the marriage.

The court found that this apartment was purchased with funds resulting from the sale of the husband's premarital property, which are not common property. In view of this fact, the court decided that the apartment was not subject to division, because is not joint property.

Example No. 2

The wife applied to the judicial authorities for the division of property, including an apartment, after the divorce.

The court stated that this apartment was not purchased by the spouses using common funds, but was given to the husband as a military serviceman; accordingly, this property is not common and joint property and is not subject to division.

How is the division of real estate in shared ownership carried out?

The video shows the order, procedure and features of the division of property that belongs to more than one owner.

You want to sell or buy a share in the apartment, but there are concerns about whether everything will be clean and fair, because in addition to you, other people, sometimes complete strangers, will own this apartment. And these fears are not in vain.

Sale and purchase of a share in an apartment- some of the most complex real estate transactions and here you can find many pitfalls. The most controversial issues relate to the relationship between co-owners (co-shareholders), possible obstacles to the purchase and sale of an apartment, as well as the impossibility of determining the actual territory belonging to each shareholder. In addition, difficulties may arise with the correct execution of the agreement and the option when one of the share owners gives away his share not as a sale, but as a “donation”.

All risks when buying or selling a share in an apartment must be considered in advance, so as not to fight for survival at the last moment, being left “without a corner.”

First, let's turn to the wording - a share in an apartment - what it is, does it have any boundaries and why can it be sold, bought and even given as a gift.

What is a share in an apartment?

A share in an apartment, legally speaking, is a share in the ownership of the apartment. According to the Civil Code of the Russian Federation, real estate can be common property if it is property owned by two or more people. Common property can be registered as joint property - when the owners do not determine their shares in it, but there is a variant of shared ownership, when these shares are assigned to each of the owners.

Common example of joint ownership: an apartment that the spouses bought together, however, it is “registered” to one person. And despite this, any transactions in relation to the apartment can only be made with the consent of both spouses, which must be notarized. The same married couple can re-register this property as shared property, determining the size of shares for each. In the second case, each spouse has the right to dispose of their own share in the apartment, without relying on the consent of the second owner.

Therefore, a share in an apartment can be called a part in the ownership of the apartment. And this is a kind of invisible territory that cannot be assigned to any room or even part of it. We are talking exclusively about the size of this part, which is expressed fractionally, that is, you can own, say, 1/2 or 1/10 of the apartment.

Buying a share is now very popular in the real estate market, which is not difficult to explain, because it is a good investment. Another reason is that when it is not possible to buy a whole apartment, it is easier to find a share of the money. In the future, you can sell it or, over time, buy the entire apartment.

Who can qualify to purchase first?

The next important point in the case of selling a share in an apartment is the rule for determining the preemptive purchase of a share. Its meaning is that each shareholder, wanting to sell his part of the apartment, must first of all offer it to other co-owners. It is necessary to notify them in writing of your desire to sell the share, thereby giving them the opportunity to buy it back before it can “go away” to someone else. One month is given to make a decision on purchasing a share, or more precisely, exactly 30 days. If none of the co-owners has indicated their desire to buy out this share, it may be put up for free sale.

And this is where we come across the first “stone”. What could be the problem? The seller may encounter this, and the difficulty arises in the very issue of notifying other owners.

If the shareholder cannot be found

Sometimes it’s not so easy to find all the shareholders. This issue is resolved by having evidence that the notice was sent to all known addresses. If information about the residence of a participant in shared ownership is completely missing, it is necessary to officially confirm this with a certificate from the administration, address bureau, or resort to other methods of confirming the impossibility of contacting a particular shareholder.

A situation may arise when one of the participants in shared ownership deliberately avoided receiving a notification. There are no laws that make it possible to force a co-sharer to receive notice. There is a workaround for this, which is very popular among realtors. The share in the apartment is formalized under a gift agreement. And in order to give away your share for nothing, agreements between the property participants are not required. The risk for the latter is that in this way a complete stranger may appear in their apartment at any moment.

Another “sore point” of the topic of buying and selling shares in an apartment is the issue of relations between the owners. What is dangerous for both the buyer and those living in the apartment? Often people decide to sell a share out of a desire to harm relatives due to some irreconcilable situation, such as divorce, issues of inheritance or division of property. The seller’s logic is easy to understand, because the person who buys the share has a chance to subsequently buy the entire apartment. And most importantly, buying an apartment in parts is much cheaper, because a share is not valued as much as a separate apartment, if you recalculate the cost per square meter.

The price of a share is usually significantly underestimated. If a room can be bought, for example, for 2.5 million rubles, then for 1/3 of an apartment you can get no more than 1.5 million rubles, that is, a million rubles less, and this is quite significant.

Those who are thinking about purchasing a share need to think carefully and understand why this is being done. If the goal is accommodation, then you need to find out something about your future neighbors. If you want to buy square meters cheaply, you can find yourself in the center of someone’s conflict. If you need to buy a share to register a residence permit, there probably shouldn’t be any problems here. The cheapness of shares relative to room prices is not accidental, and this must be remembered.

What is the risk?

Summing up our thoughts on the topic of buying a share in an apartment, let us ask ourselves once again - what is the risk and how to avoid negative consequences?

Everything must be formalized on the basis of the law, that is, through a purchase and sale agreement. If the seller gives a share as a gift, such a transaction is very risky, because if it is declared invalid, the money will not be returned, because donation is a gratuitous process.

One of the fraudulent schemes is as follows: after the sale of the share, the seller suddenly turns out to be allegedly incompetent, claiming that at the time of the transaction he simply could not control his actions and give an account of his actions. He goes to court and attaches the necessary documents. The court invalidates the transaction and cancels it. The seller moves into his room, and the court obliges him to return the money to the buyer. However, the seller, with all the desire to return the money, may simply not have it!

What should you pay attention to when purchasing?

• Through a gift agreement, a share is given away in order to avoid taxes, and often because other shareholders wanted to buy out this share, but the seller does not want to meet them halfway. This should alert the buyer.
• Discuss all possible problematic issues before concluding a deal. It may be necessary to have a serious conversation with other shareholders. Don't neglect this; in the future it can make your life with them much easier.
• The rules of a joint “hostel” can be agreed upon both orally and in writing, having the agreement certified by a notary.
• Find out as much as possible about the seller's personality, carefully check the documents and pay attention to the most basic things that can help prevent possible risks.