Typically, property sharing issues are considered in the context of a divorce procedure. Meanwhile, the allocation of shares in joint property is a process that has independent legal significance, that is, it is not necessarily a consequence or precedes a divorce.
To date, an agreement on the determination of shares in an apartment is a transaction that is subject to mandatory notarization. And this fact confirms once again the significance of such an agreement.
Allocation of shares
Such a procedure can be carried out both in relation to joint and shared ownership. The latter species is characterized by the fact that it has clear shares. Joint shared ownership - property that cannot be divided in kind into parts.
Today, there are several ways to allocate shares:
- Through a court decision. As a rule, the parties apply to the court if it is not possible to allocate a share in kind or if such a procedure leads to irreparable damage to property. Typically, a person who wishes to allocate a share is assigned monetary compensation, which other homeowners are required to pay.
- Allocation by agreement. It is in such cases that an agreement is signed on the determination of shares in the apartment. However, if individuals fail to reach a decision that satisfies both parties, then they are entitled to go to court.
It should be remembered that highlighting and section are two completely different concepts. In the latter case, during the division, the termination of property rights for one of the parties occurs. The allocation of shares does not entail the termination of property rights.
Document Requirements
Agreement on determination of shares in the apartment: sample, form must have the required blocks, namely:
- full details of the parties, including an identity document, date of birth and information about the place of residence (registration);
- name of the document, place and date of preparation;
- address of the location of housing;
- a brief description of the apartment or house;
- details of title documents;
- cadastral number of housing;
- information on the registration entry in the register of rights to real estate;
- information about the rights of third parties, encumbrances, if any;
- size of shares;
- number of copies of the agreement.
After signing the document, it is mandatory to contact the registration service to draw up an agreement.
How is the share calculated?
Before you agree to sign an agreement on determining the shares in the apartment, it is very important to independently figure out which part is due. The main rule when determining shares is that they are recognized equal (during marriage or equivalent payment for property), unless otherwise provided in regulatory enactments or this is not specified in the agreement.
The simplest example, if there are three owners in the housing, and the area of the apartment is 120 square meters, then they should be divided by 3. That is, the formula will look like this: 120: 3 = 40 square meters is the area that belongs to each owner on common ownership right.
Benefit of an agreement
The Family Code regards both spouses as equal co-owners of all acquired property. Simply put, each of the parties does not have the right to independently alienate the property, without obtaining the consent of the spouse from the spouse. That is, all property is divided 50/50. The situation changes with the advent of children.
In what situations is it rational to conclude an agreement on the determination of shares (samples, forms, forms are presented in the article)? The simplest situation is when housing is purchased on a mortgage, for example, the husband contributes about 70% of the cost, and the wife - 20%, the rest will be paid by credit. But the spouse, who contributed the bulk, understands that in the division of housing, which was acquired in marriage, his share for the apartment will be regarded as 50% anyway. It is in this situation that it is rational to conclude an agreement and immediately determine the shares. At the same time, the parties have the right to independently determine the ratio of shares, not even 50/50, but 2/8, 3/7, and so on.
In the process of registering a mortgage agreement, it is these shares that will be included in the document on the ownership of the apartment. After registration, each of the parties has the right to do with its share what it pleases, give, donate, inherit, sell, and so on.
Maternal capital
Another interesting question is how to divide shares in housing, which is acquired for maternity capital. According to the requirements of the Federal Law No. 256, parents are obliged to determine the shares of their children if they purchase an apartment at the expense of maternity capital. Naturally, parents do not lose their right to a share in such property.
An agreement on the establishment, determination of shares in the right to use an apartment can be concluded even with existing real estate, for example, if the mother or father already has housing that was purchased under a mortgage agreement.
But the main thing is that the share in housing that is acquired for maternity capital is not subject to division after a divorce and is not part of the property that was purchased during the marriage.
The most interesting thing is that the size of the shares for children is not provided for at the level of legislation, but you should always remember the minimum housing standards that are established by law.
The agreement on shares in the apartment, the distribution of shares, which was concluded as part of the acquisition of housing exclusively for maternity capital, immediately passes into the common joint property of all family members, and in equal shares. It is allowed to immediately prescribe in the agreement the conditions for further redistribution of shares if new children appear in the family.
Redistribution of shares by way of drawing up a gift agreement is allowed, but nevertheless, an agreement on determining shares in an apartment, which is subject to mandatory notarization, is most often found.
Conclusion
Our life is unpredictable, so do not be shy, and even at the stage of acquiring housing immediately discuss with your spouse all the details of a possible division of property in the future. Regardless of how property is acquired, under a mortgage agreement or for maternity capital, if the parties cannot continue to live together, each of them must understand what it can count on. And most importantly, children always have the right to housing.