Today, about 95% of apartments are in shared ownership . With real estate various transactions are made. As a result of some of them, a share of ownership in the apartment arises. In many cases, its size is quite sufficient to make normal use of the area. However, sometimes an insignificant share in the apartment may form.
Many citizens have difficulties not only with transactions with such real estate, but also with its use. After all, often when converted to square meters, the area of the insignificant part of the room becomes such that you can barely put your foot in there, not to mention normal living. Let us further consider what can be done with such property.
General information
An insignificant share in the apartment is less than 1/4 of its area and the smallest isolated room in it. In some cases, it may not reach 1 square meter. If, for example, there is 1/10 of the apartment, but the total area of the object is 300 square meters. m. and there are 12 rooms in it, then some room may correspond to it. In this case, you can establish the order of use without much difficulty. However, an insignificant share in the apartment creates certain difficulties. First of all, they are associated with the inability to isolate it.
The specifics of the law
Previously, the repurchase of a share in an apartment was allowed if it could not be allocated in kind. This procedure was carried out according to Art. 247. Here is what this norm says:
- Property that is in shared ownership may be shared by its participants by mutual agreement.
- The subject may require the allocation of the area due to him.
- In case of failure to reach an agreement by the participants on the conditions and method of dividing the property or applying the virtual part to a real person concerned, it can file an application with the court.
In some cases, separation is impossible without disproportionate damage to an immovable property or is not permitted by law. In this case, Art. 247 CC provides compensation for a share in the apartment. It is paid by other property owners with the consent of the person concerned. However, the norm makes a reservation: if there is no significant interest of the participant, and its share is recognized as insignificant, compensation can be paid without his consent. After receiving the money, the entity can no longer claim the common property.
Practical application of the provisions
Specialists who used Art. 247 in their activity, they read mainly that a small share in an apartment can be acquired without the consent of its owner. Few people paid attention to the remaining provisions of the norm. As a result, the purchase of a share in an apartment has become one of the most popular cases in the courts. Moreover, in all cases there was an urgent question about the price. If the cost of a room in an apartment can be determined without much difficulty, then with a virtual area, everything is not so smooth. As a result, in the process of applying the norm, there were many opportunities for corruption.
Trials
Recognition of the share as insignificant - the procedure is rather laborious and lengthy. First of all, the interested person sends a lawsuit to the court. The application is compiled in accordance with the rules of the Civil Procedure Code. The lawsuit is filed with the district court, located at the location of the disputed property. The subject of the application will be recognition of law. In practice, a number of conditions have been worked out that ensure the probability of winning a dispute. It is worth mentioning the findings of the Armed Forces. In its rulings, the court emphasized that, in allowing for the repurchase of shares, the legislator proceeded from the exclusivity of such situations.
Accordingly, the first instance may decide in favor of the plaintiff not in all cases, but only in the presence of a number of circumstances. These include:
- The inability to provide the plaintiff with an isolated room corresponding to the size of his share.
- The applicant never settled on the disputed square.
- The remaining participants in shared ownership are outsiders of the plaintiff.
- When concluding a contract (for example, when acquiring an object), the applicant knew about the situation with the property.
- The former solderman did not use the facility.
- The participant did not ask for an apartment before claiming and did not dispute his rights.
Explanation
In practice, making a decision by analogy in the situation under consideration will be extremely problematic. Let’s say the co-solicitor filed an application with a demand for introduction before a lawsuit was filed against him to recognize the insignificance of the share. The last paragraph from the above in this case is excluded. A situation may arise when the former solderman used the apartment for a certain time. In this case, paragraph 5 of the list is not fulfilled. The subject in the proceedings may not admit that he knew about the situation with the object. From all this it follows that the law applies only to single insignificant shares.
Assessment Issues
The owner of a share in the apartment is faced with the need to determine the price of his virtual property. To do this, the court initiates the assessment process. The experts proposed a discount scheme. In accordance with it, any share was estimated to be 2-3 times cheaper compared to if it were sold together with the apartment.
Consider an example. The apartment has 2 shares. The total price of the object is 5 million rubles. Accordingly, 1/2 will be estimated at 2.5 million. However, if half the object is sold separately, while there is another scandalous owner in it, then it cannot have a high price. The maximum that can be offered for it is 30% of 5 million rubles. As a result, the sale of a share in the apartment began to be carried out jointly with the entire facility. Of course, this is more profitable. The participants agreed with each other, sold the apartment, and the proceeds were divided in accordance with the available shares.
However, it is not always possible to reach such a compromise. At the same time, problematic shares are more likely to be exceptions. In this regard, the virtual area should be estimated in relation to all real estate. However, here there was a place for corruption. Suppose there is an apartment with shares of 7/8 and 1/8. The latter is smaller than the smallest room. The owner of a larger share wanted to buy 1/8. However, the owner of the latter does not want to sell it for a small amount. Owner 7/8 turns to a lawyer. The lawyer draws up a lawsuit against the owner 1/8 about her redemption and monetary compensation. The court must order a peer review. At the same time, he can turn to any specialist at his discretion.
If an appraiser working on a discount principle is selected, the plaintiff will win. As a result:
- The acquirer 1/8 receives the desired with the least loss.
- The lawyer is paid a fee, and the appraiser - remuneration for the work.
However, the owner paid 1/8 for all the procedures. The subject suffered significant losses, since the sale of a share in the apartment was carried out forcibly at a ridiculous price.
Elimination of corruption
Currently, cases of redemption of minor shares are classified as losing. Moreover, such transactions are not possible at all today. In 2012, the Armed Forces, the Moscow Regional Court and the Moscow City Court explained that the redemption of an insignificant share is permissible only if the defendant raised the question of allocating it in kind. However, given the size of the virtual property, this is not possible in practice. For the allotment you need the equipment of a separate entrance, kitchen and bathroom. It is impossible to do this in an apartment.
Prohibition
It is installed in one of the definitions of the sun. It is difficult to say how many real estate owners this act touched. The determination was made when reviewing the dispute of the owners of a small apartment. However, the provisions of the act relate to an indefinite number of persons. The importance of the law is that now many citizens own a share in the apartment. By inheritance, it was received or as a result of other transactions - it does not matter.
Problems arise due to the disproportion of virtual areas. Some owners own substantial shares. They may correspond to one or more rooms. Others have a very small share in the apartment. Rights to property, meanwhile, want to show everything equally. In particular, owners of microscopic virtual areas require introduction. The consideration of such cases in the courts previously ended in a decision in favor of the plaintiffs. As a result, the apartments turned into the so-called "crow's quarters", where neither old nor new users can get along. Conflicts begin in which the strongest wins. However, he is not always the one who has more rights. The Supreme Court, having reviewed one of these cases, clearly indicated the legislative norms, explaining when the introduction of shared owners into apartments is allowed, and when not.
The essence of the dispute
A citizen who was the shared owner of the apartment, as well as the defendant, applied to the court of the Moscow region. Moreover, the applicant had 1/40. The defendant owned 1/2. The disputed object was a one-room small-sized apartment. The court ruled in favor of the plaintiff. As a result, she moved into the apartment. The defendant, disagreeing with the decision, appealed to the Armed Forces. The court, after examining the materials, found that the regional court had violated legislative norms. Accordingly, the defendant's claims were well-founded.
In the course of studying the materials, it was revealed that the plaintiff registered in the premises on the eve of the application. The respondent, in turn, had lived in the apartment for quite some time. The first instance, satisfying the lawsuit, was guided by the following: the plaintiff had the right to demand infiltration, since under article 30 of the LC she could dispose, own and use the premises. This conclusion was called by the Sun a violation of material standards. The position was substantiated as follows. In the LCD indicates that the object of rights is a dwelling. It can be presented in three forms. This can be a house, an apartment or parts thereof, as well as a room.
In accordance with Art. 30 The legal owner may dispose of and own his property. However, the disputed apartment belongs to four owners. It follows that article 30 cannot be applied alone. Together with it, it is necessary to use a different norm. It is article 247 of the Civil Code. It says that the management of shared property is allowed only by agreement of the participants. If it is not achieved, then you should go to court. When studying the case materials, the latter revealed that there was a corresponding decision. The plaintiff, who owns 1/40, together with her son, has already requested to establish the procedure for use. However, the court dismissed this application. Moreover, the decision noted that the shares are so small that their allocation to use is impossible. The District Court, in turn, did not take this decision into account.
conclusions
The Supreme Court emphasized that in making the decision one important circumstance was not taken into account: when recalculating the disputed share amounts to 0.5 sq. m. It is impossible to allocate this area in kind under any circumstances. As a result, the situation is such that the disputed object cannot be used by all owners without violating the rights of the owner who has the largest share. Further, an important conclusion of the armed forces should be noted. He points out that the realization by the owner of the possibility of using and owning the premises depends on the size of its part and the agreement of all participants. Since the magistrates' court had already refused the applicant, the district court had no reason to satisfy the new lawsuit.
However, this is not all. The main violation, in the opinion of the Armed Forces, was the violation of the rights of other equity holders. Here the court refers to constitutional provisions. The basic law states that the right of a subject to choose a place of residence should not violate the interests of other persons. The Sun draws attention to the fact that the disputed property was never used by the plaintiff, unlike the respondent. The latter not only owns most of the property, but also lives on its territory for a long time. Thus, the Supreme Court ruled as follows: in accordance with Art. 10 of the Civil Code, the rights of the owner of an apartment cannot be exercised solely with the intention of harming another citizen, actions to circumvent the rules with an unlawful purpose, other unfair behavior are prohibited.
The court emphasized that the circumstances examined by him allow assessing the actions of the applicant, the owner of 0.5 sq. M. m., requiring its instill in the premises, as an abuse of their legal capabilities. They violate the rights of the owner of the apartment, owning half of the object. All previous decisions were canceled, and the case was sent for review. As a result, the Moscow Regional Court refused the plaintiff.
Giving a share in an apartment
Any real estate transaction involves the conclusion of a written contract. The document should contain the following information:
- Description of the share that is given as a gift.
- Passport details of transaction participants.
- Location address of the property.
- The number of square meters provided as a gift. They are calculated by the total footage.
- Floor on which the apartment is located.
- The number of floors in the house.
- Additional terms.
In the last paragraph, you can, for example, indicate that the owner of the share will live in the apartment for a certain time or will not be discharged from it. It is not necessary to quote the price of property.
registration
How to get a share in the apartment? You must contact the registration authority at the location of the property. The contract is signed before a specialist of the authorized instance. The following documents are transferred to the registrar:
- Passports of participants in the transaction.
- Contract. The number of copies must be greater than the number of participants in the transaction by 1 pc. Excess remains with the registrar.
- Title document on the object. As it may be a certificate, a contract of transfer, sale, investment / rent, extract from the Unified State Register.
- Spouse's consent, notarized. It is necessary if donating a share in an apartment acquired in a marriage is carried out.
If a representative acts on behalf of a party, an additional power of attorney is provided to confirm his authority. If the subject to whom the share is granted is underage or incapacitated, the consent of the guardianship and guardianship authority is provided. The need to present this document should be clarified at the registration authority. A receipt on the payment of state duty is attached to these securities. Having accepted all the documents, the registrar draws up an application in 2 copies. They are checked and signed by the parties to the transaction. After that, the registrar issues a receipt, which indicates the date of receipt of the certificate.
Address to the notary
This is the second option for registering the transfer of shares in the apartment. This method is more costly, but in some cases more justified than applying to the regal chamber. The following documents are provided to the notary:
- Passports of participants in the transaction.
- Title document confirming the lawfulness of real estate ownership.
- Foundation agreement.
- Extract from the Unified State Register.
In some cases, notaries also request a certificate of persons registered on the living space. The gift agreement will be drawn up in several copies. In this case, the document will indicate the price of the property. It is on its basis that the duty and cost of notary services will be calculated. You can also assure him of the consent of the spouse.
Conclusion
For registration, a notary will pick up the original documents (except for passports) and a gift agreement. Like the regpalat, he issues a receipt, which indicates the date of receipt of the papers. They can be picked up at a notary public or at the registration authority. The issuance of a certificate is carried out upon presentation of passports. In addition, the new owner will receive an extract from the Unified State Register with the corresponding entry.