How to convert joint ownership into shared ownership

Currently,

the MFC “My Documents” (most of them) is responsible for
accepting documents for state registration of real of mortgages, you can use the bank’s electronic registration service, and
notaries also have this option.
Notaries certify transactions and have the right to send documents to Rosreestr.
Considering the high cost of notary services, we will consider in more detail in which cases notarization
of a transaction is still necessary, and where you can get by with the services of a lawyer
(realtor) to draw up a purchase and sale agreement.

From July 31, 2023,
amendments were made to the Federal Law of July 13, 2015 N 218-FZ “On State
Registration of Real Estate”, which slightly simplify
real estate transactions.

Before these amendments, there were slightly more cases of notarization
than now.
The changes affected cases of alienation of real estate by all shareholders simultaneously under one agreement.

When selling individual
shares, everything remained as before.

Article 42
of the Federal Law “On State Registration of Real Estate” (https://www.consultant.ru/document/cons_doc_LAW_182661/1f14c2aa01b3d7876854aeceb9017d2d3c3001a8/) indicates
which transactions must be certified by a notary.

A notary is required in the following
cases:

If an apartment is owned by several
owners in shares (1/2, 1/3, etc.; this is shared ownership) and one of
these owners wants to sell his share to someone, a notary is required.

It doesn’t matter
to whom the owner is going to sell his share - another owner or
a stranger, a relative or not, one person or several,
a minor or an adult, the entire share or only a part of it, etc.
Remember, since shares in an apartment that is in shared
ownership are being sold, we go to the notary.

If spouses from a joint apartment
want to sell a share to someone, they will have to contact a notary.

This refers
to the sale of a share, and not the entire apartment.
If the apartment is jointly owned by spouses, then the shares of the owners are not determined - clause 2 of Art.
244 Civil Code of the Russian Federation.

It will not be possible to sell a share in such an apartment.
After all, you cannot sell something that is not defined.
Therefore, the spouses will first have to transfer the apartment from joint ownership to shared ownership.

And only then can you sell
the share.

To
transfer an apartment into shared ownership, you need to draw up a marriage
contract with a notary (Article 41 and Article 42 of the RF IC) or an agreement on the division of common property (Art.
38 of the RF IC). A prenuptial agreement is cheaper.

Shares can be specified in any proportion.
In the case of a marriage contract, you will first need to carry out its
state registration in Rosreestr.

Then, when the shares are determined, we again
turn to the notary for certification of the share purchase and sale agreement.

If the spouses want to sell
the ENTIRE apartment at once, then a notary is NOT required.

A rare
case: A couple bought a share of an apartment,
registered it as joint ownership (namely a share, not the entire apartment) and
decided to sell it - a notary is required. In this situation, if the spouses
bought a share in the apartment, then the apartment is in shared ownership.
And since the apartment is in shared ownership, then when selling a share, a notary is required.

also
subject to notarization: if an apartment is sold under a Lifetime Maintenance Agreement with
dependents (Article 584 of the Civil Code of the Russian Federation) and if an apartment is sold that belongs to a minor child or
a citizen recognized as having limited legal capacity (Clause 2, Article 54, Federal Law-218 dated
13.07 .2015).

If the apartment is owned by one

owner and he sells a share in it, a notary is NOT required. It doesn’t matter to whom the apartment owner sells the share - the purchase and sale agreement does not
need to be notarized, but in a simple form.

A simple
written form of an agreement is when the agreement is printed on an A4 sheet.
It is better to have it drawn up by a lawyer.
We strongly advise against searching for contract templates on the Internet or drafting them yourself. Almost all samples are outdated and have errors.

Each sales transaction is unique, and standard templates do not have the items
that need to be specified in each specific case.

Author of the article: Belova M.S.

Open source image.

Joint ownership

The legal concept of property is much broader and more diverse than ordinary citizens can imagine. Therefore, sometimes they have legitimate questions about how to dispose of their property, the answers to which can only be given by a real estate specialist.

Irina Denisova contacted our agency, wanting to sell the apartment that she and her husband owned. Finding herself in a difficult life situation, she wants to leave him without waiting for the divorce process to end.

The apartment in Moscow was purchased in the third year of the official marriage and is shared. However, all ownership documents are issued to Irina.

Therefore, she decided that she had the right to dispose of the apartment without her husband’s participation.

Our lawyers studied the situation and explained to the client why she was mistaken:

Difference between joint, shared and individual property

According to Russian legislation, there are three forms of ownership for citizens:

individual (when one owner owns the property and independently manages it);
shared (when one object, for example an apartment, belongs to several owners in certain shares);
joint (when an object belongs to several owners without delimiting shares).

Joint and shared ownership are variations of the term common ownership. The interpretation of which is given in Article 244 of the Civil Code of the Russian Federation. Common property is property that belongs to two or more citizens.

The norms of this article of the Code determine that in most cases all common property is shared, except for situations where an object owned by several people cannot be divided even virtually, and the rules under which joint property is regulated by the requirements of other laws. It turns out that joint ownership arises only for indivisible property and, in the interpretation of Articles 34 of the RF IC and 256 of the RF Civil Code, in a married couple or, in the interpretation of Article 257 of the RF Civil Code, in farmers or peasants. The legislation does not provide for other options for joint ownership of citizens.

Important: According to Russian legislation, joint ownership of marital property can arise only after the official registration of the marriage. Joint farming is not a basis for automatic recognition of joint ownership. If this is necessary, an agreement must be concluded or the right to property will have to be proven in court.

The difference between individual and common property is obvious - if an individual owner can solely dispose of his property, then with common property this requires meeting certain conditions and obtaining the consent of other owners.

Participants in shared ownership, according to the norms of clause 2 of Art. 246 of the Civil Code of the Russian Federation, they can dispose of their share of property in accordance with their wishes, that is, sell, donate, pledge or bequeath to any person of their choice.

For the legality of such a transaction, the participant in shared ownership must comply with the rules set out in Art. 250 Civil Code of the Russian Federation.

The difference in the exercise of powers under joint and shared ownership is that the owners of shared ownership have a certain share in the right to common property, and the owners of joint property have equal rights in general to the entire volume of common property, but none of them has a certain officially shares in the ownership of the same property. True, if necessary, this share can be allocated by dividing property or allocating shares. It is stipulated that in these cases the real defined share in the property itself, and not in the right of ownership of this property, is subject to separation. As a result of division or allotment, the legal relations of the owners of common joint property are terminated. Therefore, as long as common joint property exists, it is shareless. This is its main legal feature.

All its owners jointly can use and own joint property freely and without restrictions. According to the regulations of Article 253 of the Civil Code of the Russian Federation, it is possible to dispose of property in joint ownership only if the consent of all its owners is obtained, regardless of which of the participants legally makes the transaction for the disposal of this property.

Simply put, in order to sell an apartment that is jointly owned as property acquired by spouses during marriage, the consent of the other owner - the second spouse - is required. Without this consent, any transaction made with such property may be declared invalid in court.

True, the owner who challenges the transaction will have to prove the absence of such consent. For this purpose, the law provides for a limitation period of one year, which begins from the moment the co-owner of the property learned or should have learned about the transaction made without his consent.

In practice, when registering transactions with apartments jointly owned by spouses, notaries always require the written consent of the second spouse in order to avoid challenging the transaction in court.

Important: If one of the owners of joint property is incapacitated or a minor, then in order to protect his legal rights and interests, the law provides for special conditions for the execution of transactions, namely the mandatory participation in them of social authorities or guardianship authorities.

Based on the above, in order for Irina to dispose of the apartment at her own discretion, she must obtain written consent to the transaction from her husband.

If he does not give such consent, then Irina has the right to transfer joint property into shared ownership by allocating her share in the apartment.

If the husband does not agree with the allocation of shares on a contractual basis, this can be done in court.

How is a share allocated from joint property?

Thus, in order to allocate her share in the apartment, Irina needs to file a claim in court. The following must be attached to the statement of claim:

a copy and original of the marriage certificate;
copies and originals of documents confirming ownership of the apartment (purchase and sale agreement and certificate of state registration of ownership);
cadastral passport and explication for the apartment.

The court will consider and check all the circumstances and data and allocate Irina her share in the joint property, which will be ½ of the apartment. It is this share that Irina will be able to dispose of at her own discretion.

How to sell, donate or bequeath an allocated share in an apartment?

The specifics of transactions with shared ownership are regulated by the provisions of Article 250 of the Civil Code of the Russian Federation. According to this article, participants in shared ownership have a preemptive right to acquire the shares of other participants if they are put up for sale.

This means that having decided to sell his share in the apartment, the owner is obliged to offer it to the rest of the participants for purchase.

Such an offer, in accordance with legal requirements, must be made in writing and contain certain mandatory clauses:

exact address of the property;
the size of the share in it put up for sale;
the price at which the share is sold;
other significant conditions for the sale of the share.

At the same time, the seller must have evidence of receipt of such notifications by other participants in shared ownership. This means that they must be sent by mail by registered mail with acknowledgment of receipt, and handed over in person only against signature.

After receiving notification of the sale of a share in real estate, other owners have 1 calendar month to make a decision. During this period, they are obliged to notify the seller of their desire to exercise the right of pre-emption or to waive this right.

It is noteworthy that if several participants agree to purchase a share at once, the right to choose a buyer remains with the seller. If none of the participants in shared ownership wanted to buy out the share, it can be legally sold to any third-party buyer.

True, for this it is necessary to obtain a written waiver of the right to purchase from all participants in shared ownership. If such a refusal is not received, then a receipt confirming receipt of the notice of sale will serve as evidence of proper execution of the procedure for the sale of shares. The preemptive right to purchase a share cannot be transferred to another person.

When an apartment share was sold without complying with the existing procedure, or during its sale there were non-compliances with the rights of other participants to the priority right of purchase, any of them, if desired, can re-register such a transaction in their name by going to court. For this, the law gives a period of three months from the date of the transaction.

For transactions involving the exchange of shared real estate, exactly the same rules apply. But they do not apply to such legal relations as donation or will. You can write a will or donate your share in an apartment as ordinary individual property, without any restrictions.

Often, share owners use donation as a way to bypass the mandatory preference for the purchase of shares by other owners. However, this creates certain risks for the buyer, because the gift agreement can also be challenged in court. Other owners of shared property can do this.

In this case, the buyer of the share may be left without real estate and without money. After all, a gift agreement is a gratuitous type of transaction and does not provide for a refund.

Total

Summarizing all of the above, it can be noted that after allocating her share in the above-mentioned apartment, Irina is obliged to offer it to her husband for purchase.

And only if he refuses to buy it can she put it up for sale to other buyers.

But Irina will be able to donate a share, bequeath it or pledge it as collateral for a loan immediately after the court ruling on allocating her a share of the property comes into force. Her husband's consent will not be required for this.

How to convert shared ownership into joint property

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Content:

Transfer of joint ownership into shared ownership
Types of apartment ownership
How to transfer shared property of spouses into joint property
Transfer of shared ownership to joint ownership
Transfer of an apartment from common shared ownership to common joint ownership
Help transform shared ownership into joint ownership
How to transfer joint ownership to shared ownership or vice versa

Transfer of joint ownership into shared ownership

VIDEO ON THE TOPIC: Termination of shared ownership rights

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Messages: 34 Registration: Good afternoon! I came across Sberbank. The apartment was purchased with a mortgage.

There was a desire to change the form of ownership from common shared to common joint. Accordingly, you need the bank's permission for this. The employee states that they can’t do that. I think she's wrong.

Accordingly, the question is: who has experience - tell me where it all should begin, what should I demand from Sberbank specialists? The banner is shown only to unregistered users. Enter or register.

Messages: Registration: Was there a marriage registered at the time of purchasing the apartment?

Quote pindets writes: tell me where it all should begin. Your goals are not clear, but everything should start from here: Federal Service for State Registration, Cadastre and Cartography Phone numbers for inquiries: 8 34 34, , But you are right - no one is stopping me from finding out what The cadastral office is thinking about this!

First of all, you need to contact the bank, since nothing can be done without the consent of the mortgagee. If you were married at the time of purchase, then theoretically you can change the form of ownership with a marriage contract.

The marriage contract must be agreed upon with the bank and submitted to the registry office. Only I agree with yaffil. Your goal is not clear. As a last resort, this can be done when removing the encumbrance after repaying the loan. Thanks bocharik for the advice. That's pretty much what I imagined.

There will be a lot of running around, I think. That's how to make Sberbank move, that's the question today! The goal is so simple that I forgot to voice it! I want to receive a property tax deduction for the entire apartment only for myself.

The cost of the apartment is such that it is not advisable for two people to receive a deduction. Messages: 5 Registration: We had the opposite situation. It was necessary to transfer shares from common joint to common equity. Only through the court.

Then they brought the court decision to the Registration Chamber, and on the basis of it we were given new certificates, but the apartment was not pledged.

Now in the certificate of ownership the basis for issuing is a court decision, I don’t know whether a marriage contract can be the basis for issuing a certificate of ownership.

Modified by: naty — Messages: 11 Registration: The situation is similar to that of the author of the topic. Quote from pindets: The apartment was purchased with a mortgage. Strictly speaking, when purchased by spouses in common share, each “share” is in common joint property. If there is such an option in the tariffs, they should definitely do it, if not, then the hell knows. Quote Marina85 writes: The situation is similar to that of the author of the topic.

Quote Ipotekar writes: Strictly speaking, when buying by spouses in common share, each “share” is in common joint property. That's how it is.

But there is a huge difference: either the tax authorities will have to give it in shared shares or now to one spouse and then to the other for the 2nd apartment in a common joint one. As our MedvePuts like to say, ignorance of the laws does not exempt you from responsibility.

And I think the whole problem with such transfers is precisely in the tax deduction and, accordingly, in the budget of the Russian Federation.

Messages: 15 Registration: Please tell me, if the apartment was bought only in my name during marriage, according to the documents, it is still joint property with my husband? Or joint when we are both listed in the purchase and sale agreement? Quote yaffil writes: So it is. Well, knowledge of the laws does not prevent their non-compliance. The share of each spouse is also joint. In theory, you can determine the amount of deduction by application. In fact, our state is the property of the bureaucracy; they do whatever they want.

I have this situation. There is a plot of land and a house on this plot.

In the situation under consideration, the spouses’ right of joint ownership of the land plot can be registered, which corresponds to the position of the official bodies.

The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract. Company Fodina B.

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Types of apartment ownership

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How to transfer shared property of spouses into joint property

Good afternoon I have the following question: my husband and I participated in shared construction, entered into a shared construction agreement, after the commissioning of the object, we signed an act in the year, completed all the necessary documents and received 2 brilliants in our hands already in the year.

When concluding a shared construction agreement, the husband was indicated as a dependent, so he was not initially going to make a personal income tax refund. I haven’t received the refund yet and haven’t written an application for a refund, but I’ve already submitted the documents with the declaration.

Is it possible to convert shared ownership into joint ownership now? You need to consult before, not after.

The concept of property rights is reflected in Art.

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Transfer of shared ownership to joint ownership

Today For all time AlloYurist - Housing disputes - How to transfer joint property into shared ownership or vice versa. We will solve any issue! A married couple can own common real estate on the basis of either joint or shared ownership.

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How to transfer shared property of spouses into joint property. The spouses acquired land on the basis of a purchase and sale agreement.

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Help transform shared ownership into joint ownership

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How to transfer joint ownership to shared ownership or vice versa

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How to convert an apartment from joint ownership to shared ownership

Property owned by two or more citizens belongs to them under the right of common ownership.

If the share of each citizen in common property is not determined, it is common joint property; if determined, it is common shared property (clauses 1, 2 of Article 244 of the Civil Code of the Russian Federation).

So, in particular, property acquired by spouses during marriage is their joint property (Clause 1 of Article 34 of the RF IC).

To convert an apartment from joint ownership to shared ownership, we recommend following the following algorithm.

Step 1. Determine the method of establishing shared ownership of an apartment. There are two ways to establish shared ownership of an apartment that is in joint ownership (clause 5 of Art.

244 of the Civil Code of the Russian Federation): - by agreement of the participants in joint property, including spouses, by concluding a marriage contract or an agreement on the division of the common property of the spouses (clause 2 of article 38, article 40 of the RF IC); - in court if the parties to joint ownership fail to reach agreement.

To resolve a legal dispute, you may need qualified legal assistance, and if your interests are represented in court, a notarized power of attorney for the representative. Step 2.

Conclude a marriage contract or an agreement on the division of property or obtain an appropriate court decision. When concluding a marriage contract or an agreement on the division of common property, the size of the shares in the right of common property is determined by the participants in the joint property.

When dividing property in court, the size of shares in the right of common ownership is determined by the court, taking into account the actual circumstances of the case (clause 3 of Article 38 of the RF IC). The marriage contract is concluded in writing and must be notarized (Article 41 of the RF IC).

An agreement on the division of property acquired by spouses during marriage is concluded in simple written form and must be notarized (clause 2 of article 38 of the RF IC). Step 3.

Prepare the documents necessary to register changes in ownership of the apartment. To register changes in ownership by agreement of the parties (based on a marriage contract or an agreement on the division of common property and determination of shares), the following documents will be required (Parts 1, 2, Article 14, Art. 21 of the Law of July 13.

2015 N 218-FZ): - identification documents of applicants; - applications for state registration of rights to shares of property specified in a marriage contract or agreement on the division of property from each of the co-owners; — a marriage contract or an agreement on the division of property of the spouses in at least two original copies; — marriage certificate or certificate of marriage registration to confirm the acquisition of property during marriage; — documents confirming ownership of property; — a notarized power of attorney, if the documents are submitted by a representative. To register changes in ownership based on a court decision, the following documents will be required: - identification documents of the applicants; — applications for state registration of rights to shares of property (applications can be submitted either simultaneously by all co-owners or by each of them separately at different times); - a court decision with a note on entry into force in one copy; — a notarized power of attorney, if the documents are submitted by a representative. For state registration of property rights, you must pay a state fee. Step 4. Submit documents for state registration to Rosreestr The application and the necessary documents can be submitted in one of the following ways (Part 1, Article 3, Part 1, 2, Article 18 of Law N 218-FZ; Clause 2 of the Procedure, approved by Order Ministry of Economic Development of Russia dated November 26, 2015 N 883): - through the MFC (regardless of the location of the property according to the list of departments that receive reception on an extraterritorial basis, posted on the Rosreestr website). — by postal item with a declared value upon forwarding, an inventory of the contents and a notification of delivery; - in the form of electronic documents via the Internet, for example through the official website of Rosreestr. Step 5. Receive documents confirming the state registration of rights The completed state registration of rights to real estate is certified by an extract from the Unified State Register of Real Estate, which can be sent to you in electronic form (Part 1 Article 28, Part 6 Article 62 of Law 218-FZ ). The original of the marriage contract, agreement on the division of property or agreement on the determination of shares with a mark on the state registration is returned to the copyright holders.

If the application for state registration was submitted by a notary and otherwise is not agreed with you, then the notary receives the specified documents and transfers them to you (Article 86.2 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

How to transfer an apartment from common joint ownership to one owner? — Pravoved.RU

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Hello!
My ex-husband and I have an apartment in common joint ownership.
He is ready to transfer his share completely to me.

Tell me, how can I do this faster? Is it necessary to register an agreement on the division of shares, and then make a purchase and sale agreement and submit for registration again? Or can this be done in one go?

And can all this be done in simple written form or does it have to be notarized?

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Lawyers' answers (6)

Hello Yulia, if you want to do everything quickly, then as an option, enter into a gift agreement, but the recipient will have to pay a tax of 13%, and have the gift agreement notarized, then submit for registration.

Federal Law “On state registration of rights to real estate and transactions with it” dated July 21, 1997 N 122-FZ (current edition, 2016)

Article 241. Transactions on the alienation of shares in the right of common ownership of real estate, including when all participants in shared ownership alienate their shares in one transaction, are subject to notarization.

The division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a creditor making a demand for the division of the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.2.

The common property of the spouses can be divided between the spouses by their agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.

Julia, good evening.

Your spouse will not be able to transfer the share to you without determining it, only through an agreement on the division of property. If this option is not suitable, then a complex agreement is drawn up, where you first determine who is entitled to what share, and then alienate it in the same agreement. In this case, everything will go through in one registration; unfortunately, it needs to be notarized.

In accordance with Art. 253 of the Civil Code of the Russian Federation - the disposal of property (and/or determination of shares) that is jointly owned is carried out by agreement of all its participants.

If it is necessary to divide property, allocate a share in an apartment in kind, if one of the owners, for example, wants to sell, donate or exchange his part of the joint property, the apartment is transferred to shared ownership. The transfer of an apartment from joint ownership to shared ownership is carried out by making an appropriate decision by all owners.

You will have to first transfer to shared ownership and register it. After this, you can formalize the alienation. The best option is donation.

In any case, no matter what transaction you carry out, it must be notarized. From June 1 this year, such transactions without a notary are not allowed

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expert

Hello Julia.
You can enter into an appropriate agreement on the division of jointly acquired property with your spouse, and have it notarized, which will be the basis for registering your ownership of the apartment in Rosreestr.
So, according to:

On the agreement on the determination of shares in common propertyMinistry of Economic Development of the Russian FederationFEDERAL SERVICE FOR STATE REGISTRATION, CADASTRE AND CARTOGRAPHYLETTER dated March 10, 2016 N 14-ref/03029-GE/16 [On the agreement on the determination of shares in common property]

The Federal Service for State Registration, Cadastre and Cartography, having considered in connection with the instructions of the Ministry of Economic Development of Russia, reports within the framework of its established competence.

According to paragraph 1 of Article 33 of the Family Code of the Russian Federation, the legal regime for the property of spouses is the regime for their joint ownership; The legal regime for the property of the spouses applies unless otherwise provided by the marriage contract.

By means of a marriage contract, spouses have the right to change the regime of joint ownership established by law, to establish a regime of joint, shared or separate ownership of all the property of the spouses, its individual types or the property of each of the spouses (clause 1 of Article 42 of the Family Code of the Russian Federation).

In addition, in accordance with Article 38 of the Family Code of the Russian Federation: the division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a creditor filing a claim for the division of the common property of the spouses for appeal recovery of the share of one of the spouses in the common property of the spouses; The common property of the spouses can be divided between the spouses by agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.

How to transfer an apartment from shared ownership to sole ownership?

Feng Yu/Fotolia

Maria Litinetskaya, managing partner of Metrium Group, member of the CBRE partner network, answers:

Equitable ownership implies that there are multiple property owners with equal rights. It usually occurs when an apartment is inherited or privatized by two or more persons.

With shares in the right, you can perform the same actions as with a separate piece of real estate: sell, donate, bequeath, etc.

At the same time, compensated transactions with shares are carried out only with notification of other owners.

10 facts about joint and shared ownership of housing

Donating real estate in 5 questions and answers

The cheapest way is to transfer all shares to one person through a deed of gift. Modern legislation requires mandatory notarization of such an agreement. In this case, the gift of property to a person who is not a relative is subject to personal income tax, but to a family member is not.

To carry out the transaction, all co-owners gather at the notary and sign a common document that secures the transfer of rights to one owner. There is no need to collect any additional papers (for example, consent to the transaction).

It is important to note that the cost of notary services is calculated based on the cadastral valuation of real estate. Today this is a very significant amount that can exceed the market price of the apartment.

Then the gift agreement is registered in Rosreestr, the amount of the state duty is 2 thousand rubles. The transaction comes into force after its registration.

Elena Mishchenko, head of the urban real estate department of the northeastern branch of the NDV-Real Estate company, answers:

This question does not specify to whom the shares need to be transferred: to a third party or to one of the four owners. In addition, there is no information about the relationship of the property owners. Therefore, we will consider both options: transferring all shares to a third party and transferring three shares to the fourth joint shareholder.

You can transfer shares to a third party who is not a relative through the purchase and sale of an apartment. When selling the entire object, documents in the form of consent of the shareholders are not required.

When re-registering three shares for a person who owns real estate in this apartment, you can make one purchase and sale agreement of ¾ shares. In this case, consent is also not required.

If the fourth owner is a close relative, then in this case the issue can be resolved by donating ¾ of the share.

In any case, when alienating real estate (no matter how) that is in shared ownership, notarization of the transaction will be required.

Therefore, it is more profitable to re-register real estate with one agreement rather than several (that is, for each share separately). Otherwise, you will need to pay the state fee for each contract separately.

5 types of transactions that need to be notarized

Can I issue 2 gift deeds to avoid paying tax?

Lawyer Inna Belyakova answers:

To correctly answer your question, you need to decide on a key concept - for whom should the costs be the least? If we consider the situation from the point of view of the benefit of the person in whose name the property will be registered, then it is necessary to apply one algorithm of actions.

But if we consider the situation from the point of view of the benefit of any of the other three co-owners, then the algorithm will be completely different. First, let's determine the structure of expenses that will need to be made to re-register ownership from common to individual.

So, you will need to incur the following mandatory expenses:

Notary fees and services . Current legislation for all transactions with shares in the ownership of real estate provides for a mandatory notarial form of the transaction, regardless of the type of agreement (purchase and sale, gift, exchange or something else), so it will not be possible to avoid these costs. As for the notary fee, the state fee for certifying such an agreement will be 0.5% of the amount of the agreement, but not less than 300 rubles and not more than 20 thousand rubles. In addition to the state fee, you will also need to pay the notary for technical work on drawing up contracts, but the notary will determine this amount independently.
State fee for registration of transfer of ownership . Currently, the specified fee is 2 thousand rubles for one registration action. Since the transaction you are planning will require three registration actions (state registration of three transfers of ownership), the state fee will be 6 thousand rubles.
Personal income tax (NDFL) , which, depending on certain circumstances, will need to be paid by one of the parties to the agreement.

Possible additional, but not mandatory, expenses that may also arise in real estate transactions (renting safe deposit boxes, various powers of attorney, applications, payment for housing and communal services, etc.) are difficult to take into account here, since their need may be caused by the peculiarities of each specific transaction.

Accordingly, of the listed three types of mandatory expenses, the first two are paid by agreement of the parties. That is, as the parties agree, so it will be. But the need to pay personal income tax, amounting to 13% of the income received by the taxpayer, precisely determines the difference in the algorithm of actions that we talked about at the beginning. Let's consider both options.

If we consider the situation from the point of view of the benefit of the person to whom the ownership right is transferred, then it is more profitable for him to enter into a purchase and sale agreement in which he will be the buyer.

In this case, personal income tax will be required to be paid by the sellers of shares in the ownership of the apartment (unless, of course, they are exempt from it in accordance with tax legislation).

But if we consider the transaction from the point of view of the benefit of the people from whom the ownership right is transferred, then it is more profitable for them to enter into an agreement for the donation of shares in the ownership right. In this case, the donee will be required to pay personal income tax (if, again, he is not exempt from paying tax by law).

When concluding a purchase and sale agreement, the amount of personal income tax payable by sellers will be calculated from the contractual value of the share in ownership of the apartment belonging to each of them, but for tax purposes this value is equal to at least 70% of the cadastral value of this share. But when concluding a gift agreement, the amount of personal income tax payable by the recipient will be calculated directly from the cadastral value of the apartment.

What is more profitable - donation or sale?

Do I have to pay tax on the sale of shares worth less than 1 million?

Boris Mogilevsky, legal adviser of the Green Avenue office of the secondary market department of Inkom-Real Estate, answers:

To answer this question as accurately as possible, you need to know exactly when ownership of the apartment arose and on the basis of what transaction.

The costs of re-registering shares from all shareholders to one of them consist of the costs of formalizing the transaction itself, the costs of state registration of the transfer of ownership, as well as taxation costs.

The first option for resolving the issue of transferring shares to one co-owner may be to conclude a purchase and sale agreement for shares in the apartment.

At the moment, an agreement on the alienation of shares of real estate, including between co-owners, is subject to mandatory notarization and is considered concluded from the moment of such certification.

For performing notarial acts, a fee is charged in the amounts established by tax legislation and approved by the notary chamber of the relevant subject of the Russian Federation. So, clause 5, part 1, art. 333.

24 of the Tax Code of the Russian Federation establishes that for certification of contracts, the subject of which is subject to assessment, a fee of 0.5% of the contract amount is charged, but not less than 300 rubles and not more than 20 thousand rubles. The decision of the Moscow Notary Chamber on December 15, 2016 also established the amount of fees charged by notaries for legal and technical services when performing notarial acts, which for real estate sales transactions is 5 thousand rubles.

If the co-owners of apartment shares have owned them for more than five years (for shares received by inheritance, privatization or as a result of a gift between close relatives - more than three years), then the sellers of the shares are not subject to tax on income from their sale.

If sellers of apartment shares own them for less than the specified period, then they will have to pay an income tax in the amount of 13% of the profit received from the transaction, and an amount of at least 70% of the cadastral value of the apartment shares will be taken into account as the tax base.

Note that the Tax Code of the Russian Federation provides for a number of concessions (tax deductions) when making such transactions.

For example, sellers can reduce the tax base by the amount previously spent on the acquisition or creation of the property being sold.

Or they can apply a deduction in the amount of 1 million rubles upon sale (in this case, the specified amount will be distributed among all co-owners in proportion to their share in the ownership of the apartment).

The second option for resolving the issue of transferring shares to one co-owner may be to conclude a donation agreement for shares of the apartment. Such a transaction is also subject to mandatory notarization, as a result of which the same costs arise for the execution of the contract as for the purchase and sale of housing. On average, the cost of registering a transaction with a notary in Moscow will be 25 thousand rubles.

As for gift taxation, it is excluded only if the donors and the donee are members of the same family or close relatives, which include: spouses, parents, children (including adoptive parents and adopted children), grandparents, grandchildren, full and half brothers and sisters (clause 18.1 of article 217 of the Tax Code of the Russian Federation). If the donor is not a close relative of the donee, then the donee will be forced to pay a tax in the amount of 13% of the cadastral value of the share given to him.

Regardless of the type of transaction, the tariff for state registration of the transfer of ownership for citizens today is 2 thousand rubles, multiplied by the size of the share participating in the transaction (Article 333.33 of the Tax Code of the Russian Federation). So, when selling or donating a ¼ share of an apartment, you will need to pay a registration fee in the amount of 250 rubles.