How to alienate a share in an apartment

Housing law > Shared construction > Shareholders > What are the features of a share in an apartment as an object of ownership and in the procedure for its alienation?

When several owners own an apartment in shares, real estate alienation transactions are characterized by a number of features. Let us consider the main points and conclusions of such agreements in 2017.

From a legal point of view, the alienation of a share of real estate is understood as a transaction associated with the transfer of ownership rights or ownership to another person. This can be a gift, exchange, purchase and sale, or almost any transaction allowed by law in the field of real estate. The owner re-registers the property right to another person according to the established legal mechanism.

Legislation on the alienation of shares in an apartment. Photo No. 1

The concepts of shares, their allocation, the rights and obligations of co-owners, the principle of transactions are regulated by the Civil Code (Part One, Section II, Chapter 16).

Requirements for registering a share, contractual nuances and characteristic legal situations establish:

• Federal Law No. 122 “On state registration of ownership of real estate and transactions with it”;
• Federal Law No. 218 “On state registration of real estate”.

Tax legislation does not bypass equity transactions. The amount and deadlines for payment of tax payments and state duties for legally significant actions are contained in the Tax Code.  

When does shared ownership arise?

The right of shared ownership arises when:

• privatization of an object by several owners;
• joint purchase of housing by family members;
• division of an apartment during a divorce between spouses;
• simultaneous inheritance of an object by several persons.

Share in an apartment – ​​owner without a specific territory

How to identify the natural value of the real estate share? Photo No. 2

When talking about apartment shares, it is important to understand that the property is the legally allocated parts of the apartment. The right is confirmed by documents indicating the property with a fractional number: 1/2, 2/4, 1/5, etc.

It is often difficult to delimit shares geographically and determine the part in kind. For example, a studio layout, a one-room apartment, several co-owners of a multi-room apartment. Here real battles are played out between copyright holders, when only the court is able to resolve the situation with the allocation of property to each participant.

But the main feature of “sharing” is the restrictions on the individual disposal of part of the property.  

Preemptive right of repurchase

Who has the pre-emptive right to purchase a share of the apartment? Photo No. 3

Legal actions affecting the interests of participants in shared ownership are carried out only by agreement of all parties (Article 246 of the Civil Code).

To some extent, the postulate violates the right to freely dispose of property. However, protection from attacks on the apartment by crooks of all stripes justifies the inconvenience.

The procedure for preferential redemption when alienating a part to an outside entity is set out in Art. 250 GK. How does everything work in practice?

1. The seller decides on the selling price.
2. Then he warns the other participants in the shared ownership rights in writing about his intentions. The notification must indicate the value of the alienated property and the terms of the upcoming transaction.
3. The co-owners must decide within a month to purchase part of the apartment on the specified conditions or refuse the transaction.
4. If the addressees do not notify the seller of the decision within the established time frame, he has the right to sell the property to a third party.
5. A written refusal of the share before 30 days allows you to proceed with the sale.

Preemptive redemption is also required during exchange.

Failure to comply with the requirements of Article 250 is fraught with a claim from the infringed co-owner to transfer the rights of the buyer to him. You can challenge a deal in court within 3 months from the date of its conclusion. The state controls the implementation of the norm by requiring the presence of a notice to co-owners of the sale when registering the right in Rosreestr (Article 24 of the Federal Law 218).   

Purchase preferences do not apply if the share is sold through public auction.

Alienation of a minor's share

Is it possible to sell the share of a minor? Photo No. 4

If the owner of the allocated share is a minor, you will have to communicate with the guardianship authorities to approve the transaction. The children's part of the apartment is allowed for sale subject to the following conditions:

• the child/teenager receives an equal share at another address;
• the proceeds from the sale are placed in the child’s personal account until he reaches adulthood;
• both parents, even those who are divorced, agree to the deal.

The child’s representative provides documents to the OOP, including an application and a certificate of family composition.

The supervisory authority must complete the examination of the upcoming transaction within 2 weeks and make a decision.

Alienation in favor of the former spouse

According to the law, former spouses do not fall into the category of relatives. After the official breakup, these are strangers. However, the married couple managed to acquire common property, which must be fairly divided. Shares in a joint apartment are allocated, after which it is possible to alienate the property in parts both between divorcees and in favor of third parties.

In legal terms, one must rely on the norms for concluding contracts between strangers.

Expert lawyer's opinion

There are situations when spouses acquire residential premises or any other piece of real estate as joint property, that is, shares are not allocated to each spouse.

The law allows this type of property if the property is acquired during marriage.

In this agreement, the party who remains the property is assigned a whole share of 100%, and the other party 0%.

Rights obtained under the concluded agreement are also subject to state registration.

Notarization of the transaction

Is it necessary to have a contract for the alienation of a share in an apartment certified by a notary? Photo No. 5

Since January 2016, alienation of shares in an apartment without notarial participation is impossible (Article 24, Federal Law 122). Initially, owners were required to certify agreements between third parties. However, since January 2017, any transaction of shared alienation is carried out with notary support.

The specialist carries out:

• legal examination of submitted documents;
• drawing up an agreement, registering a purchase and sale transaction;
• related technical work to support the transaction (requests to government and other authorities, printing, copying of documents).

Changing the mechanism of equity transactions increases the costs of citizens: state duty, payment for the work of a notary. But the degree of legal security of such transactions is higher.

Nuances of alienation of an apartment share

What nuances may arise when concluding an agreement for the alienation of a share in an apartment? Photo No. 6

The buyer should check documents for shared housing with special care. There are situations when applicants whose rights to space may be infringed may appear.

These could be participants in the privatization of an apartment or purchase using funds from maternal capital. In the first case, all privatization participants registered in the area must be allocated a proportionate share in the real estate. In the second situation, mandatory shares are determined for each family member who bought an apartment using a certificate.

If the initiators of the transaction bypassed one of the rights holders, such a person can demand his share through the court.

When does the preemption right not apply?

Let us recall that the Civil Code directly specified the requirements for only two types of transactions - exchange and sale. Thus, for example, a shared deed of gift does not require the fulfillment of the right of preference. This may also include:

• drawing up a testamentary disposition;
• registration of a share as collateral for some property transactions, mortgage loan.

These two methods do not legally relate to alienation transactions. However, it is worth knowing about them, since mechanisms are sometimes used to circumvent the requirements of Art. 250.

If the actual location of the co-owner is unknown?

What to do if the owner of the share in the apartment is not found? Photo No. 7

The notice must be sent to the last known permanent address. Just don’t forget about the inventory of the attachment and notification to the sender of delivery.

From the moment of dispatch, a one-month waiting period applies, after which you can begin selling. Another option: to recognize the citizen as missing or even dead in court. The process risks taking a long time, since these issues will need to be resolved with the heirs.

In conclusion, it is worth noting that the details of each transaction for the alienation of a share of an apartment may differ significantly. But two conditions remain unchanged: registration of the sale and purchase with a notary and the legal advantages of co-owners.

You can also learn about the alienation of shares in the right of common ownership of real estate by watching the video:

Noticed a mistake? Select it and press Ctrl+Enter to let us know.

27 Apr 2017 kasjanenko 122      

How to alienate a share in an apartment

383 views

In modern Russia it is rare to find a situation where an apartment belongs to one person. Usually the co-owners are relatives, but sometimes they are actually strangers. In such cases, one of the owners often wants to get rid of part of such real estate. You will learn how to do this from our article.

Alienation of a share of residential premises is a legal action as a result of which its owner loses any rights to it.

However, since not the entire apartment can be transferred to another person, you will almost always have to ask the opinions of all other co-owners.

Another mandatory condition for the alienation of a share of real estate is the mandatory certification of the transaction by a notary. This rule has been in effect since legislative changes were made in 2016.

There are several ways to alienate a share in an apartment. Each of them has its own nuances and characteristics. Let's look at each of them in more detail.

Sale

This method is probably the most common. However, it also has some nuances. The other co-owners have the primary right to purchase a share in the residential premises. That is, before drawing up a sales contract directly, you must follow the following procedure:

1. Determine the price for which you are willing to sell your share.
2. Notify each of the co-owners in writing of your intention to alienate part of the housing and indicate the desired price.
3. If within 30 days from the date of receipt of the document they do not answer you or send you a refusal to purchase a share (in writing), then you can safely sell your part of the apartment to any other person. However, it is worth remembering that you cannot enter into a purchase and sale agreement indicating a price less than the one for which you offered to buy the part to the co-owners.
4. If not one, but several co-owners have expressed a desire to purchase your part of the home, then the choice is yours in whose favor you will alienate.

If you have not complied with at least one of the points of the procedure for notifying co-owners of the apartment before the sale, then such a transaction can easily be challenged in court. It will be declared invalid and the buyer will have to return the money and sell the share in the apartment again, this time in compliance with all requirements.

After you have received a refusal or consent to purchase a share from the co-owners, you can proceed to the further procedure:

• collection of necessary documents;
• preparation of contract;
• certification of the document by a notary;
• registration of the agreement with the authorities of Rosreestr;
• receipt by the new owner of an extract of ownership of the property.

It is necessary to prepare the following package of documents:

• passports of all participants in the transaction;
• apartment card;
• an extract from the Unified State Register of Real Estate about all owners of the property;
• notarized purchase and sale agreement;
• written consents/refusals of all apartment owners.

When selling a share in residential real estate, other difficulties may also arise, for example, if the location of one of the co-owners is unknown.

In this case, you will have to go to court with a claim to declare him missing, and subsequently dead.

After this, you may also need to wait until you enter into an inheritance and decide with the new co-owners on the issue of buying back part of the property from you.

Download a sample contract for the sale and purchase of part of an apartment

Example. In 2008, the Ivanovs privatized the apartment. They became participants in shared ownership - each of them got ½ of the area. In 2012, Ivanov died and, according to his will, ½ of the property went to the children from his first marriage (who were adults) - N.V. Ivanov. and Skorodumova R.V.

But Skorodumova wanted to get as much money as possible and deliberately inflated the price. Ivanova N.V. I wrote her a refusal and handed it to the co-owner against signature. Then Skorodumova sold her part of the house to a stranger. However, the cost of this deal was significantly lower than what she offered to Ivanova.

So Ivanova went to court, where the sale of the share was declared illegal.

Donation

The main advantages of alienating part of residential real estate using this method are:

• there is no need to ask the opinions of co-owners, and they are not the primary contenders for receiving your square meters;
• no obligation to pay tax for receiving a gift if the transaction is made between close relatives.

It is worth noting that the main difference between a gift transaction and a sale and purchase is its gratuitous nature. However, there are several nuances here too. The recipient may refuse a generous gift without explaining the reasons (for example, he does not want to pay additional property taxes, he does not want to pay for housing maintenance, etc.). In this case, the alienation of part of the apartment will not occur.

Often, unscrupulous co-owners, in order to sell a share in an apartment or to annoy other co-owners, fictitiously draw up not a purchase and sale agreement, but a gift agreement. This allows you to avoid asking them for consent. The person who accepted part of the housing as a gift interferes with the lives of others in every possible way.

Of course, you can try to determine the order of use, but there is another way. It is necessary to go to court and declare the transaction invalid. An experienced lawyer will almost always be able to prove that the contract was not gratuitous and is subject to cancellation.

And a criminal case may be brought against the unlucky “seller” for fraudulent actions.

Download a sample agreement for the donation of a share in an apartment

To register a transaction in Rosreestr, the same documents will be required as for alienation by sale, except for the consent of the other co-owners.

Mena

The procedure is practically no different from buying and selling. But in this case, you do not receive money, but actually other property. Shares can be exchanged both within the boundaries of one premises, and part can be exchanged for an entire apartment (separate room). The documents required for registration will be the same as for the sale. Registration with a notary is also required.

Example. The Davydov spouses purchased a two-room apartment in equal share ownership (½ each). After the divorce, the husband left the entire apartment to his ex-wife for living purposes, but legally half of it remained his property.

A few years later, Davydov purchased a two-room apartment and gave half of it to his daughter together with Davydov. However, after reaching adulthood, the daughter wanted to live with her mother and invited her father to enter into an agreement to exchange her share in his apartment for his share in her mother’s apartment.

An agreement was reached, the contract was certified by a notary and the exchange took place.

Download a sample agreement for the exchange of shares of a residential premises

Alienation of a minor's share

Since minors are especially protected by the legislation of the Russian Federation, their right to housing is practically inviolable. That is why it is very difficult to alienate their share in residential real estate. On their behalf, legal representatives participate in transactions, but consent to legal actions from the guardianship authorities is also required.

It is almost impossible to conclude a gift agreement on behalf of a minor - social service employees will not give consent to the gratuitous alienation of housing to minors.

But it is quite possible to conclude a purchase and sale agreement. However, at the same time, it is necessary to purchase housing for the child, which will be no less than the size of the one being sold, or open a bank account in his name, where the entire cost of the transaction will be transferred.

If you have any difficulties with the alienation of a share in an apartment, you do not know which method is best to choose in your specific situation, then contact the specialists of our website. This way you can get a free consultation; experienced lawyers will comprehensively consider your specific case and advise you on how to proceed.

Contacting a lawyer specializing in real estate transactions will significantly reduce your time and money costs for the alienation of real estate. A lawyer will be able to independently not only collect all the documents, but also represent you in any authority.

• Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
• In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!

Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!

Save the link or share with friends

Rate this article

( 1 ratings, average: 5.00 out of 5) Loading…

How to alienate a share in an apartment

Home / Housing disputes / Alienation of a share in an apartment

Views 91

The main beauty of property rights is freedom of action. The legal owner can donate, bequeath, exchange and sell his property. If we are talking about a share in an apartment, slightly different rules apply.

The owner can also count on alienation, but must take into account the opinion of the other co-owners. For example, when expropriating through sale, notices must be sent and the right of first refusal must be observed.

How to properly dispose of your share in an apartment? What is better to choose: sale, donation or exchange? What are the features of the alienation of shares of minors? Let's discuss the main points of housing transactions.

What is alienation of a share in an apartment?

Legal actions with housing are aimed at use, possession and disposal. The latter option is closely related to the alienation of property.

Alienation of a share in an apartment is a voluntary or forced termination of ownership as a result of paid and gratuitous transactions. The owner’s right is to sell, donate, mortgage, exchange, bequeath, establish rent and other types of transfer of housing (Article 235 of the Civil Code of the Russian Federation).

Read our article about what you can do with a share in an apartment.

The grounds for alienation of shares may be different:

• improvement of living conditions of third parties (for example, when donated);
• reduction in apartment maintenance costs: utility bills, major repairs, etc.;
• making a profit from the sale of a share in the apartment;
• settlement with creditors - for example, in case of late mortgage payments.

It is important to remember that the owner of a share has the right to alienate only his own property. He has no right to “seize” other people’s apartment shares. The co-owner disposes of the share that is indicated in the ownership documents (see “How to find out what share in the apartment belongs to you.”

Methods of alienation of shares

The transfer of a share from one owner to another can have two options

Voluntary

Entirely at the request of the owner of the apartment share. The choice of a suitable transaction is also at the discretion of the legal co-owner:

• alienation of a share through a purchase and sale agreement;
• exchange of apartment shares;
• transfer as a gift in favor of a relative or third parties;
• establishment of rent - lifelong maintenance in exchange for a share in the apartment;
• collateral for a bank loan.

These transactions must take into account the interests of the remaining co-owners (clause 2 of Article 246 of the Civil Code of the Russian Federation). Transfer of property to the detriment of the owners is not allowed!

Forced

The second way to alienate a share in an apartment is forced seizure by the court, bailiffs, bank and local authorities. Often this happens against the consent of the owner (Article 237 of the Civil Code of the Russian Federation). However, such a penalty always has good reasons :

• alienation to pay off a credit debt (mortgage, car loan);
• seizure for utility debts to the management company or HOA;
• confiscation of property - according to a court decision (for example, convicted citizens);
• forced division of property of spouses - if they could not agree;
• legal consequences of declaring a transaction invalid;
• requisition of property.

The further fate of the shares is decided on an individual basis. Confiscated property can be put up for auction (sold at auction), offered to co-owners, transferred to the bank, transferred to the jurisdiction of a municipal entity, etc.

The owner has the right to count on monetary compensation . Especially if the share was requisitioned (clause 2 of Article 242 of the Civil Code of the Russian Federation). The issue of assessing value also requires an individual approach.

How to alienate a share in an apartment?

Let us examine voluntary methods of alienation of property, since the owner can use them. In the case of forced seizure, there is no such right.

The most common options:

• sale;
• donation;
• exchange (exchange).

Let us list the main features and consider the procedure.

Step-by-step instructions: examples

Sale

The owner can sell his share in the apartment and get a sum of money for it. True, this amount will be 2-3 times less than the market price of the share based on the entire apartment.

Alienation of a share through sale:

1. Decide on the part of the housing to be sold.
2. Notify the co-owners of the apartment - sending out notifications about the sale.
3. Conclude a purchase and sale agreement with the selected owner.
4. An alternative in case of refusals is to find a buyer “on the side”.
5. Have agreements certified by a notary.
6. Register ownership with FKP Rosreestr.
7. Receive money from the buyer.

Co-owners have priority in the redemption of shares, even if the owner does not want to enter into a transaction with them (Article 250 of the Civil Code of the Russian Federation). Violation of this principle may lead to the transaction being challenged in court.

Example:

Rozanov was the owner of ¼ of the apartment. He did not have any special plans for housing, so he decided to sell his share to other co-owners. Notifications reached the recipients, and responses began to arrive from them. One of the shareholders agreed to buy out ¼ of Rozanov’s share, and the remaining copyright holders did not have the funds to purchase. The buyer wanted the seller to make a discount.

The house was built in 1970, there had been no major renovations for a long time, the apartments were valued extremely low. After thinking, Rozanov agreed to reduce the price. The co-owners agreed that the alienation of the share would take place in the presence of a notary, the redemption price would be 150,000 rubles, and all registration costs would be divided equally.

Rozanov and the second co-owner shook hands and made a deal.

Exchange (exchange)

The second option for alienation is the conclusion of an exchange agreement. According to its terms, the owner transfers his share to the second party, and in return receives other property (Article 567 of the Civil Code of the Russian Federation). This is a paid transaction, but property is used instead of money. apply here as for the purchase and sale of housing. The owner is obliged to notify the other shareholders of his decision.

An exchange of shares in different apartments is considered a profitable deal. If one share is more expensive than another, you will have to make up the difference in cost. If the price of the shares is approximately the same, the participants do not need to pay income tax (personal income tax).

According to the gift agreement

A donation is considered a gratuitous transfer of property in favor of a relative or other owner of the apartment (Article 572 of the Civil Code of the Russian Federation). The gesture of goodwill is primarily used by family members. Parents can give a gift to their children, and vice versa.

Necessary actions:

1. Agree with the potential candidate (recipient).
2. Visit a notary, conclude a gift agreement, certify documents.
3. Re-register ownership in FKP "Rosreestr".

Since the transaction is considered free of charge, no notifications need to be sent . It is enough to find the donee, discuss with him the terms of the gift and counterclaims (not financial). The recipient of the gift may refuse a share in the apartment (Article 573 of the Civil Code of the Russian Federation).

Example:

Grandfather wanted to give a share in the apartment to his grandson. The child's parents and the grandson himself did not object. However, the condition of the donation was successful completion of high school. The grandson was a graduate of the 11th grade and was preparing to take exams.

The “incentive” in the form of a donation allowed me to pass the Unified State Exam and enter the university. The deed of gift was drawn up even before this, but came into force precisely at the moment of graduation.

Thus, the grandfather alienated his share in the apartment in favor of his grandson.

Documentation

Transfer of property to third parties requires compliance with administrative regulations. Participants enter into an agreement and attach documents. The assembled kits will be needed for the notary and registrars of the MFC or Rosreestr.

Prepare the following documents:

One of the contracts for the alienation of housing fractions

• purchase and sale agreement – ​​in the case of the sale of “ideal” shares;
• barter agreement – ​​in exchange;
• gift agreement (deed of gift) – in the case of a gratuitous transaction;
• property pledge agreement – ​​for a loan taken from a bank.

Documents for the apartment

• certificate of state registration – issued until 2015;
• extract from the Unified State Register of Real Estate on the ownership of the fraction;
• an extract from Rosreestr with the characteristics of the property;
• an extract from the EIRC confirming the absence of debts;
• an extract from the house register - with information about the persons registered in the apartment;
• registration certificate - old sample or new extract from Rosreestr.

Personal documents

• copies and original passport;
• birth certificates – for children under 14 years of age;
• certificate of a guardian or trustee - depending on the situation.

Other documents

• notarial waivers of co-owners – in the case of sale or exchange;
• permission from the guardianship authority - in case of alienation of children's shares;
• certificates from the Federal Tax Service confirming the absence of tax debts;
• written consent of the spouses.

To contact FKP "Rosreestr" you will need to fill out an application. This is usually done by an agency employee. The completed form must be signed and dated.

Deadlines

There are no significant differences in terms of terms for transactions. The registration period is approximately the same:

• execution of the contract, certification by a notary – within a day;
• sending to FKP "Rosreestr" - by a notary within 1 day (electronic application), up to 2 days (paper version);
• waiting for the extract from the Unified State Register to be ready – up to 3 days with a notary’s stamp or up to 7 days without notarization of the transaction;
• The maximum period for waiting for responses from co-owners is 30 days .

Alienation of shares through the “My Documents” MFC will extend the period by 2-3 days, but will save time waiting for your turn.

How much does it cost to alienate a share?

Since 2016, participants in transactions with shares bear notary expenses. Previously, these expenses were optional, but now the transaction will not go through without a notary’s seal.

Approximate costs of alienation of shares:

• draft contracts – from 1,500 rubles;
• notarization – general state duty in the amount of 0.5% of the transaction (agreement) value . The minimum amount is 300 rubles, and the maximum is 20,000 rubles (Article 333.24 of the Tax Code of the Russian Federation). Both applicants pay by agreement.
• tariff for notary services – individually;
• state duty for registering changes in ownership – 2,000 rubles per person ;
• income tax rate - 13% for citizens of the Russian Federation, 30% for foreigners - close relatives and spouses of the donor (mother, father, grandparents, grandchildren, brothers, sisters) are exempt from tax.

The average bill in Moscow for a gift is from 15 to 30 thousand rubles, in the regions it is cheaper (not counting taxes).

We recommend reading “How much does a share donation agreement cost with a notary?”

Alienation of a minor's share

Children are considered a vulnerable category of the Russian population. In addition to parents, the interests of the child are protected by guardianship authorities and child protection committees. Potential transactions must be conducted with the benefit of minors in mind.

Alienation of a child's share requires approval from the public educational organization. And if there are no categorical prohibitions on the sale, then donation on behalf of the child is practically excluded.

In what cases can children’s shares be alienated:

1. If a child receives a new share in another apartment , ideally it should be even larger than the current one (for example, ½ part in a 2-room apartment instead of ½ in a one-room apartment or 23 m² in exchange for 14 m² in the alienated apartment). Read “How to allocate a share to children.”
2. If the home meets sanitary and architectural standards - it is spacious enough, communications are in good working order, there are no insects, unpleasant odors, drunken neighbors, broken glass, loose walls and ceilings.
3. Proximity to infrastructure - schools, kindergartens, hospitals, shops, playgrounds, recreation areas and park areas.
4. Consent of parents or guardians - the move should be beneficial not only for the child, but also for his parents. It is unacceptable for the mother and father to enrich themselves at the expense of the child (for example, they sold his share at a high price, and in return bought a share in an old apartment).

Thus, alienation of the share of children is possible, but subject to the interests of the child.

How can you avoid alienation of a share in an apartment?

Owners worry about their property, and they worry quite rightly. Often it is the share in the apartment that becomes the object of foreclosure. We are talking primarily about forced alienation: by the court, creditors, bailiffs, etc.

How to protect your share in an apartment from alienation:

This is relevant if the co-owners want to buy out a small share, but you are against such a decision. You will need to prove that the share, although insignificant, you have an interest in it and appear in the apartment.

Read “How to recognize a share in an apartment as insignificant,” as well as what follows from this and what to do?

• Select a share as a room

If the share corresponds to the living space, the co-owners will not be able to take it away. The housing standard per person is 12 m², but each region has its own (Article 50 of the Housing Code of the Russian Federation).

Compliance with the rules for acquiring a share excludes challenging the transaction. Study the ownership documents, check the data with the actual size of the shares, see if there are any restrictions on the disposal of shares?

If you have a debt to the bank, do not delay the proceedings until the court. It is better to come to the bank and ask for a deferment/installment plan. Most likely, the creditor will accommodate you – you will be able to restructure the debt and repay it in installments. If you do not violate the payment schedule, the bank will not file a claim and will not sue your share in the apartment.

The owner can execute any transaction and transfer the rights to his share to a third party. Popular operations are selling and donating to relatives. Alienation of a child's share requires the participation of guardianship authorities.

If living conditions turn out to be worse, the PLO will not give consent to the transfer of the children's share.

Alienation of shares is a rather complicated operation. Legal transactions are fraught with many difficulties: refusal of registration, lack of documents, errors in applications, violation of the rights of owners, problems with BTI and OOP. It’s not easy to understand all the intricacies alone.

Well, if you are faced with the seizure of your share for debts, you need the help of a lawyer. It is the lawyer who will be able to evaluate all the factors, draw arguments, check with the laws and give practical advice. If you need urgent advice, ask questions on our portal.

We will help you dot all the i’s in housing issues.

See the video for details of the alienation of shares in the common right to an apartment:

How to register a share in an apartment as a property: what is alienation of a share in an apartment, registration of shared ownership - how to get a share in an apartment

By law, any property owned by two or more persons is common.

If the issue concerns real estate owned by a married couple, such real estate is considered joint during the entire period of ownership.

When several owners appear due to other circumstances, such ownership is considered shared. The volume of each owner's share is necessarily recorded in Rosreestr.

How do shares appear in an apartment?

In most cases there are three sources:

• privatization;
• inheritance;
• donation.

When you need to decide how to register a share in a privatized apartment, you should take into account that in the case of privatization, the property is registered in the name of all those registered (at the time of registration) and who have not renounced the right to take ownership.

When it comes to how to register a share in an apartment by inheritance, the number of shares arises corresponding to the number of heirs taking over. In case of donation, the previous owner has the right to allocate a share of any amount at his discretion.

Also, shares may appear as a result of the division of joint property of a former married couple or for some other reason, when a court decision becomes the basis of ownership.

What is alienation of a share in an apartment?

From the point of view of the law, there are no such concepts as the sale or gift of real estate. Such legal relations are called alienation of property.

Alienation of property is the process of transferring ownership rights from one person to another on paid or gratuitous terms. Transfer of rights to real estate occurs in different ways.

The alienator can be an individual, a legal entity, or the state. Acquirers can be legally capable citizens and legal entities engaged in any commercial or non-commercial activities.

Regarding the issue of shared ownership of a house, the need to register part of the house as property, that is, to transfer the right to part of the property from the owner of the property to some other person, arises in most cases for two reasons:

• it is necessary to remove all restrictions and gain the opportunity to independently dispose of real estate;
• Documentary proof of ownership of part of the house is required.

How to get a share in an apartment?

There are different ways to determine the order of use of an apartment. Usually, when all the shares are owned by the family living there, conflicts over the use of space do not occur. If division is necessary, the residents come to an agreement or, if agreement cannot be reached, they have to go to court with a claim to determine the procedure for using the housing.

Important! Owning a share is not the same as owning a room. It does not imply an indispensable opportunity to use a proportional part of the apartment’s area.

It must be borne in mind that only the area of ​​the residential part of the apartment can be divided and only when the share is not too small compared to the total living area. For example, a two-room apartment is owned by two citizens who have equal share rights. In this case, the order of use is determined in such a way that everyone gets a room.

But if the areas of the rooms differ, it will not be possible to divide “fairly”: one way or another, one will receive a larger room, and the other a smaller one.

And if, for example, two people own a one-room apartment, it will, in principle, not be possible to determine the order of use in court. This also applies to any other cases when the apartment cannot be divided “by rooms.”

For example, the proportional footage of the property is so small that it makes it impossible to use this area as housing.

Therefore, if it is not possible to determine the procedure for using the property, the owner of the “micro-share” has the right to demand compensation from the co-owners in exchange for the right of ownership.

Buying an apartment in shared ownership: registration procedure

Registration of shared ownership rights is based on a title document that gives an individual certain powers of ownership and disposal. Such documents include:

• contract of sale;
• deed of gift;
• court statement;
• will.

The shared status of real estate is indicated by information about all owners, which is given in the title document.

The agreement on determining the size of the shares indicates the size of the shares transferred to each of the owners. In the absence of such information, it is considered that the participation of owners in the management of housing is equal.

When registering real estate, each owner is issued a certificate of shared ownership of the apartment - an extract from the Unified State Register of Real Estate. The old certificates have been cancelled.

Features of registering a share in an apartment

The following documents must establish the size of the allocated share:

• separation agreement;
• certificate of inheritance;
• court order;
• marriage contract.

The following is the process of preparing the necessary documents for registration of shared ownership of an apartment with the state registration authority:

1. A technical passport with an explanation and a plan of the apartment is being prepared.
2. State duties are paid according to the details indicated in the local branch of Rosreestr or on the official website.
3. A package of documents for the apartment and identification documents is submitted to the registration authority.

After this, the documents are checked by Rosreestr employees for the legality of registration of shared ownership, and the owner receives an extract.

In the case where the basis for registration is a purchase, it should be remembered that the remaining co-owners have a pre-emptive right to purchase the share. All owners must be notified that a sale is planned (no less than 1 month before the proposed transaction).

How to register a share in an apartment as property?

First stage: collecting documents

All documents must be presented in originals. The main list of required documents is listed below, but it should be remembered that there are cases when additional ones may be required (the current list can be found in the help window of the MFC or the Registration Chamber (UFRS):

• Passports of donors and recipients.
• If the recipient is between 14 and 18 years old, his passport, as well as the passport of one of the parents. If the donee is under 14 years old, his birth certificate and the passport of one of the parents are presented.
• If the apartment is joint property and it is registered in the name of only one spouse, a notarized consent of the donor’s spouse is required. Registration of consent from a notary costs from 1 to 2 thousand rubles.
• In the case where a proxy acts for one of the participants in the transaction, the original and a copy of the certified power of attorney are provided (the cost of the service is from 1 to 2 thousand rubles). Donors do not have the right to issue a power of attorney for the donee to sign a gift agreement for them, and vice versa, since the donor and the donee cannot be the same person (clause 3 of Article 182 of the Civil Code of the Russian Federation). They have the right to issue a power of attorney for each other, for example, to submit a signed agreement to the MFC.

Stage two: ordering a donation agreement for a share of the apartment

In the past, to formalize a gift transaction, an agreement in a simple form was used, i.e. a regular agreement on A4 sheet. But starting from June 2016, the law began to require an agreement in notarized form for most cases (Clause 1, Article 42 of Federal Law No. 218-FZ).

Thus, it is necessary first of all to have the gift agreement certified by a notary and only after that submit it to the MFC or the Registration Chamber.

A notary can formalize the entire transaction of donating a share or only certify the agreement, even if this is not required in a particular case. This is usually done when there is a fear that the transaction will be challenged. For example, these could be the donor's heirs. The notary will guarantee that the transaction is legal.

Registration of the owner of a share requires the execution of a certain number of documents. The number of copies of the agreement depends on the number of participants in the transaction, plus 1 copy for storage at the registration authority. For example, if there is 1 donor and 1 recipient, 3 copies will be required. The price of registration of shared ownership of an apartment also depends on the number of copies.

Third stage: submission of documents to the MFC or Registration Chamber

If the gift agreement was drawn up in notarial form, the notary must himself, free of charge, submit the agreement for registration on the same day - this is included in the cost of the service for certifying the transaction.

This obligation has appeared for notaries since February 2023 on the basis of Art. 1 of Federal Law dated August 3, 2018 No. 338-FZ. This law excluded the notary's tariff from Art. 22.

1 of the Fundamentals on Notaries and also added to the second paragraph: a notary does not have the right to charge money for additional legal services.

Documents are submitted by a notary in electronic form - such a transaction is registered within one business day.

If a notary is unable to submit documents electronically, he or his assistant is required to submit the documents in person to the Rosreestr office within no more than two business days.

In this case, the registration period will be three working days after submission. All these points are spelled out in paragraph 9 of Art. 16 of the Federal Law on Real Estate Registration of July 13, 2015 No. 218-FZ.

The parties are required to pay the notary only the state fee for registering the transaction - 2 thousand rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation). When submitting documents electronically, Rosreestr gives a 30% discount, i.e. you only need to pay 1,400 rubles. The state fee is paid by the donee, but in practice it does not matter to the notary who will transfer the money.

in many cities, the only opportunity to submit documents is through the MFC, from where they will then be transferred to the Registration Chamber.

Thus, the Registration Chambers no longer accept citizens directly, only through an intermediary - the MFC. But if your city/town still has the opportunity to submit documents directly, you should do so.

The submission process itself is no different, therefore the instructions only mention the MFC:

1. The donor and recipient contact the MFC, pay the state fee and submit signed agreements along with other documents.
2. If the donee is under 14 years old, his presence is not required. Only one parent (or guardian/trustee) needs to be present. If the recipient is between 14 and 18 years old, he must be present with one of the parents (or guardian/trustee).
3. The state fee for registration is 2 thousand rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation). An employee will provide payment details. The cash desk is usually located in the MFC building, the commission is about 50 rubles. Currently, the position of Rosreestr is that the state duty must be paid by the donee, but in practice it does not matter who pays it - it is a matter of agreement. The checks will indicate the donee.
4. After the state fee has been paid, you will need to wait your turn and give the employee the original documents listed above, as well as the share donation agreement and a receipt for payment of the state fee.
5. The employee will check the list of documents and draw up an application for registration of the right, which the donor and the donee will have to sign. If the donee is under 14 years old, the application is signed for him by one of the parents (guardian/trustee), if he is between 14 and 18 years old, the application is signed by both the donee and one of the parents.
6. After the application is signed, the MFC employee will have to pick up all documents, except passports, and issue each party a receipt for these documents, as well as set a date when they need to be picked up. The received documents are sent to the registrar.
7. After that, you just need to wait for registration. By law, the period is no more than 7 working days, but in practice it may take longer. In case of delay, it is recommended to call the MFC, give the number on the receipt and check the registration status.
8. On the appointed day, the donor and donee pick up their copies of the agreement with a mark of state registration. It is not necessary for everyone to come to the MFC together; everyone can do this at any time. The recipient will also receive an extract from the Unified State Register of Real Estate about the property, which will indicate that he is now the owner of a share in the apartment. Registration certificates have ceased to be issued since July 2016. You must have passports and receipts issued by the employee with you.

When the donor and the donee are not close relatives, the donee is obliged to pay a tax - 13% of the cadastral value of the donated share (clause 18.1 of Article 217 of the Tax Code of the Russian Federation). Donors do not pay any taxes after the gift, since they do not benefit from the transaction. For a minor recipient, the tax is paid by parents or guardians.

If the transaction was executed by a notary, he notifies the tax office about the transaction within five days - this obligation is specified in clause 6 of Art. 85 Tax Code of the Russian Federation.

After completing the donation procedure and taking ownership of the apartment, the recipient has the right to register in this apartment.