Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

Forced redemption of a share in an apartment through the court is possible if the conditions provided for in Art. 252 of the Civil Code of the Russian Federation. The provisions of this article regulate the division of property in shared ownership and the allocation of a share, including the procedure for paying compensation if it is impossible to allocate a share in kind.

252 of the Civil Code of the Russian Federation in its own way created a precedent: it is possible to deprive the right of ownership of a share and force it to be sold, thereby paying the former owner appropriate compensation. Of course, there must be legal grounds and conditions for this. This is discussed in our article.

Problems of forced buyout of shares

The positions of the highest court are positions on specific cases, taking into account their individual characteristics. Therefore, it is not at all a fact that in your case forced redemption is possible in principle.

It seems problematic to prove:

the insignificance of the share is a purely evaluative sign;
the owner lacks a significant interest in the use of the property, in general, and not just in part of his share;
impossibility of allocating a share in kind.

Situations can be very different, so you need to look and analyze everything purely individually. However, decisions of the Supreme Court can be used as a way to influence the owner of the share planned for redemption.

It is almost impossible to forcibly buy out a share, that is, to actually forcibly deprive the owner of ownership and evict him, if the owner of this share lives in an apartment (house), or this is his only home.

True, “practically impossible” means one exception: the owner of the purchased share behaves antisocially, does not fulfill the responsibility for maintaining the housing, causes damage to property, or otherwise shows disinterest in the normal use of the apartment.

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

Two sides of the same coin

The possibility of forced redemption of a share through the court may please some and sadden others. As is typical of Russian reality, in apartment wars any right often becomes abused.

However, the cases recently considered by the Supreme Court were only the “first sign”.

Judicial practice is expanding, and the courts are no longer as categorical as they were 5 years ago: claims for deprivation of the right to a share and its redemption are being satisfied more and more often.

If you want to buy out a share or measures are being taken against you to force you to cede a share, today there is no point in going to court without serious legal support.

Judicial practice is still too “raw”, decisions of courts of different instances are ambiguous, each case must be analyzed individually. Quite often, it is more profitable not to bring the case to court, but to resolve the issue of payment of compensation during negotiations.

If you are confident that you are right and do not want to make concessions, then all that remains is to sue, and with the prospect of reaching the Supreme Court.

Source: http://law03.ru/housing/article/prinuditelnyj-vykup-doli-v-kvartire-cherez-sud

Forced purchase of a share in an apartment 2018

Content:

In our country, the principle of inviolability of property has been proclaimed and enshrined in Art. 35 of the Constitution of the Russian Federation.

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

The civil legislation of the Russian Federation establishes the rights of the owner to own, use and dispose of his property (Article 288 of the Civil Code of the Russian Federation).

There are often cases when one piece of real estate in the form of a residential premises (apartment, room) belongs to several persons (shared ownership - Art.

244 of the Civil Code of the Russian Federation), while co-owners can be either members of the same family or complete strangers who became owners for various reasons: as a result of inheritance of shares, division of property, purchase of a share, including at auction, etc. .

If the owners of shares cannot peacefully agree on the procedure for using the residential premises, then it is established by the court (Article 247 of the Civil Code of the Russian Federation). But this applies to cases where the shares of property participants correspond to individual premises in the apartment.

However, in practice it happens that the share of one of the participants in shared ownership is very small, and even tiny, and the largest part belongs to the other owner.

In such cases, joint ownership and use of property is impossible, since the microshare of one of the homeowners does not correspond to a separate room in the apartment, but constitutes a very small area, the use of which always involves a violation of the rights of the other owner.

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

In this case, determining the procedure for using the apartment is impossible even in court, since this requires the technical ability to divide not only residential, but also utility rooms in the apartment.

The owner who owns the main area tries to come to an agreement with the owner of a small share of the housing, offering to buy out the share, but it is rarely possible to reach an agreement, since the value of such small shares on the real estate market is very insignificant, and the owner does not want to part with his meters, although he understands that he cannot actually use it without violating the rights of his neighbor.

In such circumstances, the dispute can only be resolved in court. Judicial practice in cases of forced redemption of shares in residential premises is extraordinary.

Grounds for buying out the owner's share in court

Termination of property rights is possible only in cases specified by law: when the owner alienates his property to other persons, destruction or destruction of property, renunciation of property rights and in other cases of loss of property rights.

For the forced seizure of property from the owner, legal grounds are required, the list of which is listed in Article 235 of the Civil Code of the Russian Federation, and is exhaustive.

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

One of these grounds is the alienation of property provided for in paragraph 4 of Article 252 of the Civil Code of the Russian Federation.

This provision of the law provides that payment of compensation to a participant in shared ownership instead of allocating his share in kind is allowed only with his consent. However, the court may, even in the absence of the consent of this owner, oblige the remaining owners to pay him compensation, but only in the presence of a combination of three exceptional circumstances:

The share of this owner is insignificant (for example, 1/21 share in the common property)
The share cannot be actually allocated (cases when it is an apartment or room with one entrance, there is one bathroom, one kitchen)
This owner does not have a significant interest in the use of the common property (he does not actually live in the residential premises and does not need this housing)

If only one or two of these factors are present, forced redemption of a share is impossible. It is no coincidence that the legislator established the need for the simultaneous presence of these factors, since otherwise the balance of interests of participants in common property will be upset.

For example, if the owner of a microshare, nevertheless, lives in this premises and has no other housing, then this indicates that he has a significant interest in using his share. In this case, even the fact that the share is insignificant and the impossibility of allocating it will not be grounds for depriving him of housing.

In addition, according to the position of the Constitutional Court of the Russian Federation in a number of definitions (including dated October 13, 2009 No. 1359-О-О), the court, when considering a case and resolving an issue and whether or not a person has a real interest in using a minor share, must also establish how commensurate this interest is with the inconvenience that may be caused to the other owner.

Free legal advice: Forced sale of a share in an apartment through the court, how to force the sale of a share in an apartment through the court

In practice, the courts also find out when and how the ownership of each of the co-owners arose, whether the owner acquired an insignificant share, knowing that the largest part of the residential premises belongs to someone else, and that his small share will not allow him to live in this premises together with others ; whether the owner of a small share abuses his right, for example, using his share to register other persons, trying to rent, etc.

Conclusion: Judicial redemption of a small share in the common property is possible, despite the complexity of these disputes.

Judicial practice on forced purchase of a share in an apartment

The case at the first instance was conducted by two Moscow lawyers - Igor Putilov and Yuri Ushakov. Forced redemption of a share in an apartment is possible under a number of circumstances. It is very important not only to declare these circumstances, but also to provide the court with evidence to support this. The court, both at first instance and in appeal, recognized the demands for forced purchase of a 1/4 share of a 2-room apartment as legal.

Please note that the defendant wanted to receive 1,590,260 rubles for 1/4 share of the apartment , with the market price of the apartment being about 6 million rubles, and the court sided with our client - 728,000 rubles .

The client saved 860,000 rubles on this alone by filing such a claim for forced buyout of the share with our help.

We recommend that you carefully read this Court Ruling; there are a lot of legally important points there – it reads like a bestseller.

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APPEAL DECISION

Judge Voronkova L.P.

Case No. 33-25428

July 6, 20xx Judicial Collegium for Civil Cases of the Moscow City Court , consisting of presiding Rastorgueva N.S., judges Leonova S.V. and Sherstnyakova L.B., with secretary Shuptyrova Yu.N., having heard in open court, on the report of judge Rastorgueva N.S., the case on the appeal of the representative of the plaintiff L. - plaintiff L.

on the decision of the Kuntsevsky District Court of Moscow dated March 13, 20xx, which decided: To satisfy the claims of L. against Ya. in the person of the legal representative of the incompetent - V. and lawyer Ushakov Yu.A.

on determining the procedure for using the apartment, the obligation not to interfere with the use of the apartment, the obligation to provide a set of keys to the locks of the entrance door to the apartment - refuse.

The counterclaims of the legal representative of the incapacitated Y. - V. to L. for termination of ownership of a share in the ownership of an apartment, payment of compensation for a share in the ownership of an apartment, recognition of ownership of an apartment , and collection of legal expenses are satisfied.

To recover from Ya. in favor of L. compensation for a 1/4 share in the ownership of residential premises - an apartment located at the address: Moscow, st. Grishina, house x, apt. xx in the amount of 728,000 (seven hundred twenty-eight thousand) rubles.

Recognize for Ya. the ownership of the apartment located at the address: Moscow, st. Grishina, house x, apt. xx.

The date of entry into force of this decision is considered the moment of transfer of ownership rights.

The decision and transfer of ownership are subject to mandatory state registration in the Office of the Federal Service for State Registration, Cadastre and Cartography in Moscow.

The decision is the basis for entering into the Unified State Register of Rights to Real Estate and Transactions with It a record of Ya's ownership of the apartment located at the address: Moscow, st. Grishina, house x, apt. xx. To recover from L. in favor of V. legal costs for payment of the assessment report in the amount of 7,000 (seven thousand) rubles.,

installed:

L. filed a lawsuit against Ya., represented by the legal representative of the incapacitated woman, V., to determine the procedure for using the apartment, the obligation not to interfere with the use of the apartment, and the obligation to provide a set of keys to the front door locks.

In support of the stated claims, the plaintiff indicated that she is the owner of a 1/4 share of a two-room apartment with a total area of 37.9 sq.m., a living area of 23.7 sq.m., located at the address: Moscow, Grishina St., bldg. , apt.xx, the owner of 3/4 shares of the apartment at the above address is Ya.

There is no agreement on the procedure for using the apartment between the owners. The defendant refuses to sign such an agreement.

The plaintiff does not have keys to the apartment and she does not have access to the disputed residential premises, in connection with which the plaintiff asked to determine the procedure for using apartment No. xx, located at the address: Moscow, Grishina St., bldg. room No. 1 with a living area of 14.7 sq.m., behind the L.

- room No. 2 with a living area of 9.6 sq.m., leave the kitchen, restroom, bathroom, corridor and balcony for common use, oblige Ya. not to interfere with the plaintiff’s use of the apartment, oblige Ya. to provide the plaintiff with a set of keys to the front door locks in apartment for free access.

During the consideration of the case, the legal representative of the incapacitated Ya. - V., filed a counterclaim against L. for termination of ownership of a 1/4 share in the disputed apartment , recognition of Ya.'s ownership of the entire apartment, recovery from Ya. in favor of L. .

compensation for the share in the ownership of the specified apartment in the amount of 701,000 rubles , termination of L's right to use this apartment, recovery from L. of legal costs for the services of a representative in the amount of 701,000 rubles and the cost of producing a report in the amount of 7,000 rubles.

In support of the stated claims, the plaintiff in the counterclaim referred to the fact that L.’s 1/4 share in the disputed apartment accounts for 9.48 sq.m. of the total area of the apartment and 5.9 sq.m. of living space, and given that the minimum living area The room in the disputed apartment is 9.6 square meters.

m, then the plaintiff in the original claim unreasonably demands to allocate an entire room to her in kind, which will violate and infringe on the rights of Ya, as the owner of a larger share of the apartment. L. never moved into the disputed apartment, did not live in it, the parties are not relatives, the rooms in the apartment are adjacent and not isolated. I.

is a disabled person of group I and suffers from a mental illness, which makes it impossible for the parties to live together in adjacent rooms. L. is provided with housing and lives with her separate family at a different address. L., both herself and through representatives, proposed to V.

buy out her share, but the price she set was significantly higher than the market price. According to the assessment report of Modern Valuation and Consulting Technologies LLC, the market value of a 1/4 share in the disputed apartment is 701,000 rubles, which Y. is ready to pay L.

During the consideration of the case, the legal representative of the incapacitated R. - V. clarified the counterclaims, according to which she asked to terminate L.'s ownership of a 1/4 share in the ownership of the apartment located at the address: Moscow, Grishina St., d.x, sq.

xx, recognize Ya.'s ownership of the said apartment, recover from Ya. in favor of L. compensation for a 1/4 share in the ownership of this apartment in the amount of 728,000 rubles, terminate L.'s right to use the disputed apartment, recover from L.

expenses for producing an apartment assessment report in the amount of 7,000 rubles.

At the hearing of the court of first instance, the plaintiff in the initial claim L. did not appear, ensured the appearance of her representative B., who supported the initial claims, asked the court to satisfy them, Ya. did not recognize the counterclaims, and asked the court to refuse to satisfy them.

Representatives of the defendant, incompetent Ya. - V. and lawyer Ushakov Yu.A. They appeared at the court hearing, did not recognize the initial claims, asked the court to refuse them, supported the counterclaims in full, and insisted on their satisfaction.

The representative of the third party of the Office of Rosreestr for Moscow did not appear at the court hearing, was duly notified of the time and place of the court hearing, and did not inform the court of valid reasons for his failure to appear, in connection with which the court considered it possible to consider the case in his absence in accordance with Art. 167 Code of Civil Procedure of the Russian Federation.

The court made the above decision, the repeal of which is requested by the representative of the plaintiff L. - L. based on the arguments of the appeal.

How to sell a share in an apartment through the court? | Lawyer Belyakova Inna

Do you want to sell your share in the apartment through the court?

If an apartment has several co-owners, each of whom owns some share, one of the owners may want to buy out the shares of the others in order to become the full owner of the property, or simply increase their own share. The easiest way is to reach an agreement with the co-owners, but they are not always ready to sell their shares. What to do? It is possible to oblige co-owners to sell shares in the apartment through the court , but this is a very complex procedure for which a number of requirements must be met.

In this article we will look at in what situations this is possible and how to correctly implement the entire process.

The Civil Code of the Russian Federation, or more precisely, in the part that concerns the division of property in common ownership, describes the possibility of claiming the right to a share of an apartment through the court , that is, forcing other co-owners to sell their shares forcibly, even if they do not agree to a similar deal. But for this to happen, three conditions must be met:

The share of this owner is insignificant. There is no specific definition of what can be considered an insignificant share in the Civil Code, and this is usually determined by the court in each specific case. Most often, the accounting standard for housing in a given region is used, that is, the minimum area that should fall per resident;
the share cannot be identified in kind. Although shares in kind in apartments are allocated extremely rarely, this is not prohibited by law if certain requirements are met (separate entrance, sufficient space, access to all necessary premises, etc.). If it is impossible to allocate a share, this is the basis for a forced sale through the court;
the owner of part of the apartment is not interested in using it. This is the most controversial rule in the law, since it is very difficult to directly determine a person’s interest in using real estate. Therefore, indirect signs are usually used: the co-owner does not live in the apartment, is not registered in it, and no obstacles are created for him to use the housing. But, in any case, in the end the last word still belongs to the court - there are precedents when, even when living in an apartment, a co-owner was recognized as uninterested in using the housing.

It is very important to remember that in order for the court to order the sale of a share in an apartment , all three conditions must be met. If at least one thing is not observed, the court will not support the applicant’s demands and refuse to force the sale of the share.

If you want to achieve the redemption of shares in an apartment through the court, you need to carefully prepare. The procedure consists of the following main steps:

1. Collection and preparation of documents.

In court, you will need to prove that you really have grounds for forced redemption of the share, that is, the conditions specified in Art. 252 of the Civil Code of the Russian Federation and those listed above.

This will require documents indicating the shares of all co-owners, an expert’s opinion on the impossibility of allocating a share in kind (or at least a technical housing plan that would indicate the same), as well as confirmation that the co-owner is not interested in using part of the real estate belonging to him (for example, an extract from the house register, which indicates all the persons registered in the apartment, testimony of witnesses that the defendant does not live in this living space and does not appear at all, etc.). Evidence that there have been attempts to resolve the conflict out of court (for example, formal written sales offers, witness statements, etc.) may also be useful. Among other things, you will need the applicant’s passport, confirmation that he is indeed a co-owner of the disputed apartment, as well as a receipt for payment of the court fee (this is necessary to file a claim in court and have it considered).

2. Drawing up a statement of claim.

The claim is drawn up in free form, but must contain the following information:

information about the plaintiff (the one who wants to buy out the share) and the defendant (owner of the share) - full name, registration address, contact information;
the name of the court where the case will be heard;
justification for buying out a share through the court - confirmation that the share is too insignificant, it cannot be allocated in kind and the owner does not plan to use his part for its intended purpose. This section provides references to evidence prepared earlier;
other circumstances and facts related to the dispute - how the parties received the apartment in joint ownership, when the conflict arose, what were the options for resolving it before going to court, etc. If it was previously proposed to buy out the share, this also needs to be indicated;
requirements - one requirement is indicated here: to oblige the defendant to sell the share at the market price at the time of the transaction.

At the end there is a list of documents that are attached to the statement of claim. When filing a claim, it is recommended to seek help from a real estate lawyer . He will also be able to represent your interests in court during hearings in the future.

A district court is selected to consider the case at the location of the disputed real estate. The statement of claim along with all documents is submitted to the court office in person, by registered mail or via the Internet, a copy is also sent to the defendant in the case. If the claim is drawn up correctly, the court will accept it for consideration and set a hearing date.

During the review process, the judge will study all the materials of the case and make a verdict on whether the applicant’s demands should be satisfied.

The court decision takes into account whether the share in the apartment is considered insignificant , whether it is possible to allocate a share in kind, whether the owner is interested in using the part of the property belonging to him.

If it can be proven that all three conditions are met, the court will oblige the co-owner to sell the share to the plaintiff. Of course, this decision can later be challenged on appeal.

Conclusion

The owner of a large share in real estate has the right to buy out smaller shares, subject to certain conditions. If you cannot reach an agreement peacefully, going to court can help. To achieve the exercise of your legal rights, you should use the help of a lawyer specializing in real estate.

Can a court force me to sell an apartment?

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The question of whether a court can oblige the sale of an apartment often arises during a divorce, or when there are debts on loans or for utilities. It is no coincidence that the sad prospect of losing their home worries people.

Thus, many banks and debt collectors use dubious methods of psychological influence, threatening debtors with repossession of their apartments. But there is no need to panic in advance.

It is better to figure out whether it is really possible to force a person to sell real estate through the court and how to avoid this.

Sale of part in shared ownership

It happens that practically strangers live on several tens of square meters. The property could have been given to them, for example, as a gift or by will.

If one of the owners wants to sell his part of the housing, he must first offer to buy out the share of the remaining residents. If they refuse, part of the apartment may be sold to outsiders.

Even if only two people own the apartment, it will not be possible to sell the share to third parties without the consent of the second owner.

There are also opposite situations: one of the owners wants to buy the entire property and forces the others to sell their shares. But it is impossible to oblige the owner to part with the property he owns, even in court.

However, Article 252 of the Civil Code of the Russian Federation provides for some exceptions. The owner can be forced to sell his part of the premises for compensation for his share in the apartment in the following cases:

Living space belonging to a person is not subject to allocation in kind;
The owner does not plan to use the property for its intended purpose;
The share owned by the owner is insignificant.

The downside is that the law does not establish clear criteria that should guide the judge. For example, either 1/20 of the ownership of the premises or 1/4 of the property may be considered insignificant.

Each case is considered individually, and much depends on the arguments of the parties and the evidence they present.

The judge must understand whether a monetary payment is suitable for a person or whether he really needs a share.

Is it possible to sell a home for debts?

The number of debtors for credit and utility debts in Russia is steadily growing. Of course, people who find themselves in a difficult situation are concerned about the question of whether their housing will be taken away if debt has accumulated.

The court does not have the right to oblige the owners to part with their living space in this case either. The debtor is always given time to fulfill the decision, and he himself decides from what means to repay the debt. If there is no money for repayment, you can apply for a deferment or installment plan.

In the worst case scenario, the property may be seized and sold at auction. This is possible in two cases:

If there is another housing in which the family could live.
If the residential premises are subject to collateral. To sell it, it is necessary that the period of delay exceeds 3 months, and the amount of debt is commensurate with the value of the pledged property.

The sale of seized real estate is carried out by bailiffs. The procedure is carried out in strict accordance with the law. In general, in Russia there are not many cases of apartments being sold by bailiffs. The victims are mainly people who took out mortgage loans and failed to repay.

Sale of living space during property division

Often problems with real estate arise after a divorce. If a marriage contract is concluded between the spouses, everything is resolved simply: each party receives what is due under the contract. In the absence of a contract, the square meters belonging to the husband and wife before marriage remain with each of them.

Property that is recognized as jointly acquired property, including real estate, is subject to division. When partners cannot resolve financial issues amicably, they have to go to court.

In most cases, each spouse gets half of the living space. If it is impossible to allocate a share in kind (for example, the family lives in a room or one-room apartment), a decision is made on forced sale. The second spouse receives monetary compensation.

The decision to sell housing during a divorce, if a child is registered there, is made taking into account the opinion of the guardianship authorities. According to the laws of the Russian Federation, the share owned by a minor owner is his only home.

If the apartment is sold, the child's rights will be infringed. To obtain the consent of the guardianship service, it is necessary to prove that the minor shareholder will become the owner of the residential premises, which will be no worse than the previous one.

In addition to the presence of children, when deciding on the division of living space, the judge takes into account other factors:

Income level of husband and wife;
The percentage of income that is spent on the maintenance of minor children;
One of the spouses has additional real estate;
The presence of any of them with serious diseases;
The contribution that each spouse makes to the maintenance of the apartment.

The sale of residential premises for alimony debts by court decision occurs in exceptional cases. The responsibility for selling real estate at auction rests with the bailiffs. If the apartment is the only home and is not under mortgage, it is impossible to force the debtor to sell it.

Selling a home with a mortgage during a divorce

The issue of selling mortgaged housing is resolved in a special manner. Its implementation is possible only with the permission of the credit institution. The situation is exactly the same with new buildings purchased with borrowed funds under a preliminary agreement.

If the bank agrees to the transaction, the living space is sold. After settlements with the creditor, each spouse receives the cash equivalent due to him.

In cases where the bank does not agree to the sale, the mortgage will have to be paid further. After repaying the debt, the spouses can sell the home and divide the money. In addition, one of the spouses can refuse a mortgage loan and an apartment in favor of the other.

According to Part 1 of Article 209 of the Civil Code, the owner has the right to own and dispose of his property. It is possible to deprive him of this right and force a person to sell an apartment only in exceptional cases. If the defendant believes that his rights have been violated, he has the right to appeal the decision within the period prescribed by law.

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Selling a share under duress: judicial practice

07/07/2014 Views: 9870

If the co-owner of an apartment, whose share is insignificant, does not want to sell it, while annoying other owners, the conflict can be resolved through the court.

If the co-owner of an apartment, whose share is insignificant, does not want to sell it, while annoying other owners, the conflict can be resolved through the court. Details are in the material of the legal consultant of the Novosibirsk Real Estate.nn-baza.ru portal.

There is one apartment, many owners - such situations often arise when inheriting real estate. When there is no agreement among the comrades, the living space turns into a constant battlefield: for example, to register a family member, the permission of the other co-owners is necessary. What to do?

Article 252 of the Civil Code of the Russian Federation provides for the possibility of forced redemption of a share, which is permissible in the absence of the consent of its owner. Only a court can oblige participation in such a transaction, and then only if the following conditions are met: the share is insignificant, cannot be allocated in kind, and the owner does not show interest in using the common property.

For example, citizen N. owns 1/20 of the ownership of a one-room apartment in which he does not live, does not store his things, does not pay for housing and communal services - if so, the other co-owners offer to buy this “piece” from him, but N. refuses.

Taking into account all the circumstances, the court may oblige the remaining owners (or the owner of the majority) to pay N. the redemption price, after which the latter will lose the right to the share.

The redemption price is set based on the results of an assessment, which is carried out at the request of the parties or a court decision, with the involvement of experts.

To confirm the seriousness of his intentions, it is better for the buyer of the share to prove in advance the availability of funds for the redemption by providing at least a bank statement.

There is no single universal solution to such cases. The plaintiff’s primary task is to prove that the shareholder with a “minor part” has no desire to use it.

An extract from the house register will confirm the absence of registration, and receipts where the defendant is not indicated as the payer at all will indicate his reluctance to bear the costs of maintaining the apartment. It would also be useful to have neighbors testify that this “tenant” never appeared at this address.

Unfortunately, the law does not provide a clear definition of an insignificant share, so the court’s decision largely depends on whether it is possible to allocate it to a separate room for full use or not.
When the owner of a small share lives in an apartment, regularly pays utilities and has no other housing, it will no longer be possible to pay compensation and say goodbye to him.
Indicative in this regard is determination No. 5-B11-134, which was issued by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on April 3, 2012, using the example of a situation with one Moscow apartment.

In 1999, a woman bought a three-room apartment and after some time registered her husband in it. The family relationship did not work out, and during the divorce in 2008, the court divided the property as follows: 13/14 for the wife and 1/14 for the husband.

The man no longer lived in this living space, and a year after the divorce proceedings, under a lifelong maintenance agreement with dependents, he transferred his two and a half (!) square meters to his son. He, in turn, having registered in the apartment as his place of residence, no longer showed any interest in the property.

A few months later, the father broke the contract with his son and the owner of a small share, again under a maintenance agreement, became the ex-husband’s new wife, who registered there, but did not actually live.

The owner of the main share did not want to put up with the frequent change of co-owners and went to court with a demand to force the wife of her ex-husband to sell 1/14. However, she filed a counterclaim, expressing a desire not only to move into the apartment, but also to allocate herself a room with an area of 11.4 square meters.

The first court refused to satisfy the plaintiff’s demands and, in response to a counterclaim, moved the man’s wife into the apartment, but still did not allocate the “squares” she requested.

The Judicial Collegium for Civil Cases of the Moscow City Court upheld the decision of the “junior colleagues”.

And only the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation sided with the woman, noting that the courts of the first and cassation instances significantly violated the norms of substantive law.

Firstly, 1/14 of the share in the disputed apartment is only 3.8 square meters, of which only 2.5 “square meters” are residential, and there are no rooms of this size in “three rubles”, so it is impossible to allocate them for use.

Secondly, it was noted that before filing a claim for termination of ownership of the 1/14th share, the defendants did not make any claims, thereby agreeing with the existing procedure for using the disputed apartment.

Thirdly, the “supreme” judges clarified that it is not possible to move the owner of 2.5 “square meters” into an apartment without violating the rights of the second owner, since the tenant uses common property (kitchen, bathroom, toilet and corridor) in proportion to his share, which in this case is minuscule.

In addition, the highest authority indicated that there is an “exceptional case when the object cannot be used by all co-owners without violating the rights of the owner with a larger share,” and protecting the interests of the latter is possible only through forced payment of monetary compensation to the other party.

At the same time, the court, taking into account the results of the expert assessment of the disputed property, lowered the redemption price to 371,736 rubles, while initially the owner of the 13/14 share was offered 400,000 rubles.

With this case, the Supreme Court, although it did not form a unified template for resolving such disputes, did show how courts should consider cases of shares.

Anastasia ZAGORUIKO

Photo from the website galaktikariel.ru, www.obmen.ru

Forced purchase of a share in an apartment through the court (judicial practice 2017 in Moscow) | Gordon and Partners

A. Gordon

Lawyer Gordon A.E

What to do if you need to buy out a share in an apartment?

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When considering the demands of co-owners of shares in apartments for forced redemption - for a paid transfer of the share to another owner, the courts proceed from the following rules.

The purchase of a share from a participant in common shared ownership can be carried out by agreement between the participants in the common property, and if agreement is not reached, by a court decision (Article 252 of the Civil Code of the Russian Federation).

An important condition of the article of the code, which creates an obstacle to the pre-trial settlement of the issue, is that payment of the value of the share is possible with the consent of its owner (Part 4 of Article 252 of the Civil Code of the Russian Federation).

In most situations, the parties cannot agree, then a violation of the interests of one of the parties follows, and then the courts.

Depending on the situation, this is the repurchase of a share through the court, termination of the purchase and sale transaction through the court, transfer of the buyer’s rights to oneself, or invalidation of the gift.

On the one hand, the rules of Art.

252 of the Civil Code of the Russian Federation corresponds to the constitutional right to protect private property; on the other hand, the remaining participants in shared ownership are the same owners, and their right of ownership (the ability to use property) is limited by the rights of the owners of other shares. But often, restrictions are imposed by the owners of a small share. And in the latter case, this article of the Civil Code of the Russian Federation still creates difficult legal situations.

Considering in 2016 one of the cases of “forced” buyout of a share from a participant in shared ownership (apartment), the Supreme Court of the Russian Federation described the general principle of the judicial forced buyout of a share of an apartment.

When implementing such an extreme method of resolving disputes, the courts are obliged to establish the SIMULTANEOUS presence of circumstances with which the legislator, in Article 252 of the Civil Code of the Russian Federation, allowed the use of such a forced payment to the owner:

when the owner's share is insignificant,
the share cannot be realistically allocated,
the owner of the share does not have a significant interest in the use of the common property.

Minor share

There is no criterion for the insignificance of a share in the code, which gives rise to disputes and abuses between participants in common property.

Since common ownership can arise for various types of property (movable, immovable, industrial, etc.), taking into account the legal position of the Supreme Court of the Russian Federation, in each case of a dispute over the forced purchase of a share, the dispute must be resolved by the courts, taking into account specific circumstances, establishing the fact that the share is insignificant.

Thus, resolving a dispute about the forced purchase of a small share in an apartment in Moscow, the court made decisions solely on the totality of circumstances (appeal ruling of the Moscow City Court dated March 30, 2017, file No. 33-11815), including determining the share in the common property as insignificant.

Facts of the case: The plaintiff owned a share of a 2-room apartment measuring 19/20, and the defendant had a 1/19 share. The defendant lived in the apartment. He prevented the plaintiff from entering. The defendant had other residential premises.

The court satisfied the claims.
Reasons for the decision:
Resolving the dispute and satisfying the claims, the court came to the conclusion that the legal relations that arose between the participants in shared ownership regarding the property - a two-room apartment - indicate the existence of an exceptional case when this object cannot be used by the owner _______, who has a smaller share in the property right, according to its purpose (for residence) without violating the rights of the owner who has a large share in the property right, that is, the rights of _______.
The court of first instance made this conclusion based on an examination of the factual circumstances, which allowed the court to establish:
- the defendant does not have a significant interest in the disputed residential premises,
- has the right of ownership of another residential premises,
- extremely hostile relations have developed between the parties regarding the procedure for using the residential premises, its payment and maintenance, which prevents them from living together in the same residential premises without allocating their shares in kind.

The justification for the impossibility of sharing an apartment allows the court to conclude that it is necessary to allocate shares in kind. And only then, taking into account this circumstance, does the court’s assessment of the size of shares for their allocation in kind become justified.

In the case under consideration, the Moscow District Court, with which the Moscow City Court later agreed, established that the defendant’s share in the apartment was insignificant:

The defendant’s share accounts for 1,535 square meters of living space, which cannot be an independent object of housing rights and cannot be allocated in kind, and therefore there is no real possibility for the defendant to use the living space that falls to his share in the disputed residential premises.

The court of first instance made this conclusion based on the evidence in the case, according to which:

According to the unified housing document, the apartment located at: .... is a two-room apartment, the total area of the apartment is ... sq.m., living area is ... sq.m. (one room... sq.m., second... sq.m.).

The plaintiff’s share is ... sq.m of living space, the defendant’s is .... sq.m of living space.

From the above “fresh” decision on the forced purchase of a small share in an apartment by a court decision, upheld by the appellate instance of the Moscow City Court, an unambiguous conclusion can be drawn.

The insignificance of the share is determined by the court taking into account the specific circumstances of the case. In this case, the 1/20 share of a 2-room apartment could not be the object of housing rights, since it accounted for 1,535 sq.m. living space. And if the same share accounts for 15.35 sq.m? For example, if an apartment of 400 sq.m. For Moscow, this is a very real option.

We believe that in this case the court's decision could have been different. But then the plaintiff could have brought other arguments.

May 28, 2017

Moscow

Lawyer Gordon A.E.

The owner of a share in an apartment can be forced to sell it - Housing Market

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25.09.2014 | 15:20 161166

The owner of a larger share in an apartment may, by a court decision, pay compensation to the owner of a smaller one, even against his wishes. For a long time, this was impossible, but the Supreme Court of Russia created a precedent.

In 2012, the Supreme Court, while considering a dispute between several owners of one apartment, made a revolutionary decision. Each of them had shares in common real estate.

Having considered all the arguments and previous court decisions, the Supreme Court ruled: the rights of the owner of a larger share can be protected by forced payment of monetary compensation.

In this case, the owners of a significantly smaller share lose their right to it.

The painful legacy of privatization

The opportunity to sell and buy not only entire apartments, but also parts of them arose for citizens in the early 1990s, when the property law was adopted. And the shares appeared due to the fact that the apartment could be privatized for several people - both family members and simply citizens registered in it. Since then, shares have become a hot commodity.

“Based on the analysis of Rosreestr data, the number of purchase and sale transactions with shares in residential premises in St. Petersburg is about 40% of all registered,” says Marina Chizhkova, head of the Center for Research and Analytics of the Real Estate Bulletin Group of Companies. – And this is only purchase and sale, but there is also donation, inheritance, etc.

So this figure could be much higher.”

Citizens often purchase only a couple of meters in order to obtain registration. And sometimes this is done for unseemly purposes - to move in, turn the lives of neighbors into hell and, in the future, take over the entire living space.

Other unscrupulous realtors with connections to the criminal world specialize in trading shares in apartments. The former carry out transactions, the latter provide pressure. It also happens that one fine day one of the owners has his own interests that diverge from the interests of everyone else. At the same time, someone may own a tiny share of the entire apartment, just a couple of square meters. Legally, such an owner has every right to use it - to live, sell, rent, or register a spouse or child there. But practically this is nonsense, because it is impossible to use a couple of meters without violating the boundaries of neighboring property. When the owner of a small share is ready to give it up, then everything is very simple. He either donates or sells his meters to a co-owner. True, the latter is not always ready to pay. Especially when they demand from him that part of the market value of the apartment, which he has been using for a long time without any obstacles from the outside (co-owners with such small shares most often live somewhere else).

In this case, you can notify your “wealthier” neighbor of your intention to sell your share in the apartment. He can exercise the pre-emptive right to purchase within 30 days. If the right is not used, then it can be sold to third parties.

Whether there are such people is another matter. After all, if the share is not a separate room in a communal apartment, but a few meters unsuitable for living on them, then few people need such a deal.

In this case, the owner of the larger share is sued in order to force him to buy out the smaller share. And there were such court decisions.

Tushino case

But the opposite situation is much more interesting, when the owner of a larger share wants to become the sole owner of the apartment, but the owner of the smaller share resists this in every possible way. For two decades since the start of privatization, there have been no precedents in Russian judicial practice when a decision was made to oblige the owner to sell his share in an apartment.

However, relatively recently the Supreme Court of the Russian Federation created such a precedent. It was in the capital. Citizen N filed a lawsuit against her ex-husband. Once she bought a three-room apartment and registered her husband in it. The marriage broke up. The district court recognized the woman's 13/14 shares in the apartment. The ex-husband got 1/14. Its share, in terms of area, corresponded to 2.5 square meters.

m of living space. After the divorce, the ex-husband did not appear in the apartment and did not cause any concern to citizen N. But after some time, he signed a lifelong maintenance agreement with his son from another marriage. He registered in the apartment himself and registered his daughter. Then the contract with the son was terminated, but a new one - the same - was signed with the daughter-in-law.

She has already become the owner of 1/14 share. As a result, two parents, a minor child and the ex-husband of citizen N are registered in 1/14th of the apartment.

Citizen N filed a lawsuit with the Tushinsky District Court, where she demanded to terminate the ownership rights of her ex-husband's daughter-in-law to 1/14 of the share, to provide her with the opportunity to pay her daughter-in-law compensation for the share and to deregister all strangers to N, including a minor child (daughter-in-law's son). The family of four had no intention of backing down.

Moreover, in the counterclaim they demanded not only that they not be prevented from moving into the disputed apartment, but also considered it possible to determine for them the procedure for using one room in this apartment. The Tushinsky District Court partially satisfied both claims. He agreed with the woman’s claim against her husband’s son and recognized that his right to use had ceased and decided to discharge him.

However, the daughter-in-law’s counterclaim for moving into these 2.5 square meters. m the court also satisfied. The court refused all other requests from both sides. The city court left this decision unchanged. Thus, the district and city courts did not help the citizens, but only completely confused an already difficult situation. Therefore, the owner of most of the apartment decided to seek the truth in the Supreme Court.

The Supreme Court stated that both courts – the district and city courts – “substantially violated the norms of substantive law.” And he decided that the plaintiff should pay “forced compensation” to her neighbors, and the daughter-in-law’s property rights should be terminated.

Supreme logic

The Tushinsky District Court reasoned as follows. The apartment consists of one isolated room with an area of 11.4 square meters. m and two entrances of 8 and 16 sq. m. That same 1/14 share is 2.5 square meters. m of living space... but there is no such room in the apartment. According to Article 252 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), compensation for a minor share cannot be forced.

Therefore, the district court did not satisfy the claim to terminate the property rights of all newly registered residents and to pay them compensation. The court left a registration for the child, since the parents decide where he should live. One of the parents is the daughter-in-law. She is the owner of these 2.5 square meters. m. Therefore, he has the right to register his son there.

The court also left the ex-husband with a residence permit, since he was moved in with the owner, his wife, during the marriage, and after the divorce, according to the law (Part 4 of Article 31 of the RF Housing Code) “he did not lose the right to use the apartment at the place of registration.” However, the Supreme Court assessed the same situation differently. According to the Civil Code of the Russian Federation, common property can be divided by agreement between the owners.

If it is impossible to allocate a share without damaging the property, then the owner, with his consent, can receive the share in cash. The Supreme Court further reasoned as follows. It is impossible for new owners to determine the procedure for using residential premises given the size of their share.

In the same way, it is also impossible to determine the procedure for using “part of the common property commensurate with their share,” as written in Article 247 of the Civil Code of the Russian Federation. The ex-husband's relatives, including a minor, have never moved into the disputed apartment and for the owner of the majority share they are strangers. The ex-husband did not use this apartment after the divorce.

According to Article 288 of the Civil Code of the Russian Federation, residential premises are intended to be lived in, and a share of 2.5 square meters. m is unsuitable for this, since it is not possible to “isolate it in nature.” Therefore, the Supreme Court accepted the experts’ assessment, according to which a tiny share is worth 400 thousand rubles. This amount became the amount of forced compensation that citizen N sought.

Regarding the child, the court decided that the place of residence of minors is the housing of their parents, and they never lived in the disputed three-ruble note (Article 20 of the Civil Code of the Russian Federation). And accordingly, the right to use the apartment was not acquired.

Little did the plaintiff know that her claim would go down in the history of judicial practice!.. After all, this decision of the Supreme Court explains to lower courts how to apply the law in such situations, when the conflict between co-owners is seemingly insoluble.

Opinions

Director of the resettlement department of the real estate agency Home estate Arkady Leonov: “If an apartment has many owners, they cannot divide it on their own, and at the same time everyone owns other residential property, then it is quite appropriate to talk about selling small shares to a large owner. It’s another matter if this object is the only place of residence for the “small” owner. Then, of course, it will be unfair.”

Sophia Sokolova, lawyer at the real estate and investment practice at Kachkin and Partners: “With this approach, there is a very big risk that the owners of small shares in communal apartments will be blackmailed by the courts.

They say, if you don’t want to give it back in an amicable way, then we’ll go to court.

Therefore, in our view, although the Supreme Court decision described should serve as a guide for resolving issues in similar cases, courts should carefully consider each case, based on constitutional principles."

General Director of the Consulting Center for Shared Construction and Real Estate Anna Maksimova: “This is a revolutionary decision of the Supreme Court, contrary to all previous practice. Nevertheless, I don’t think that all courts will now make such decisions. Everything will depend on each specific situation.”

Text: Vyacheslav Bereznichenko Collage: Tatyana Voronina