Forced purchase of a share in an apartment through the court: procedure, statement of claim, judicial practice

The real estate market, especially the real estate market in Moscow, has a multi-million dollar turnover. It is not only the apartment itself that is valuable, but also the shares of the apartments. Concluded transactions are disputed on a variety of grounds.

The cost of the object of the dispute determines the high qualifications of lawyers who specialize in conducting housing cases and, at times, their rather narrow specialization.

Buying out shares of apartments in court is one of the complex categories of cases that require the participation of a qualified lawyer.

If it is necessary to conduct a case on the forced redemption of a small share through the court, you can sign up for a consultation with the author of the article, lawyer Yuri Vyacheslavovich Polyakov, by phone. 8 495 787 75 07, 8 495 691 38 72.

 

Do you have a significant share in the apartment, have you decided to forcibly buy out a small share of the apartment from another owner, and therefore do you need an experienced lawyer? Then you can contact us. Our phones: (495)691-38-72, (495)787-75-07, (495)782-76-77.  

Currently, the legislation does not limit the turnover of shares of apartments, and the provisions of the Housing Code of the Russian Federation classify such objects as residential premises with all the ensuing consequences (the right to residence, occupancy, etc.).

Unstable judicial practice, different approaches of courts (often mutually exclusive, when in a similar case there are different decisions of courts not only in different regions, but also in the same region, the city of Moscow) - all this requires a careful and thorough approach to the conduct of such cases. Since the turnover of shares is currently not limited by the size of the share, the question arises: can the owner of a larger share (for example, 78 shares in the ownership of an apartment) demand in court the redemption from another owner of a smaller share (18) and if so, what facts influence the court's decision and are there any facts that, despite the insignificance of the share, exclude the redemption of the share in court (owners living in the apartment, their registration in the apartment at the place of residence, the quality of the apartment, etc.). First of all, filing a claim for the redemption of a share in an apartment presupposes that the plaintiff has funds to purchase a small share, as well as the correspondence of such funds to the market value of the share. In this case, the court needs to provide evidence of the availability of funds (usually a bank account statement) to purchase the share; the absence of such funds in itself does not imply satisfaction of the claim for redemption of the share. In the event of such situations, the court appoints a forensic examination, which determines the market value of the share; as a rule, the expert’s conclusion closes the question of the value of the share for the court and you need to have very strong arguments to challenge such a conclusion and achieve the appointment of a repeat examination. The question of valuing the share as such is also of great importance: is the market value of the share the corresponding part of the market value of the apartment as the object of the transaction, or is the market value of the share exactly the value of such a share in the real estate market? The point in this issue can be considered the resolution of the Presidium of the Moscow City Court dated June 24, 2011 in the case conducted by the author of the article: this resolution clearly states that the law allows the turnover of shares in the real estate market, for this reason only similar shares with market, the expert’s use of the methodology for calculating the market value of a share based on dividing the market value of an apartment into a share was declared illegal. It is necessary to distinguish between situations with the repurchase of shares in indivisible residential premises that arose as a result of inheritance and the repurchase of minor shares that arose for other reasons (usually as a result of transactions). The first group of cases has its own specifics and is not discussed in this article; general solutions to these cases are contained in Article 1168 of the Civil Code of the Russian Federation. However, there are exceptions - if within 3 years after the opening of the inheritance a claim was not filed in court in accordance with Article 1168 of the Civil Code of the Russian Federation for the redemption of a share in the ownership of an indivisible thing, then in this case the case is resolved according to the rules of Article 252 of the Civil Code of the Russian Federation, that is, such cases constitute the second group of cases on the redemption of shares. The basis for going to court in the second group of cases on the redemption of shares is Article 252 of the Civil Code of the Russian Federation, according to which: - property in shared ownership can be divided between its participants by agreement between them; - a participant in shared ownership has the right to demand the allocation of his share from the common property; - if the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property. However, if the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership; — payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is allowed with his consent. However, in cases where the owner’s share in the apartment is insignificant, cannot really be allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation. Until about 2010-2011. the practice of applying Article 252 of the Civil Code of the Russian Federation did not raise any questions: if the share was insignificant, could not really be allocated and the owner of such a share did not have a significant interest in its use, then such a share could be forcibly purchased by another owner. There were no criteria for insignificance, but usually decisions on repurchase were made when the share size was from 1 to 4 or less in the ownership of a 1-room apartment. The impossibility of actually allocating a share in practice meant the impossibility of providing a separate living space (room) for the share, commensurate in living area with the living space per ideal share. In a number of cases, such criteria as the accounting norm and the provision norm (10 or 15 sq.m. and 18 sq.m. of total area) were taken into account. The lack of significant interest in the use of the share in practice was confirmed by the presence of the owner of another residential premises, non-residence in the disputed apartment, lack of registration, and these circumstances in themselves did not entail the unambiguous recognition of such an owner as not having a significant interest in the use of the share: registration could not be confirmed the fact of permanent residence, permanent residence could be presented as such, but in fact be temporary and consist of visits to the apartment from time to time; living in a disputed apartment in the presence of other housing could raise questions about the reasons why such an owner instead of living in a separate apartment lives in an apartment where he has only a share in the ownership. Meanwhile, Article 252 of the Civil Code of the Russian Federation provides for the possibility of repurchasing a share if it is impossible to allocate the share in kind; it is in this case that the allocated owner has the right to payment of the cost of the share or he may be provided with compensation for the cost of the share even in the absence of his consent. This led in practice to the fact that when filing a claim for redemption of a share, the defendant stated that he did not allocate the share in kind, therefore the possibility of paying compensation for the share is not provided for by law. It must be agreed that this position corresponds to the literal interpretation of Article 252 of the Civil Code of the Russian Federation. At the same time, if we are talking about an apartment, then the allocation of a share in the ownership of the apartment is, as a rule, impossible, since the allocation of a share in kind means the installation of separate entrances to the apartment, separate bathrooms, kitchens, etc. Such work leads to the destruction of the load-bearing structures of a residential building, especially since such work is not always possible even purely theoretically. As explained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 N 8 “On some issues of application by courts of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation”, the allocation to a participant of common ownership of the privatized residential area, which is a separate apartment, of a share belonging to him for example, if it is technically possible to transfer to the plaintiff an isolated part of not only residential, but also utility rooms (kitchen, corridor, bathroom, etc.), and equipment for a separate entrance. In the absence of such a possibility, the court has the right, at the request of the plaintiff, to determine the procedure for using the apartment. That is, the RF Armed Forces proceed from the fact that all parts of the apartment represent a single whole. The division of an apartment in kind between co-owners, as well as the division in kind of a part of an apartment, is permissible only if it is technically possible to create two or more apartments on its basis. It follows that the owner of a small share, as a rule, is deprived of the opportunity to make a claim for the allocation of such a share in kind; the court in this case will explain that the allocation in kind is impossible, and it is possible to determine the procedure for using the apartment, but the share is insignificant precisely because the procedure for use or it is impossible to establish at all (the rooms are adjacent) or the establishment of such a procedure for use will entail the transfer to the owner of an insignificant share of a larger living space than his ideal share, which, firstly, will require the payment of monetary compensation from such an owner, and, secondly, may violate the housing rights of another owner. Thus, the impossibility of filing a claim for the allocation of a share in kind means the impossibility of applying the provisions of Article 252 of the Civil Code of the Russian Federation on the redemption of a share, which violates the rights of another apartment owner compared to the owners of residential buildings, where the allocation of a share is in principle possible. It follows from this that in this matter, the owners of residential buildings and the owners of apartments are placed in an unequal position, while both residential buildings and apartments are classified as residential premises, and the protection of the rights of the owners of residential premises is not made by law dependent on the type of residential premises. In general, the question of dividing an apartment that is in shared ownership and separating a share from it is one of the most difficult, since it is associated with classifying the apartment as such as an indivisible property or a divisible thing, the division of which in kind is possible without changing its purpose. But the main question is whether it is admissible to award compensation to the owner of a small share only in the case where the owner himself has made a demand for the allocation of a share in kind, or whether other owners have the opportunity to file a claim against him for payment of compensation, which will entail the loss of the defendant’s right to a share in the total property. A number of interesting clarifications are contained in the joint Resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 6/8 of 1996. Thus, it is possible to refuse a claim by a participant in shared ownership for the allocation of his share in kind, if the allocation is impossible without disproportionate damage to property in common ownership, such damage should be understood as the impossibility of using the property for its intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value. It is provided that if it is impossible to divide property between all participants in common ownership or to allocate a share in kind to one or more of them, the court, at the request of the separating owner, has the right to oblige the remaining participants in shared ownership to pay him monetary compensation. The question of whether a participant in shared ownership has a significant interest in the use of common property is decided by the court in each specific case on the basis of a study and assessment of the totality of evidence presented by the parties, confirming, in particular, the need for the use of this property due to age, health, professional activity, presence of children, other family members, including disabled people, etc. Important clarifications that led to a change in the entire judicial practice in these cases were given in the Ruling of the Constitutional Court of the Russian Federation dated 02/07/2008 No. 242-О-О “On the refusal to accept for consideration complaints from a number of citizens about violation of their constitutional rights by paragraph 2 p. .4 Article 252 of the Civil Code of the Russian Federation.” The court indicated that the application of paragraph 4 of Article 252 of the Civil Code of the Russian Federation is possible only in relation to a participant who has declared a demand for the allocation of his share, and only in cases of simultaneous presence of all the conditions listed by the legislator: the share of the co-owner is insignificant, it cannot be allocated in kind, the co-owner does not have a significant interest in the use of common property, for this reason the law does not imply deprivation of the owner, who has not made a demand for the separation of his share from the common property, of his property right to property against his will by paying him compensation by the remaining co-owners, since otherwise would be contrary to the principle of inviolability of property rights.

After this decision was made, judicial practice has developed in such a way that in fact neither the size of the share nor other circumstances that previously made it possible to file a claim for the redemption of an insignificant share do not allow the filing of a demand for redemption. However, some changes emerged in the summer of 2013.

, when, by a resolution of the Presidium of the Moscow City Court, decisions of lower courts were canceled, which repeated the motivation for the above-mentioned ruling of the Constitutional Court of the Russian Federation and, on its basis, refused to satisfy the claim. The Presidium indicated that the absence of a requirement for the allocation of a share does not prevent the filing of a claim for its redemption if there are other grounds specified in Art.

252 of the Civil Code of the Russian Federation. Thus, at present we can talk about a change in judicial practice in this matter, but whether the decision of the Presidium was an isolated one or whether the practice will actually be revised is currently impossible to say.

We can only say that persistence in going to court can justify itself; you should not give up, knowing about the existence of the definition of the Constitutional Court of the Russian Federation and its legal position; legal reality shows that the direction of court practice is not something eternal and unchanging, therefore, if there is grounds, you need to file a claim for the redemption of a small share and achieve your goal, going through all stages of the judicial system. The author and other employees of the Legal Protection Group of Companies will always help their clients with this.

Do you have a significant share in the apartment, have you decided to forcibly buy out a small share of the apartment from another owner, and therefore do you need an experienced lawyer? Then you can contact us. Our phones: (495)691-38-72, (495)787-75-07, (495)782-76-77

© MOCA “Legal Protection”, Polyakov Yuri Vyacheslavovich, lawyer, candidate of legal sciences

http://realtylaw.ru/clauses/2013/11/14/clauses_1367.html
ѓРїРёС‚СЊ незначител SЊРЅСѓСЋ долю квартиры?
%CC%EE%E6%ED%EE+%EB%E8+%EF%F0%E8%ED%F3%E4%E8%F2%E5%EB%FC%ED%EE+%F7%E5%F0%E5%E7+ %F1%F3%E4+%E2%FB%EA%F3%EF%E8%F2%FC+%ED%E5%E7%ED%E0%F7%E8%F2%E5%EB%FC%ED%F3%FE+ %E4%EE%EB%FE+%EA%E2%E0%F0%F2%E8%F0%FB%3F
http%3A%2F%2Frealtylaw.ru%2Fclauses%2F2013%2F11%2F14%2Fclauses_1367.html

Recommend the page to friends in:

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.

Call us now and get a consultation!

+7 (495) 135-92-11

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.

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.

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.

Forced purchase of a share in an apartment 2023

Content:

Grounds for the redemption of the owner's share in court Forced redemption of the share and pre-trial procedure How the value of a minor share is determined and paid Jurisdiction of disputes and a list of documents for filing a claim in court

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

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.

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.
• 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.

Housing lawyer in St. Petersburg Tel. +7 (812) 989-47-47 (24 hours a day) Free consultation by phone

Grounds for buying out the owner's share in court

1. 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.
2. 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.
3. 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.
4. 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 from 13.10.

2009 No. 1359-О-О), the court, when considering the case and resolving the issue and whether or not a person has a real interest in the use of an insignificant share, must also establish how commensurate this interest is with the inconvenience that may be caused to the other owner.

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 repurchase of a small share in the common property is possible , despite the complexity of these disputes.

This position is confirmed by the Supreme Court of the Russian Federation

Forced purchase of a share in an apartment through the court 2023: judicial practice, sample claim

The Constitution of Russia enshrines the right of Russians to the inviolability of private property by the provisions of Art. 35, allowing forcible deprivation of property only in court.

If there is no common decision between the parties regarding the transfer of the owner's rights through the redemption of part of the property, this can be done forcibly through court proceedings.

Appeals to the court demanding the opportunity to buy out a share in the apartment come from the co-owners of the remaining part of the property, if it was not possible to immediately resolve the issue of registration conditions peacefully.

When resolving disputes regarding private property, interested parties proceed from the norms of civil law. In particular, Art. 288 of the Civil Code of the Russian Federation empowers the owner to own, use, and dispose of property at his own discretion within the framework of actions permitted by legislative acts.

The problem of ownership and use of shared property

Privatization, maternity capital program, inheritance and other life situations provide grounds for the appearance of several owners of one property at once.

Apartments, residential premises, and other forms of real estate are subject to shared division. The provisions on shared ownership are covered in Art. 244 Civil Code of the Russian Federation.

Owners of shares become family members and persons who do not have family ties with each other (purchase of a share, inheritance, division of property).

Peaceful coexistence in an area of ​​less than 1 living room is almost impossible, which forces the co-owners to decide on the issue of further residence. Microshares can be 1/10 or 1/100 of the entire area of ​​the property, and situations are inevitable when the use of residential property entails a violation of the rights of other residents.

Grounds for forced repurchase

The need for a legislative norm that would solve the problem of forced redemption by co-owners led to the appearance of Art. 252, concerning the division and allocation of shares of property classified as shared ownership.

Based on the provisions of the article, the parties must be guided by the following procedure:

1. Shared ownership is divided between the owners on the basis of a voluntary agreement.
2. If a co-owner wishes to receive an allocated share, he has the right to declare his claims.
3. If a peaceful agreement is impossible and there are unresolved disputes about the procedure and conditions for the allocation, they go to court demanding the allocation of a share from the common property.

Often the size of the share does not allow the formation of ownership rights in the volume of a separate room, which causes violations of the rights of use of co-owners. In such situations, based on clauses 3 and 4 of Art. 252 of the Civil Code of the Russian Federation, the owner demanding allocation receives proportionate monetary compensation from other participants in shared ownership.

The order and procedure for the redemption of shares by court decision

Although the procedure does not indicate that a pre-trial settlement procedure is mandatory, according to lawyers, it is worth taking measures to achieve a common solution.

This is not difficult to do - just send a written proposal fixing the conditions for buying out the share, and wait for a written response.

If there is no response within the time limit established by the letter, you can move on to the next stage - legal proceedings.

Important! The rules of the Code of Civil Procedure of the Russian Federation do not contain a precise definition of the form of a pre-trial claim, but it is worth adhering to the general structure of the document, recording the fact of an offer to reach an agreement with the owner in a pre-trial manner. The letter must indicate the basic details of the parties and property data, with a proposal to provide a response within a specific time frame.

Procedure

The stages of forced buyout of a share can be represented by 5 main steps:

1. Collection of evidence, preparation of a statement of claim and necessary documentation.
2. Transfer of the claim to the district court at the location of the property with payment of the court fee.
3. Participation in meetings, providing comprehensive documentary evidence of signs of lack of interest in the share and its insignificance.
4. After the decision comes into force, organize the receipt of monetary compensation with recording of the fact of transfer of the amount determined by the court to the owner of the share.
5. Having prepared supporting documents for real estate and a court decision, contact Rosreestr to make changes to the records of the transfer of the right to the purchased share.

Download a sample claim for forced purchase of a share in an apartment

Difficulties of the procedure

At each stage of compulsory redemption, there are difficulties associated with the knowledge and use of legal norms.

In preparation for filing a claim, they collect an impressive package of documentation:

• personal documents of the plaintiff and documents confirming the title to the property;
• certificate of persons registered at the address of the location of the disputed object;
• technical documentation with the characteristics of the residential premises;
• expert opinion with real estate assessment;
• a payment document confirming payment of the duty (correlated with the price of the claim and the provisions of clause 1, clause 1, article 333.19 of the Tax Code of the Russian Federation);
• the plaintiff’s pre-trial proposal and the response received (if any);
• additional documents that will help establish the applicability of the provisions of Art. 252 of the Civil Code of the Russian Federation.

When drawing up a claim, the general structure of the document is followed, with a description of the situation, formulation of requirements and justification with references to laws.

Legal support

In the process of preparing for trial, 2 main difficulties arise:

1. Determine the completeness of the collected documentary evidence (acts of the defendant’s absence at the share address, accumulated unpaid receipts, certificates and evidence of violation of the rights of the remaining owners).
2. Prepare a statement of claim in accordance with the rules of the Civil Procedure Code and references to legislative norms applicable taking into account the circumstances described in the claim.

It is impossible to prepare a claim on your own without the appropriate experience and legal knowledge. It will be necessary to involve experienced lawyers specializing in property disputes. Competent wording and compelling justification increase the chances of satisfying the plaintiff’s claims.

The compulsory buyout process requires readiness for a long period of preparation, holding meetings and organizing the execution of a court order.

In practice, the buyout of a share by court decision occurs within 2-5 months, depending on the preparation of the parties and their activity at meetings.

Given the need to participate in meetings, collect and prepare documents for the court, it is extremely difficult to do without the help of a lawyer.

The court's position on issues of share repurchase

The owner of the share does not always agree with the determination of the amount of compensation, claiming more. The Civil Code allows the court to order the payment of a sum of money regardless of the opinion of the owner of the share. To implement such a decision, it is necessary that the size of the share be recognized:

• insignificant;
• inseparable;
• not having any special interest on the part of the owner.

In accordance with paragraph 5 of Art. 252 of the Civil Code of the Russian Federation, after receiving compensation, the owner transfers the share to the remaining participants in the property and loses the authority to dispose and use the property.

Important! Since the legislation does not establish the size of a part of the property, which would allow it to be considered insignificant, the court proceeds from the total area of ​​​​the apartment and the size of the share. To authorize the forced purchase of a share in a residential premises, the court must make sure that the size of the defendant’s living space does not allow him to live peacefully on his territory without disturbing other residents.

Example. 1/10 in an apartment with an area of ​​200 square meters can be considered sufficient for organizing families living together without infringing on the rights of the owners. If you own 1/10 in an apartment of 30 square meters, the owner of 1 share will objectively not be able to use it without creating inconvenience to other residents.

In addition to the size of the share, the court will take into account the impossibility of separating a part by fencing it off from the rest of the area, installing communications there and organizing a separate entrance. If, through changes, it is possible to create separate housing from the common property, the right of compulsory purchase will be denied.

When making a decision, it will be important to determine the significance of the property for the owner of the share. If there is evidence that there is no significant property interest on the part of the owner, the court will satisfy the demands for forced payment of compensation.

Signs of lack of interest will be:

• identification of rights to another property or a significant share in other property;
• registration at a different address and/or residence outside the boundaries of the share in question;
• evasion of obligations to service and maintain a property in which there is a share (expressed in refusal to pay housing and communal services receipts, evasion of material contribution to maintaining equipment and communications in proper condition).

If all three criteria are met, the court is inclined to side with the plaintiff, setting the amount of payment. If at least one of the criteria is not met, grounds for challenge arise.

The clarifications of the Constitutional Court of the Russian Federation (Determination No. 1359-О-О of October 13, 2009) speak of the need for the court to establish the actual interest of the owner in the use of the area, the corresponding share in common law, and the proportionality of the interest to the inconvenience caused to others.

Judicial practice and the position of the Supreme Court (definition No. 5-B11-134 of April 3, 2012) shows that even 1/3 of a three-room apartment can be considered insignificant if the housing was not used by the owner for living and utility bills were not paid. Based on bad faith, lack of signs of interest, or other circumstances, the court has the right to allow the plaintiff a forced redemption.

In other circumstances, when the share provides for the allocation of an isolated premises and the defendant regularly paid for utilities, the court will refuse to satisfy the requirements, giving the parties the right to independently resolve the issue of redemption.

Free consultation. If you have any questions, please do not hesitate to ask them to a lawyer in the online chat on the right, in the form below, or by calling the hotline: 8-800-350-84-21

The Supreme Court allowed the forced purchase of a share in real estate

In every sense, the Supreme Court made a unique decision when considering a dispute between several owners of one apartment. Each of them had shares in common real estate.

Having checked all the arguments and previous court decisions, the Supreme Court ruled that the rights of the one who has a larger “piece” in the common property can be protected by forced payment of monetary compensation to the remaining owners.

In this case, “small” owners lose the right to their share.

Recently, the problem of multiple shares in one property has worsened to the point of impossibility. But it reached particular tension in large cities.

Citizens literally buy one or two meters in an apartment and, at best, receive the coveted registration; at worst, those with a larger share move in and survive.

Hundreds of very specific real estate agencies now specialize in the sale of shares in apartments, the number of which is growing like mushrooms after rain.

Until recently, no one knew what to do about this situation. Law enforcement agencies, at best, did not interfere, nodding to the Constitution, which protects the interests of the owner of real estate, even one square meter.

The courts also made decisions that only made the situation worse. Around small shares in common real estate, crime, the interests of realtors and share owners are intertwined into a tight and dangerous knot.

In our case, the “apartment-share” situation developed as follows. A Muscovite woman filed a lawsuit against her ex-husband. At one time, she bought a three-room apartment and registered her husband in it. When the marriage broke up, the district court recognized the woman as having 13/14 shares in the three ruble ruble. The court determined 1/14 for the ex-husband, which when converted to square meters corresponds to two and a half square meters.

After the trial, the ex-husband did not appear in the apartment again, as he lived at a different address. But a year passed and amazing progress began with a share of two square meters. First, the man entered into a lifelong maintenance agreement with his son from another marriage.

The young man became the owner of his father’s share, which he did not fail to take advantage of, quickly registering in the apartment where his ex-wife and two children lived. Next, the new owner registered his daughter for two meters.

Later, the father breaks the lifelong maintenance agreement with his son and signs the same agreement with his daughter-in-law. Now she becomes the owner of a 1/14 share in a three-room apartment.

True, none of the newly registered owners ever moved into it.

But the exhausted ex-wife went to court and asked to terminate the ownership rights of the new residents for two meters, to pay them compensation for their share and to discharge everyone, including the minor child, whom the son of the ex-husband made the owner.

The offended new owners wrote a counterclaim so that they would not be prevented from moving into the disputed apartment and living. And they also asked to be given one room in the apartment.

The case was considered by the Tushinsky District Court. He decided to agree with the woman’s claim against her husband’s son and recognized his right to use had ceased and decided to discharge him. The court also upheld the ex-husband's counterclaim to move in two meters away. The court refused all other requests from both sides. The city court left this decision unchanged.

The Supreme Court stated that both the district and city courts “substantially violated the norms of substantive law.”

The Main Court decided to pay forced compensation to the owners of the small share. And terminate their ownership

This is how the Supreme Court judges reasoned. The controversial “treshka” consists of one isolated room of 11.4 square meters and two walk-through rooms of 8 and 16 meters. 1/14 of the share accounts for exactly 2.5 meters of living space and there is no such room in the apartment.

Refusing the woman’s request to terminate the property rights of all those newly registered and to pay them compensation, the district court cited Article 252 of the Civil Code, which states that compensation for a small share cannot be forced.

But the owner did not ask to give him a share. The court left the child because his parents decide where he should live, and they became the owners of “their” two meters. The court left the ex-husband, since he was moved in with the owner - his wife during the marriage, and after the divorce, according to the Housing Code (Art.

31) “has not lost the right to use the apartment at the place of registration.”

But the Supreme Court looked at the same situation differently. According to the Civil Code, 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 can receive the share in cash. With his consent.

But the court has the right, if the share is insignificant and cannot be allocated, and without the consent of the owner, replace it with money. The same article 252 speaks about this, but its other paragraph is the 4th. However, without the consent of citizens, such a decision on compensation is made only by the court.

The Supreme Court specifically emphasized that in allowing this, the legislator proceeded from the exclusivity of such situations. And such decisions cannot always be made, but only in specific circumstances.

Here are the Supreme Court's arguments. It is impossible to allocate a room to the new owners based on the size of their share. It is also impossible to allocate to the new owners “a part of the common property commensurate with their share,” as stated in Article 247 of the Civil Code.

The ex-husband's daughter-in-law and her child never moved into the disputed apartment and for the owner of the majority share they are strangers. The daughter-in-law, concluding a lifelong maintenance agreement with her father-in-law, knew about the situation around the apartment. The ex-husband did not use this apartment after the divorce.

The daughter-in-law did not ask to enter the apartment before her ex-wife filed a claim and did not dispute the situation anywhere.

It is impossible to use a share of 2 square meters, just as it is impossible to allocate it in kind. According to Article 288 of the Civil Code, residential premises are intended for living in.

But the situation is unique in that in such a dispute the three-ruble ruble will cease to be housing. Neither the new residents will be able to live on their two meters, nor the old ones will be able to live a normal life if strangers move in with them.

Therefore, the Supreme Court assessed the tiny share of the money and decided that it was worth 400,000 rubles, which it proposed to pay to the plaintiff.

Regarding the child of the new owners, the court said that the place of residence of minors is the home of their parents, and they have never lived in the disputed “three rubles” (Article 20 of the Civil Code). And accordingly, they did not acquire the right to use the apartment.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 3, 2012 No. 5-B11-134.

By the way

Last year, a lot of noise was generated by the information that in Russia they could establish a minimum share of ownership in apartments. Today such a figure does not exist.

In the spring of 2011, reports appeared in the media that the Chairman of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation, Pavel Krasheninnikov, was proposing to legally determine the size of the minimum share of ownership in apartments.

The issue of the need to regulate the size of the share in an apartment was discussed during the adoption of the new Housing Code, which came into force in 2004, but these changes were never adopted

The bill had many opponents who said that the state was trying to manage private property, and this should not be the case. But this necessary bill has not yet become law.