Preemptive right to purchase a share in an apartment: judicial practice

• Content:
• How to notify about the sale of a share in an apartment What is important to know If the pre-emptive right to purchase a share is violated Claim for the transfer of the rights and obligations of the buyer of a real estate share
• Civil legislation assigns to participants in shared ownership the pre-emptive right to purchase a share sold by one of the owners at the price for which it is sold (clause 1 of Article 250 of the Civil Code of the Russian Federation).
• This means that one of the co-owners of a real estate property, for example an apartment, when deciding to sell his share of real estate, is first obliged to offer its redemption to all (or one) co-owners of the property , since in such a situation the remaining participants in shared ownership have a priority right to purchase the alienated property. shares of property.
• The exception is the sale of a share at public auction, as well as the sale of part of the land by the owner of a part of a building or structure located on the site, or premises in this building.

In St. Petersburg, the right of ownership to a separate room in a communal apartment is not formalized as the right to a separate residential premises, or a separate property. As a rule, this is a share in common shared ownership. Consequently, the fact of having a separate room does not relieve the owner from the obligation, first of all, to notify neighbors of his intention to sell his home.

Procedure for selling a share in an apartment

It is important to understand that we are talking specifically about the sale or exchange of property, and not about another alienation. If the owner decides, for example, to give his share of real estate to any person, including someone who is not a co-owner of this real estate, then he should not notify his neighbors about this.

But, if in fact this is not a donation, but still a purchase and sale of a share, disguised as a donation , then such a transaction can be challenged by neighbors in court as a sham. Read more about this in the sections challenging a sham transaction and how to challenge a sham transaction.

It must be taken into account that you can only sell your share at a price not lower than the one you offered to your co-owners , i.e. an offer to a third-party buyer must be on similar terms.

But it is possible to sell a share at a higher price than was offered to the co-owners; in this regard, the law does not establish restrictions.

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How to notify about the sale of a share in an apartment

Only if all co-owners of the common property refuse, or do not receive a response from them within the period established by law, the sale of a share in the apartment is possible to any other person.

Information about all owners of residential premises can be obtained from the archival certificate of registration of persons in the apartment (archival F-9).

So, if the relationship with everyone is good , then you can verbally or in writing notify each of them about the sale of your share, and about all the conditions of the sale. If none of them expresses a desire to buy out this share, then such refusals should be notarized , and feel free to sell the share to a third-party buyer.

If relations with neighbors are strained , or not so trusting, or even simply neutral, then according to the law it is necessary to send a written offer to each of them to buy out the share .

Neighbors have 30 days to make a decision regarding the purchase of the alienated share of the property. After the specified time, and in the absence of offers, the seller will have the right to sell his share to any third party (clause 2 of Article 250 of the Civil Code of the Russian Federation).

It is necessary that in the application for waiver of the pre-emptive right to purchase a share, the owner indicates the specific characteristics of this property: address, area (if it is a separate room), the size of the share as a percentage, the owner of the share.

If the co-owners do not react to the proposal in any way, then postal documents will serve as proof that the corresponding proposal was nevertheless sent to them : a shipping receipt, a list of attachments with a postmark, a notification of delivery of correspondence to the addressee, or a printout of the postal identifier. By saving these documents, you will protect yourself from possible challenges to the transaction in the future.

Also, the specified procedure for notifying co-owners can be entrusted to a notary by paying the fee prescribed by law. After carrying out the notification procedure in accordance with all the rules established by law, the notary will issue a certificate of transfer of the application, and it will be evidence of notification of all co-owners about the sale of the share.

Refusals of the owners of the pre-emptive right to purchase a share, a notarized certificate of transfer of the application will need to be attached to the application for registration of the transfer of ownership when selling their share to a third party (Article 24 of the Federal Law No. 22 of July 21, 1997 “On State Registration of Rights to Real Estate and transactions with him."

It is important to know 

• The right of first refusal is a material right, and therefore this right can be inherited.
• You cannot cede your pre-emptive right to purchase; all owners must provide a written waiver of their legal right.
• All of the above rules for notifying co-owners also apply to barter.

If the pre-emptive right to purchase a share in property is violated

1. Despite the fact that the law obliges, when alienating a share in common property, to first offer redemption to co-owners, in practice this right of neighbors is often violated.
2. This can be either the result of hostile relations between neighbors, or for no reason.
3. In the first case, the share is sold to a person who is not one of the holders of shares in the right of common shared ownership, while the seller does not make a written offer to buy out the share to the remaining owners, or sells the share to an outsider without waiting for the expiration of the 30-day period after receiving the proposals from neighbors .
4. Cases may be completely different, but the essence is the same - violation of the rights of participants in shared ownership, guaranteed by Article 250 of the Civil Code of the Russian Federation.
5. Article 250 of the Civil Code of the Russian Federation states that any participant in shared ownership, in the event of a sale of a share in violation of the preemptive right of purchase, has the right to apply to the court within 3 months to demand the transfer of the rights and obligations of the buyer to him.

In paragraph 14 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10/22 dated April 29, 2010, “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights,” it is explained , that the three-month period for the participants in shared ownership to apply to the court begins to run from the moment the person becomes aware of the violated right.

After all, neighbors can find out about the sale of a share after three months (for example, when receiving information from the Unified State Register, etc.), so the explanation of the higher judicial authorities is quite logical.

If this deadline is missed by the plaintiff, then the claim will be denied, however, if it is missed for good reasons (for example, long-term treatment in a hospital), then the court, at the request of the plaintiff, can restore this deadline.

Claim for transfer of rights and obligations of the buyer of a real estate share

• The statement of claim is drawn up according to the general rules provided for in Articles 131-132 of the Code of Civil Procedure of the Russian Federation, and is submitted to the district court at the place of residence of one of the defendants, within 3 months from the day when the sale of the share became known.
• The defendants in the case will be the seller and the buyer of the disputed share; a third party who does not make independent claims must indicate Rosreestr.
• When filing a claim, a state fee is paid, calculated in accordance with paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation, based on the price of the claim, which is equal to the value of the disputed share of the real estate.

Preemptive right to purchase a share and application of Art. 250 Civil Code of the Russian Federation. Refusal to satisfy the claim for the transfer of the rights and obligations of the buyer

In this publication I want to talk about one case involving a claim for the transfer of the rights and obligations of the buyer, based on the application of Art. 250 of the Civil Code of the Russian Federation , which provides for the possibility of a pre-emptive right to purchase a share by participants in shared ownership.

It would seem that what could be simpler than reading the article carefully.

250 of the Civil Code of the Russian Federation and apply its not so complex norms? But some citizens do not want to bother searching for and choosing lawyers or advocates so that they can be provided with decent protection.

In this case, I represented the interests of the defendant and was simply happy with how two representatives of the plaintiff conducted the case in such a way that the natural result was a refusal to satisfy the claims, upheld by the appellate court.

Citizen A. found an advertisement for the sale of a 2/3 share in the right of common shared ownership of a residential building. The shares were sold by two co-owners, each of whom owned 1/3. The third co-owner, Sh., was notified at the address where he allegedly lived with his ex-wife, since his exact location was not known.

Approximately 6 months after the conclusion of the purchase and sale agreement, A. receives a statement of claim from the court to transfer the rights and obligations of the buyer of the share to the plaintiff.

Plaintiff's position

The plaintiff in the statement of claim indicated that he was not notified of the other co-owners' intention to sell their shares in the right of common ownership, as a result of which his pre-emptive right to purchase a share , which he intended to exercise if he had been properly notified. The claim was brought about the transfer of the rights and obligations of the buyer under the purchase and sale agreement and invalidation of the entry in the Unified State Register of Real Estate.

The plaintiff indicated in the claim that in June he came to the house and saw A. there, who told him that he had bought a share of 2/3. In court, the plaintiff said that A. showed him the share purchase and sale agreement. The plaintiff also wrote in the statement of claim that in October he took an extract from Rosreestr about the rights to the house and learned about the violation of his rights.

The claim was filed only in December.

Before filing a statement of claim for the transfer of the rights and obligations of the buyer under the purchase and sale agreement, as it turned out, the plaintiff also filed a statement of claim to invalidate the share purchase and sale agreement.

This obvious error in choosing the method of protecting the right in case of violation of the pre-emptive right to purchase a share , quite common among some lawyers who have a vague understanding of civil law, led to the fact that the statement of claim corresponding to the proper method of protecting the right was filed so late. You don’t have to be a rocket scientist to read Part 3 of Art. 250 of the Civil Code of the Russian Federation and understand which claim is protected by law in this case.

Then the plaintiff was returned the statement of claim and he again filed a claim to invalidate the transaction, changing the subject of the claim, only after it was accepted by the court, when, as I believe, the court hinted that it would be necessary to change the claims.

Defendant's position

The first and obvious thing that caught the eye was that the plaintiff missed the deadline to go to court to protect the violated right. Indeed, Part 3 of Art.

In paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” the following explanations are given

Within the meaning of paragraph 3 of Art.

250 of the Civil Code of the Russian Federation, when selling a share in the right of common ownership in violation of the preemptive right of purchase of other participants in shared ownership, any participant in shared ownership has the right, within three months from the day when he became aware or should have become aware of the transaction, to demand a transfer in court the rights and obligations of the buyer.

Claims submitted after the specified deadline are not subject to satisfaction. At the same time, according to the citizen’s application in relation to the rules of Art. 205 of the Civil Code of the Russian Federation, this period can be restored by the court if the citizen missed it for valid reasons.

In our case, the claim itself stated that the plaintiff saw a citizen in the house in June who said that he had bought shares in the ownership of the house. Many, unfortunately, read the law only in fragments and do not see in it what they do not want to see, and, perhaps, cannot see.

Black and white in Art.

250 of the Civil Code of the Russian Federation states that a three-month period begins to run, which is essentially a shortened limitation period, that it starts from the moment when the plaintiff became aware or should have become aware of the transaction. In this case, it already followed from the claim that Sh. should have become aware of the violation of rights after he saw a stranger who was in the house and told the plaintiff that he had bought a share in it.

After this, the plaintiff should have taken an extract from Rosreestr, of course, if he really wanted to exercise the pre-emptive right to purchase a share, but for unknown reasons, he took the extract only in October, i.e. after a period of three months.

Naturally, I immediately announced the application of the statute of limitations to the plaintiff’s claims, citing the fact that in this case it began to run from the moment the plaintiff should have learned of the violation of his right.

I would never plant a mine in a lawsuit. Let the defendant prove that the plaintiff should have known about the violation of his right before the plaintiff received an extract from the Unified State Register of Real Estate in October.

And it is still unknown whether the defendant could prove these circumstances or not. 

And the lawsuit was filed by those who believe that the statute of limitations begins to run from the moment the plaintiff learned of the violation of the right. That is why they did not even think about the consequences of indicating in the statement of claim a circumstance that obviously puts the plaintiff under the claim of missing the statute of limitations.

https://www.youtube.com/watch?v=Zw8JvuM4A8I

It would seem that it was necessary to at least try to rectify the situation in court and try to restore the statute of limitations, since the plaintiff claimed that he was illiterate. But no, the plaintiff’s representatives continued to insist that the statute of limitations had not expired.

Again, thanks to them for this.

Our next argument was that the co-owners did not have accurate information about where the plaintiff lived, and the notice was sent to his last known address. We argued that a bona fide co-owner, in order to ensure that his rights are not violated, must, at a minimum, inform other co-owners of where notices should be sent to him.  

Our other objection was that at the time the plaintiff learned that a buyer was living in the house, he had no intention of exercising the right of preemption. The plaintiff could not provide any evidence that he had the means to exercise the pre-emptive right to purchase the share.  

The most remarkable gift of the plaintiff's representatives to the defendants was that they showed that at the time of the dispute there was an amount in the plaintiff's bank account to pay the buyer, but this amount was not deposited into the account of the judicial department.

Challenging the purchase and sale agreement for a share of an apartment - Pravoved.RU

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I am the owner of 1/2 share of the apartment. New co-owners arrived, to whom my ex-wife sold her share. I was shown the documents of purchase and sale and a notarial document stating that the notary had sent a telegram about the sale of the share.

There is an entry not received by the addressee. It is clear that my rights under Article 250 of the Civil Code have been violated and can be appealed in court.

At the same time, I would like to understand whether I can only seek the transfer of the buyer’s rights according to the conditions proposed by my wife, or do I have the opportunity to invalidate the purchase and sale transaction?

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Answers from lawyers (10)

• 7.7 rating
• 7761 reviews
• expert

Hello, Valery!

At the same time, I would like to understand whether I can only seek the transfer of the buyer’s rights according to the conditions proposed by the used wife, or do I have the opportunity to recognize the purchase and sale transaction as invalid? Valery According to Part 3 of Art.

250 of the Civil Code of the Russian Federation When selling a share in violation of the preemptive right of purchase, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him .

That is, you have the right to demand the transfer of rights and obligations under the purchase and sale agreement to you. You cannot invalidate the transaction.

14.

Within the meaning of paragraph 3 of Article 250 of the Civil Code of the Russian Federation, when selling a share in a common property right in violation of the preemptive right of purchase of other participants in shared ownership, any participant in shared ownership has the right, within three months from the day when he became aware or should have become aware of the transaction, demand in court the transfer of the rights and obligations of the buyer to him.

In the event of a violation of the right of first refusal of a co-owner of real estate, a judicial act that satisfied the claim for the transfer of the rights and obligations of the buyer is the basis for making appropriate entries in the Unified State Register.

Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N 10/22.

Moscow “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”

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• expert

Hello, Valery. According to Art.

250 of the Civil Code of the Russian Federation, the seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.

If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.

It will not be possible to recognize the transaction as invalid; you must be prepared for the fact that you will have to pay the amount for which the share was purchased, in which case you will obtain ownership of the entire apartment.

At the same time, I would like to understand whether I can only seek the transfer of the buyer’s rights according to the conditions proposed by my wife, or do I have the opportunity to invalidate the purchase and sale transaction? Valery

Valery, hello. Based on the situation you described, I see no grounds for declaring the transaction invalid, unless there were defects in its form and the procedure for concluding the purchase and sale agreement.

Hello, Valery. I see no reason to invalidate the transaction, because The law provides for a special method of protecting a violated right - transferring the rights and obligations under the purchase and sale agreement to oneself in the event of a violation of the preemptive right to purchase.

This is the only basis on which you can go to court.

It should be borne in mind that when going to court, you will have to transfer to the court’s deposit the cost of the share in the real estate right at the time of filing the claim in accordance with the agreement.

You can only seek a transfer of the buyer's rights. Failure to comply with the right of first refusal in the form of failure to send a corresponding offer to another owner (even if this violation is established) is not grounds for declaring the transaction invalid.

Moreover, if you go to court to transfer the rights and obligations of the buyer (if you file such a claim), you may be required to provide evidence of the amount for which the share was sold.

Hello, Valery!

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” 14. Within the meaning of paragraph 3 of Article 250 of the Civil Code of the Russian Federation when selling a share in the right of common ownership in violation of the preemptive right of purchase of other participants in shared ownership, any participant in shared ownership has the right, within three months from the day when he became aware or should have become aware of the transaction, to demand in court the transfer of rights to him and obligations of the buyer. Claims submitted after missing the specified period are not subject to satisfaction. At the same time, at the request of a citizen in relation to the rules of Article 205 of the Civil Code of the Russian Federation, this period can be restored by the court if the citizen missed it for good reasons. In the event of a violation of the right of first refusal of a co-owner of real estate, a judicial act that satisfied the claim for the transfer of the rights and obligations of the buyer , is the basis for making appropriate entries in the Unified State Register.

Thus, you can only seek the transfer of the buyer’s rights according to the conditions proposed by the used wife, but you do not have the opportunity to invalidate the purchase and sale transaction.

Hello, Valery!

According to Art. 250 of the Civil Code The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.

If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.

Your pre-emptive right to purchase a share has been violated. Accordingly, you have the right to transfer the rights of the buyer to yourself within three months. You can go to court with this requirement. In accordance with Part 1 of Article 200 of the Civil Code, the limitation period begins from the day when the person learned or should have learned about the violation of his right.

In your application, request:

1. Recognize your preemptive right to purchase a share in the right of common shared ownership of the apartment.

2. Invalidate the entry on the registration of ownership rights in the right of common shared ownership in the apartment, entered into the Unified State Register.

The resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” states that in In the event of a violation of the right of first refusal of a co-owner of real estate, a judicial act that satisfied the claim for the transfer of the rights and obligations of the buyer is the basis for making appropriate entries in the Unified State Register.

There is an entry not received by the addressee. Valery

At the same time, I would like to understand whether I can only seek the transfer of the buyer’s rights according to the conditions proposed by my wife, or do I have the opportunity to invalidate the purchase and sale transaction? Valery

You can’t invalidate it, there’s no reason

CIVIL CODE

Article 177. Invalidity of a transaction made by a citizen incapable of understanding the meaning of his actions or managing them1. A transaction made by a citizen, although legally capable, was at the time of its completion in such a state where he was not able to understand the meaning of his actions or manage them, may be declared invalid by the court at the claim of this citizen or other persons whose rights are protected by law interests are violated as a result of its commission. 2. A transaction made by a citizen who was subsequently declared incompetent may be declared invalid by the court at the request of his guardian if it is proven that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them.

• Hello.
• I will support Alexander Bezgodov - they correctly paid attention to the moment of notification.
• The court, when considering such cases, dwells in detail on this circumstance, finding out the reason why the notice was not received, as well as whether the co-owner is at fault for not receiving it.
• For example, look at the appellate ruling in a similar case. The court of first instance refused to transfer the rights to the second owner, indicating that the notice had been sent and that was enough; the higher court did not agree with this conclusion and considered it necessary to investigate the reasons and guilt:

Is it possible to protect the pre-emptive right in court?

Dear colleagues, I would like to present for discussion the following problem of protecting the pre-emptive right that has arisen in law enforcement practice.

Current legislation in some cases establishes restrictions on the alienation of property. One of these restrictions on the owner’s disposal of property at his own discretion is the need to comply with the pre-emptive right of a person expressly named in the law to acquire such property.  

• Such cases include:
• — sale of a share in the right of common ownership to an outsider (Article 250 of the Civil Code of the Russian Federation),
• — sale of a share in the authorized capital of the company (Article 21 of the LLC Law) to a person who is not a member of the company,
• — sale of shares in a closed joint-stock company, a non-public joint-stock company (formerly in a closed joint-stock company) (Article 7 of the Law on Joint-Stock Companies) to a person who is not a shareholder of the company,

— sale of a plot of agricultural land to a third party (Article 8 of the Law on the Turnover of Agricultural Land). 

In relation to Art. 250 of the Civil Code of the Russian Federation, the person who has the preemptive right to purchase a share in common shared ownership is another participant in shared ownership.

In relation to Art. 21 of the LLC Law, the person with the preemptive right to purchase a share in the authorized capital is another participant in the LLC.

In relation to Art. 7 of the Law on JSC, the person with the preemptive right to purchase shares is another shareholder of the non-public JSC (formerly a shareholder of the CJSC).

In relation to Art. 8 of the Law on the Turnover of Agricultural Land, the person with the pre-emptive right to purchase a plot of agricultural land is a subject of the Russian Federation or a municipal entity.

In all the above cases, the owner, in order to sell the property to a third party, must offer the person with the preemptive right to purchase this property.

To do this, the owner must notify the person holding the preemptive right of his intention to alienate his property, indicating the essential conditions of the sale.

In relation to the alienation of a share in the authorized capital, the notification of a participant about the intention to sell it in paragraph 5 of Article 21 of the LLC Law is called an offer to sell the share (Initially, Article 21 of the LLC Law did not indicate that a notice of intention is an offer.

Within the established time frame, the person holding the preemptive right may agree to the owner’s notice and declare his intention to purchase the property from the owner. In this case, it is possible that a conflict situation may arise, the essence of which boils down to the following.  

What happens if the owner, who sent a notice of intention to sell the property he owns, refuses or evades completing the procedure for alienation of property (does not sign an agreement, does not take other necessary actions to transfer ownership of the property, etc.)? Can a person with a pre-emptive right force the owner, who has sent a notice of intention to sell the property, to enter into a purchase and sale agreement and fulfill the obligation to transfer the property?

1. Judicial practice in these matters is not uniform. 
2. This is largely due to the fact that the courts evaluate the notice of intention to sell property differently from the point of view of the possibility of recognizing it as an offer, and the consent of the person with the preemptive right to purchase the property as an acceptance, and also differently consider the possibility of forcing the owner to sign sale and purchase agreement, forced alienation of his property. 
3. Below are relevant examples of case law. 
4. 1. Judicial practice on the protection of the pre-emptive right to purchase during the alienation of a share in common property

Statement of claim for recognition of the pre-emptive right to purchase a share in the right of common shared ownership (sample)

On this page you can download a sample statement of claim for recognition of the pre-emptive right to purchase a share in the right of common shared ownership of an apartment and the transfer of the buyer's rights drawn up by our lawyers, taking into account the current legislation and established judicial practice. Disputes very often arise between shared owners of residential premises (apartment, house) related to the violation of the rights of one of the owners.

In the case when one of the owners decides to sell his share, in accordance with Art. 250 of the Civil Code of the Russian Federation, he is obliged to grant the right of first refusal to another owner to buy this share.

IMPORTANT! We would like to especially note that this rule applies to cases where a share in ownership is sold to an outsider. Those. if the share is sold to one of the participants in shared ownership, compliance with this procedure is not required!

Our contact phone number: 8 (495) 510-70-16.

• In ________________________ (name of court and address) Plaintiff: ________________________
• (full name and address)
• (full name and address)
• (full name and address)
• State duty: ______ rubles.
• STATEMENT OF CLAIM for recognition of the pre-emptive right to purchase a share in the right of common shared ownership of an apartment and transfer of the rights of the buyer
• I ASK THE COURT:

Defendant: _________________________________ Third party: ________________________ Price of the claim: ______ rubles; I, ________ (specify full name) am the owner of ___ shares in the ownership of a residential premises (apartment). The apartment is located at: _______ (specify address). A copy of the certificate of ownership, as well as an extract from the house register are attached. The other co-owner is the defendant, who owns ___ interest in the property. The defendant, in violation of the procedure provided for by the current civil legislation (Article 250 of the Civil Code of the Russian Federation), sold his share to a third party without notifying me of the upcoming sale of the share. In accordance with paragraph 2 of Art. 558 of the Civil Code of the Russian Federation An agreement for the sale of part of an apartment is subject to state registration and is considered concluded from the moment of state registration. According to the certificate of state registration of rights dated _______, an entry was made into the unified state register of rights to real estate and transactions with it, according to which ______ became the owner of ___ share of the apartment located at the address: ________. The transfer of rights was carried out on the basis of a purchase and sale agreement for a share of the apartment dated ________. In accordance with Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. According to Part 1 of Art. 250 of the Civil Code of the Russian Federation, when selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have a pre-emptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions. Part 2 of the same article provides for the seller’s obligation to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he is selling it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the ownership of real estate within a month, the seller has the right to sell his share to any other person. In accordance with paragraph 3 of Art. 250 of the Civil Code of the Russian Federation, when selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him. These provisions are reflected in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”, within the meaning of which, when selling a share in the right of common ownership in violation of the pre-emptive right of purchase of other participants in shared ownership, any participant in shared ownership has the right, within three months from the day when he became aware or should have become aware of the transaction, to demand in court the transfer of the rights and obligations of the buyer to him . Also, according to Art. 165.1. The Civil Code of the Russian Federation (Legally Significant Messages) stipulates that statements, notifications, notifications, demands or other legally significant messages, with which the law or transaction associates civil consequences for another person, entail such consequences for that person from the moment of delivery of the corresponding message him or his representative. A message is also considered delivered in cases where it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it. According to Part 2 of the article, the rules of paragraph 1 of this article apply unless otherwise provided by law or the terms of the transaction or follows from custom or practice established in the relationship between the parties. In accordance with paragraphs. “c” clause 1.2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 1980 No. 4 “On some issues of the practice of consideration by courts of disputes arising between participants in common ownership of a residential building”, in case of violation of the pre-emptive right to purchase, the three-month period established by Art. 250 of the Civil Code of the Russian Federation, during which another participant in shared ownership has the right to demand in court the transfer of the rights and obligations of the buyer to him, is calculated from the time when he learned or should have learned about the violation of his right (Article 200 of the Civil Code of the Russian Federation). Also, the unconditional basis for the legality of the plaintiff’s claims is the absence of violations of the rights of the defendants, who remain in their interests, whereas in the event of refusal to satisfy the claims, the plaintiff’s rights to acquire ownership in full of the rights to a share in the ownership of the apartment will be grossly violated, where she is already the owner and, as a matter of priority, has the right to lay claim to the disputed property, which will allow her to exercise her rights to the apartment in full in the future. I consider my demands to be based on the law and subject to satisfaction. Based on the above, guided by Art. Art. 12 Civil Code of the Russian Federation, art. art. 22, 131-132 Code of Civil Procedure of the Russian Federation,

1. Transfer to the plaintiff the rights and obligations of the buyer of the share in the right of common shared ownership of ____ share in the apartment located at the address: ______ under the purchase and sale agreement dated ________, registered in the Unified State Register No. ____________;

Application:

1. A copy of the statement of claim for the parties to the case and the court; 2. Receipt of payment of state duty; 3. A copy of the contested purchase and sale agreement (if any). 4. A copy of the certificate of ownership; 5. A copy of an extract from the house register; Date of application “____”____________ 20____

Plaintiff's signature ____________

Some issues regarding the implementation of the pre-emptive right to purchase a share in the right of common shared ownership of property

As stated in paragraph 1 of Art. 250 of the Civil Code of the Russian Federation, when selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have a preemptive right to purchase the sold share at the price for which it is sold, and on other equal conditions, except in the case of sale at public auction.

Clause 2 Art. 250 of the Civil Code of the Russian Federation indicates the mechanism for implementing this preemptive right.

In accordance with this clause, the seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.

If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.

Finally, paragraph 3 of Art. 250 of the Civil Code of the Russian Federation establishes a specific method of protecting the violated right of that participant in shared ownership in respect of which the above mechanism, as he believes, has not been implemented for one reason or another. In this case, this participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.

At first glance, everything seems clear.

However, in the practical implementation of this method of protecting a violated right, a number of questions arise that require clarification, since they are not regulated by law.

In accordance with paragraph. 5 clause 1.2 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 10, 1980

No. 4 “On some issues of the practice of consideration by courts of disputes arising between participants in common ownership of a residential building” when filing a claim for recognition of the preemptive right to purchase a share in the right of common shared ownership of an apartment, the plaintiff is obliged to contribute, by analogy with Part 1 of Art.

96 of the Code of Civil Procedure of the Russian Federation to the bank account of the administration (department) of the Judicial Department in the relevant constituent entity of the Russian Federation the amount paid by the buyer for the share, fees and duties, as well as other amounts payable to the buyer in compensation for the necessary expenses incurred when purchasing the share.

The law says nothing about this obligation of the plaintiff.

The explanations that appeared several years ago should be considered generally correct, although with some reservations.

The need to deposit funds into the bank account of the department (department) of the Judicial Department in the relevant constituent entity of the Russian Federation is explained by the fact that the plaintiff is required to confirm a real intention to exercise his right of pre-emption to purchase a share in the right of common ownership of the property.

Otherwise, as the Supreme Court of the Russian Federation apparently believes, there will be unfair procedural behavior of the plaintiff, which may lead to difficulties for a bona fide purchaser who acquired the disputed share in the absence of any violations on his part, due to which he must receive the money paid by him money to the seller if the rights and obligations of the buyer are transferred to the plaintiff.

• And here, in the opinion of the author of the article, lies a significant lack of explanations from the highest court.
• It is said above that in the event of a violation of the right of pre-emption of a share in the right of common shared ownership, the legislator has provided for a specific method of protecting the right, from which it follows that the transaction by which a share in the right of common ownership is alienated is not recognized as void or invalid due to its contestability , however As a result of the transfer of rights and obligations, the buyer, as a party to the transaction, is actually deprived of his ownership of the property.
• However, not only is the mechanism of such deprivation not prescribed anywhere in the legislation, the Supreme Court of the Russian Federation, with its explanations, actually placed the burden of compensation for losses incurred by the buyer due to the fault of the seller of the share on the plaintiff, whose right was violated by the seller .
• Let me explain the idea expressed.

If the plaintiff’s right to acquire a share in the ownership of property alienated to an outsider is violated, then, in turn, the buyer’s rights are not violated in any way by the plaintiff himself.

In this regard, the plaintiff’s obligation to compensate for the expenses incurred by the buyer of the share is contrary to the legal principle, according to which losses ( and those expenses incurred by the buyer, in the event of transfer of his rights and obligations to the plaintiff, are losses ) are compensated by the tortfeasor .

On the contrary, in accordance with the principle of Art. 1064 of the Civil Code of the Russian Federation will be the assignment of losses by the buyer to the seller - in relation to him, it is the seller who will be the causer of harm.

This approach is consistent in its legal nature with the norm contained in paragraph 1 of Art. 461 of the Civil Code of the Russian Federation and which states that when goods are withdrawn from the buyer by third parties on grounds that arose before the execution of the purchase and sale agreement, the seller is obliged to compensate the buyer for losses incurred unless he proves that the buyer knew or should have known about the existence of these grounds.

1. However, for an inexplicable reason, the legislator, in relation to the legal regulation of cases of violation of the right of pre-emption of a share in the right of common property, departed from the reasonable principles of civil legislation.
2. The injustice of the described situation can be easily illustrated by the example of the sale of a share to an outsider at a price higher than the one for which the seller of the share offered to buy it to a co-owner.
3. In this situation, the essence of the claim for recognition of the right of first refusal to purchase a share and the transfer of the rights and obligations of the buyer is to protect the right to buy the share exactly at the originally offered price, and not at a higher one.
4. Therefore, the question arises for what purpose should the plaintiff deposit with the management (department) of the Judicial Department the entire amount that the buyer paid to the seller and for which the plaintiff did not intend to acquire a share in the right of common ownership.
5. The answer to this question, in general, is not visible.

If someone has the remark that it is very unlikely that a share will be sold at a higher price after the seller offers the co-owner to buy it, then such situations do occur in judicial practice, and the author of the article encountered one of them. An analysis of the circumstances of a particular legal dispute led to the conclusions set out here.

Advantage of the right to purchase

Each of the participants in common shared ownership has the right to dispose of his share at his own discretion (sell, donate, bequeath, pledge, etc.). To exercise this right, the consent of the remaining participants in the common shared ownership is, as a rule, not required.

At the same time, when selling a share in common property, special rules provided for in Art. 250 of the Civil Code of the Russian Federation, according to which participants in common shared ownership have a pre-emptive right to purchase the share being sold.

This rule also applies when alienating a share under an exchange agreement, under which each party is recognized as the seller of the goods that it undertakes to transfer, and the buyer of the goods that it undertakes to accept in exchange (Article 567 of the Civil Code of the Russian Federation).

The pre-emptive right only applies when the share is sold to a third party. When selling a share to any of the participants in the common shared ownership, the remaining co-owners do not have a preemptive right to acquire the alienated share.

If several participants in common shared ownership wish to exercise the pre-emptive right to purchase, then the choice of which of them to sell their share belongs to the seller. In the event of a dispute between them, the court does not have the right to oblige the seller to transfer his share to a co-owner other than the one chosen by him.

The pre-emptive right to purchase does not apply in the event of the sale of a share of a residential building or apartment at a public auction held in the absence of the consent of all participants in shared ownership in cases and in compliance with the rules provided for in Part 2 of Art. 255 of the Civil Code of the Russian Federation and other laws.

It does not apply to inheritance or gratuitous alienation of a share in the right of common property, for example, by donation. If, under the guise of a donation, a sale of a share of real estate is actually carried out, then the pre-emptive right of purchase may be extended to such a transaction. According to clause 2 of Art. 170 of the Civil Code of the Russian Federation, a sham transaction, i.e.

a transaction that is made to cover up another transaction is void. To a transaction which the parties actually intended, taking into account the essence of the transaction, the rules relating to it are applied.

Therefore, if it is proven that in fact the share of the house or apartment was sold and not gifted to an outsider, the rules apply to the transaction, including those provided for in Art. 250 of the Civil Code of the Russian Federation relating to the sale of a share of real estate.

When selling a room in a communal apartment, the remaining owners of rooms in this communal apartment have a pre-emptive right to purchase the alienated room in the manner and on the conditions established by the Civil Code of the Russian Federation (Part 6 of Article 42 of the Housing Code of the Russian Federation).

When selling a share (a room in a communal apartment) to an outsider, the co-owners of a residential building (owners of the remaining rooms in this apartment) have a preemptive right to purchase the sold share (room) at the price at which it is sold, and on other equal conditions (compliance with payment terms, obligations to pay expenses associated with the execution of the transaction, etc.).

The seller of a share is obliged to notify the other participants in shared ownership of a residential building or apartment of his intention to sell his share to an outsider, indicating the price and conditions under which it is sold.

If a participant in shared ownership agrees to purchase a share of a house or apartment at a price set by the seller, but puts forward conditions that are unacceptable to the latter (for example, with installments or deferred payment), then the seller has the right to sell his share of the house on the terms set by him to an outsider.

At the same time, if the seller of a share of a house or apartment subsequently changes the price or other conditions of sale, he is obliged to notify the other participants in the common shared ownership about this in the prescribed manner. Otherwise, their pre-emptive right to purchase may be violated.

In practice, the issue of the possibility of the seller changing the terms of the sale of the share is ambiguously resolved if one of the participants in the common property within the established period accepted an offer to exercise the right of first refusal and purchase a share of the real estate on the terms specified by the seller.

An opinion is expressed, including on the pages of legal literature, that a sent notice of the sale of a share is an irrevocable offer and in case of its acceptance (acceptance), the contract is considered concluded, the alienated share passes to the remaining participants in the common shared ownership and is distributed among them in proportion to the existing they have shares. It is certainly impossible to agree with such an opinion, which has a certain impact on judicial practice, since the seller’s notification to the other participants in the common shared ownership and the offer sent in accordance with Art. 435 of the Civil Code of the Russian Federation, have a different legal nature. Considering the content of Art. 250 of the Civil Code of the Russian Federation, it should be recognized that this norm limits the owner’s right to freely dispose of his property. However, extending to the rules related to the exercise of the pre-emptive right of purchase the general provisions of the law, which impose an obligation on the seller to sell his property to the person who accepted the offer, would lead to an unjustified expansion of the restrictions on the rights of the owner introduced by a special norm of the law. From the analysis of paragraph 1 of Art. 9, paragraph 1, art. 421, art. 435 of the Civil Code of the Russian Federation in their interrelation it follows that a proposal (offer) is sent by a person voluntarily, at his own discretion and reflects his free will to consider himself to have entered into an agreement with the addressee who will accept the offer.

Notification of participants in common shared ownership of the sale of a share is sent not at the discretion of the owner, but by virtue of a mandatory requirement of the law and does not express his will to compulsorily conclude an agreement with the addressee. The legal significance of such a notice is determined by clause 2 of Art. 250 of the Civil Code of the Russian Federation and consists of only one thing: to notify other co-owners “of the intention to sell their share to an outsider,” which cannot be regarded as an offer to conclude an agreement.

The consent of the owner who has received the specified notice means only that he has the primary right to acquire the sold share within a specified period by concluding an appropriate agreement in front of the person to whom the seller, by his free will, intends to sell the share, but does not consider him to have entered into an agreement from the moment of expressing consent, as provided for in paragraph 1 of Art. 433, art. 435 of the Civil Code of the Russian Federation.

The consequences of violation are also different. If the rule on pre-emption is not observed, the contract does not lose legal force - only the buyer indicated in it can be replaced by another person; if the contract is recognized as concluded by accepting an offer, the subsequent contract may be declared invalid as concluded by a person who no longer has the right to dispose of the subject of the contract.