Disaggregated the share of the land from the total share of the property

For the vast majority of datums, gardeners and gardeners, the Supreme Court ' s explanation of the right division of land may prove very useful, in the most frequent situations where the home and land are divided between several owners.

• This happens in inheritance, divorce and other similar cases.
• Few people know that in such operations the size of future plots that will emerge after division is crucial.
• The fact is that the law allows a person to have his or her share of the land only if all post-separation plots correspond to the minimum permitted size for the purpose of using the land.

The Supreme Court dealt with non-payers in garden partnerships

So if the precinct was originally available for horticulture, then it must be divided so that each part can continue to do the horticulture.

Such explanations were given when the Judicial Panel on Civil Cases of the Supreme Court of the Russian Federation reviewed the outcome of the proceedings in one land dispute in Volgograd province, where a citizen came to the court and asked for a portion of the house and the land, which were owned by several owners in common share ownership.

In the court, the plaintiff explained that he owned two thirds of the house and land: according to BTI ' s passport, the total area of the house was 70.1 square metres and 506 square metres. One third was owned by a woman and, after her death, the heir.

If the precinct is for horticulture, it must be divided in such a way that horticulture is not interfered with.

This heir did not agree with the neighbor's request and brought a counter-claim to the court to divide the house and land according to the option he was proposing.

The local court sided with the plaintiff and divided the house and the land. The plaintiff received 337, 3 square metres and the defendant 167 square metres.

1. The appeal was accepted.
2. The local Volgograd court, when making this decision, proceeded along the simplest path — home and land — as it had historically been — without detracting from the parties' ownership of the house and the plot.
3. This decision was rejected by the Supreme Court and explained why.

The Land Code (art. 1) states that plots owned by citizens are created in a variety of ways; the plots are redistributed from existing properties, separated from existing ones, handed over or sold from State or municipal property.

According to the Land Code, the allocation of a portion of the land is the same as that of the land, and the one from whom the portion is cut will continue to be listed as a lot, but within the new boundaries.

Another important point is that the Land Code states that no matter how parts are changed, cut out or separated from an entire site, all of its shares must be in accordance with the original purpose and permitted use, and that the minimum and maximum dimensions are set by law at the sites, depending on their intended purpose and permitted use.

The Supreme Court spoke about the rights of tenants displaced from barracks

In 1996, the General Plenary of the Supreme Court and the Supreme Court of Arbitration (N6/8 of 1 July 1996) was held, and this plenary dealt with the Civil Code.

It contains article 252, which states that the court has the full right to refuse a claim against a participant who has asked for a share of the property in kind, a refusal being possible if the allocation of the share would result in "a disproportionate damage to the property in common ownership".

That is, if after a piece of land has been removed, the remaining area cannot be used for a direct purpose.

In this case, the term "damage" should be understood to mean a serious deterioration of the technical condition, the inability to use things for its purpose, the inconvenience of use, the loss of cultural or artistic value of things; in the latter case, it is no longer about the land but about collections of paintings, objects or libraries.

These explanations, the Supreme Court pointed out, are consistent with the State Real Estate Registry Act, under which the cadastre authority decides not to register a plot if the new site or the remaining old one does not conform to the minimum and maximum size prescribed by the law.

From all of this, the Civil Division of the Supreme Court concludes that the allocation of a share in kind to one of the owners of the land is only possible if the plot and the remaining plots after the division have an area not less than the minimum permitted and appropriate purpose.

The Land Code states that the maximum and minimum size limits are set by urban regulations, and the Civil Code states that the rules of land use and size are written by local authorities.

In our situation, there is a ruling by the Volzh City Duma of Volgograd province, which has a maximum area of 0.02 hectares and a maximum of 0.2 hectares, so in our dispute, the newly formed site that the court has allocated to the defendant, 168.7 square metres, does not meet the requirements of the law; the Supreme Court of the Russian Federation has ordered the land dispute to be reconsidered.

Selected share of land

The decision to allocate the share of the land is made when the parties to the joint property cannot agree on the sharing of the land (e.g. after the inheritance), but it is not the case that one of the owners or the group of owners buys the share.

Selected the proportion of land in kind: options

When each of the owners of one piece of land wishes to allocate their share of the land in kind, the situation may evolve as follows.

Land is allocated to land shares, i.e. the division of one large "kushk" of land into several new "small ones".

Newly formed objects thus acquire the status of separate land, with their cadastral numbers and legal documents.

In a situation where all other owners of the land share do not object to the separation of one of them, it will be necessary to cross the land and agree on new boundaries.

However, if there was a land dispute, then the issue would be settled only through a judicial process.

It should be noted that even in court, the issue of the allocation of the share of the land may not be resolved if it is not possible to divide the land between the owners according to their minimum shares, in which case alternative means of resolving the conflict must be sought (replacement of nature by means of money, i.e. a ransom of a small share, etc.).

Legal assistance for the allocation of the share of the land

A relatively rapid allocation of the share of the land is made if the issue is dealt with professionally from the outset by an expert in the field of land law relations.

A lawyer on the ground will help to solve a large range of problems when determining the proportion of land in kind.

He will always provide his client with a favourable solution to the situation with regard to the allocation of his share of the total land, and will help to establish all the necessary documents for registration in the State cadastre register.

An attempt will be made to resolve the conflict with the rest of the owners of the common land in a peaceful manner and, if this is not possible, to prepare a package of necessary legal documents to be submitted to the court, where he will accompany his client throughout the hearing; he will represent the interests in all public authorities as the client ' s trustee at all stages of the resolution of the matter.

- The share of the common land is not a simple legal procedure requiring thorough documentation and good knowledge of land law. The assistance of our land lawyer will allow it to be conducted properly with the result desired by the client.

Legal aid online

How to separate their share of land from the total share of property

It is important to remember that in the process of inter-divisional work, the size of the site may differ from the size of the share due to the nature of the terrain and the structure of the soil, which the cadastral engineer makes a special reference to in the opinion, according to para.

Dear readers, our articles talk about model ways of dealing with legal issues, but each case is unique.

If you want to know,How to solve your problem -- you can use the form of an online consultant on the right or you can call the phones on the website. It's quick and free!

Contents:

• Nuances decoupling in kind from general real estate
• How and why allocate a share of real estate in nature?
• How can we single out our share of property — land and homes?
• Select a share of the earth in kind
• Features of the realization of common share ownership of land
• Judicial division of land
• The SC allowed the sharing of equity property against the will of the owners.
• Separation of home and adjacent land
• Disaggregated the share of the land from the total ownership of the property in kind
• Land share

Look at the view on the topic: Share property part 3

Nuances decoupling in kind from general real estate

The division of immovable property upon inheritance, divorce or for other reasons has led to a deadlock: what does the Act say? Common property, according to the Russian Civil Code, is property belonging to several persons at the same time.

The owners are subjects of ownership of the property in question, i.e. each owner of the same property; this provision is set out in paragraph 1. This paragraph determines that the common property is divided into joint and shared property.

In both cases, each partner has the right to participate in the resolution of the fate of the common property, the joint property being the norm and the unbridled joint property being the exception to the rules.

The allocation of an in-kind share in a private house has repeatedly clarified the main rules of the law when allocating a share in common property.

If the allocation of in kind shares is accompanied by the necessary construction work related to the construction, repair or alteration, the authorization of the local administration for such work is required.

In this case, the law states that the costs of construction work must be allocated in proportion to each owner ' s share of the common property.

If such a decision does not satisfy the co-owners, the case may be tried; sometimes the court also takes into account the financial position of the owners of the joint property by allocating the construction costs in proportion to the property status of the owners.

If the joint owners of the property are minors or incapable citizens, the court must take this into account when considering a claim for a share in nature; the jurisdiction and interests of such persons are determined by the court through guardians.

The inability to divide property — the court's position if the division of property is not possible without damage, or if such action results in damage to property, deterioration of its technical condition or loss of value, the court has the right not to grant a claim for a share in nature in a private house.

If it is proved by the experts that the division of property is not possible, the court shall award monetary compensation to the debtor, after which the person loses his share in the common property.

After hearing the representatives of both parties, the court may make one of three decisions: the court therefore awards him compensation by force; if the first owner does not agree to compensation and there is no evidence that the claimant ' s share in the common property is insignificant, the right to property does not cease.

The Court invites the parties to decide how to separate their share of the land from the common property.

If consent has not been obtained, three options are considered by the law in which the share of the total share of the property of the dwelling may be allocated: the out-of-court allocation of the share of the property in the home in kind is made according to the agreement of the parties.

To begin with, the housing area claimed by the donor should be re-formed and prepared for preparation; if restructuring or remodelling is required, a permit should be obtained immediately to renovate a part of the dwelling; such documents are handled by the Municipal Education Administration ' s Department ' s substantive committee.

After that, it will be necessary to order a passport for a house in which existing legal changes and changes in the structure of the building will be made, and a third step will be to conclude an agreement on the allocation of a share of the house in kind.

Judicial practice shows that this part is the most difficult one, and it is necessary to evaluate the dwelling and the cost of the space allocated. Most often, the assessment of the percentage allocated is very subjective and requires the participation of a third party in the dispute.

If the owner claims a more expensive part of the house, he must pay the rest of the owners a sum of money.

The last stage of the allocation is the State registration of property rights.

After the registration authority, new certificates will be issued confirming the in-kind share and attaching it to one of the associates.

We'll answer all your questions and we'll be sure to help you! We've given you shares through the court if the co-owners have not reached an agreement on the terms of a separate share, then the court proceedings will help determine how one of them will become the individual owner of a portion of the property.

In this case, it is best to appeal to a lawyer who will file a lawsuit for the court, taking into account all the important features of the case.

To begin with, we do what we do with the voluntary allocation of the share of property — we order a return to the PIB. It also concludes that it is possible to separate a portion of the dwelling into a separate property. The next step is to file a claim for the in-kind share of all co-owners.

The application should include a description of the dwelling, an explanation of the share of the property, the use of the premises and compensation if it is necessary to calculate the proportionality of the share of the property.

The statement of claim is attached as follows: the plaintiff should take a direct part in the court hearing; it is possible to involve a third party, an independent judicial construction expert.

The court may itself order such an examination to determine the objectivity of the plaintiff ' s claims; if the court so decides, the allocation of shares of the common joint property is considered to have been completed; documents should be made available to Rosreest: Rosreestre will change his database and another address will appear in the address book of the municipality.

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How and why allocate a share of real estate in nature?

What needs to be done to allocate a share in nature? If the format of the equity property ceases to accommodate people, they often decide to allocate shares in nature, i.e. which part of the real estate belongs to each owner. When appropriate and when not, and other details of the procedure, the lawyers told RIA Real Estate. If in kind the share of the apartment is allocated, how to be with the public place, the toilet, etc.?

Freedom and independence from an associate will help to allocate shares for the home and land in kind.

The Conclusions of the Classification of Common Property Rights to Real Property Exploitation regulates many legal acts, and the main rules are set out in the chapter on land and the Land Code should also be applied.

The joint ownership of land The right of joint joint property is regulated. Under this provision, the parties to such a legal regime jointly own and use the estate, unless otherwise specified in the agreement.

In accordance with a certain procedure, the division of the common land between the participants in the joint ownership or the allocation of parts of one of them is carried out.

Select a share of the earth in kind

The current practice shows that there are two possible options for resolving the issue: it should be borne in mind that the voluntary procedure for resolving the disputed issue is that all the parties who are joint owners of the land agree on the procedure for the division of the land, and none of them object to the solution; moreover, all the co-defendants must have legal rights to their shares; recourse to the court will be necessary in such cases: how is the share to be given if all the co-defendants agree?

The division of real estate on inheritance, divorce, or other grounds has led to a deadlock.

How do I allocate my share of property — land and house? The house and land are shared by six relatives, including me. I became the owner of the land and the house in the year. I want to separate from the total share of property my 7 ducts in order to fence the area, build a house and a bath on it. Is it possible to single out my 7 ducts in this situation?

Judicial division of land

A share of the land in kind is sometimes required to enter into private ownership of a part of the land owned by several owners.

Before this procedure, everyone has only an abstract piece of land that is not officially registered anywhere, and the reasons why they may need to allocate a share of the land in kind may vary.

Most often, it is not possible to carry out financial transactions with property; it cannot be rented, sold or donated without the consent of all owners.

Freedom and independence from an associate will help to allocate shares for the home and land in kind.

Our organization's requisitions to make it clear how the house is divided, let's give a simple example. There's a house with a total area of square metres, located at Diamond, 8.

Separation of home and adjacent land

The Civil Code has established two types of common property, shared and shared, and joint property, without making shares, only arises in cases expressly provided for by law.

For example, the common property of the spouses on property acquired during marriage, or the property of peasant farmers.

If a common joint property is not defined by law and the owners are more than one, then there is common joint ownership, i.e. with a definition of shares.

The judicial division of the land plot is one of the land ownership regimes in which it is owned by several owners, with a share allocated to each of them.

Which may be considered as the basis for the joint ownership of the land by its future co-owner in one of the following cases; where the joint ownership of the land may be held by several owners without allocating a share to each of them.

Recognition of ownership of land in equity is made with a clear determination of the share of each of the owners of the property, whether real or perfect; only then may the land be exchanged or sold.

Land share

What is meant by this legal term and in what cases is this type of transaction carried out? Many owners of immovable property, whom they share with someone else, are interested in allocating a share in nature.

Therefore, the publication will highlight the main points of the allocation of a share in kind from the general real estate to which attention should be drawn.

It contains an article that elaborates on this concept and explains when such procedures are carried out.

VIDEO ON THEME: Common share ownership and share in kind

Selected land area

Selected land area- This is one of the ways of creating land as set out in article 11.2, paragraph 1, of the Russian Federation ' s Land Code (RK), which is implemented only in the case of a share or share of the land in the joint property.

One or more plots of land are formed from the field and the source of the land (from which the extract has been made) is retained within the modified boundaries.

The land that is the subject of the land is subject to the ownership rights of the participant in the equity property on which the attachment was made, in accordance with article 11, paragraph 2.

5 Other participants in joint ownership retain the right of joint ownership of the source (changed land) subject to a change in the size of the share (the share of each participant is proportionally increased).

There is a need to allocate land in kind in cases where the owners do not agree on how the land is to be used.

Therefore (if the owners have not reached an agreement on the division of the plot), the participant in the joint property has the right under article 252, paragraph 2, of the Civil Code to demand the allocation of his share of the common property.

In the event that the participants do not agree with the method and conditions for making a share of one of them, they are entitled to a claim for a share in kind in court (art. 252, para. 3, of the Civil Code of the Russian Federation). In certain cases, if the giving of a share in kind is not permitted by law or is not possible without disproportionate damage to the property in common ownership, the owner is entitled to payment of the value of the share by the other participants in the share property (art. 252, para. 4) of the Civil Code of the Russian Federation. With the receipt of compensation, the owner loses the right to share in the common property.

One of the most common reasons why the law does not allow for the allocation of the share of land is the non-conformity of the land produced with the minimum amount of land.

Variances from Section

In dealing with issues of common share ownership, especially when they relate to land, the difference between the concepts of division and division should be clearly understood:

• The allocation of a share of land in kind implies that the principal real property will remain in the same share of the common property, with the exception of the allocated area, which is transferred to the personal property of one of the participants and will not cease to be a participant;
• The division of the territory implies the total cessation of the existence of common equity property, which will result in a complete division of the territory between the participants and each owner.

The procedures for the processing of each of these two cases will be different, so they should not be confused; it is much more difficult to deal with the section because not all participants in the common share ownership wish to allocate a personal area.

This depends on the targeted use of the area; it is particularly difficult to obtain the support of participants for a division if the real property is used in livestock or crops for which it is not appropriate to use small areas of land.

Conditions

The main rules are as follows:

1. Maintaining the category of land (established for the reference land);
2. Compliance with minimum and maximum land size limits established by urban regulations or other regulations;
3. Compliance with urban regulations (for urban land);
4. The boundaries of land should not cross the boundaries of municipalities and (or) the boundaries of built-up areas;
5. It should be possible to maintain the authorized use of real estate on such land;
6. The building permit issued for the entire territory of the joint equity property shall be retained after the allocation of the share;
7. The rights of third parties should not be violated;
8. No damage may be caused to the other participants in relation to their property.
9. The formation of land should not lead to injection, creeping, broken borders, over-policing, inability to house real property and other obstacles to the rational use and protection of land, nor should they violate other requirements established by the Russian Criminal Code and other federal laws.

Procedure for the allocation of land

As in many questions, it's better to rely on specialists. Yes, it's more expensive, but it's usually justified.

It is necessary to collect the documents (cadastral receipt, certificate, etc. of the right-setting documents, written consent of the shareholders to the issue or decision of the court) and to apply to the company which is well-pleased.

1. The company's cadastral engineer must literally "for the pen" conduct you through the debris of the land-building activity and eventually issue a ready inter-office plan.
2. In the case of a non-owner ' s and a notary ' s power of attorney, only a cross-sectional plan and identity document should be provided to the IFC, or to the company ' s representative, and in the case of a non-owner ' s or notary ' s power of attorney.
3. All that remains is to register the right to an established section in the Justice, only a cadastral passport, a citizen ' s passport and an old certificate showing your share in the general section will be required.

Necessary documents

The following documents will be required by an expert for technical as well as construction expertise to carry out the actual judicial review:

1. A claim against the division, as well as the graphics attached to it;
2. All records from the court;
3. Appointment for examination;
4. A technical passport for the ownership of the BTI, which should contain information such as dimensions of the divided property, physical wear, communications, additional buildings and any installations on the site;
5. Documentation indicating the wishes of all parties involved in the division;
6. The consent of the owners.

Time frame and results of land allocation

The land area has been identified as part of the cross-section associated with field work, and therefore the time period is calculated on the basis of this.

If there are all the necessary documents and the consent of the contributors has been obtained, the preparation of the inter-country plan will take no more than a week, taking into account the visit to the area.

As mentioned above, once placed on the cadastre, it will take only a few days to establish an established site on the ground.

The results of the land plot were as follows:

1. A new site is created according to the share in the baseline (total) and the source remains in the inventory with the amended boundaries
2. The debtor ceases to have a share in the common property and takes possession of a separate ZU. The most important thing is not to forget once it has been placed on the register to register its rights in the Registry Chamber. Otherwise, after some time, the property will be removed from the register and everything will have to be done again.
3. The boundaries of the new section will be established on the ground

Cost of land allocation

• Prices depend on the need for field measurements:
• For physical persons:
• Preparation of an inter-country plan with an exit of 12000r, without departure of 10,000r.
• Establishment of the 2500r border on the ground.
• For legal persons:
• Preparation of an inter-agency plan with an exit from 14000p, no exit from 12000p.
• Establishment of borders on the ground from 4,000pm.
• We're working.No hidden paymentsthe price will be final and will include all the necessary work (geodesia, cross-section).

The Supreme Court allowed the change of ownership — news law.

Picture: Law. Ru/Oxana Ostrogorskaya How to allocate in kind the share of a small estate owned by several owners? The task becomes more complex if each of them offers its own option. The Regional Court, which was seized of such a dispute, simply rejected the parties. The Supreme Court defied itself because the task of civil proceedings was to resolve cases in a correct and timely manner and explained how to proceed.

The land area of 6 ducts and the house on it are in common ownership between Olga Saharkova*, Marina Volkovskaya* and Nikolai Kirev.* Kirev asked through the court for a share of his ownership. And although Kirev is owed just under two ducts of land, he asked for 2.65 stats – since the allocation was in line with the established procedure for the use of the site and the house. Sahrakov and Volkovsky objected: they wanted to keep two rays of the land on which the house is located in common share ownership.

The Kaluge District Court of the Kaluga Region granted the Kirev claim, and the Court rejected the defendants ' option, since the allocation of a share in kind should cease the share of the distinguished co-owner for the entire land and they offered to maintain it in part. At the same time, the Court decided to allocate 22 square metres to the common use of all three co-defendants.

• SECRET:Nikolai Kirev*
• ANSWERS:Olga Saharkova*, Marina Volkowski*
• DRIVER:On the allocation of shares in the ownership of the land
• DECISION:Appeal decision to set aside, refer the case to the court of appeal

The Kaluge Regional Court reversed the decision and adopted a new one, which had been denied, explaining that the plaintiff ' s proposed division did not take into account the extent of the parties ' ownership shares, which was contrary to the law.

The Supreme Court recalled that article 252 of the Civil Code allowed for the allocation of land, which exceeded the amount allocated, and that if the appeal was not accepted by the court of first instance, other options would have to be chosen.

The Kaluge Regional Court should bear in mind: the allocation of land and the creation of new land forming means that nothing should remain in the total share of property (No. 85-KG18-14). The case is still pending.

Opinion of the experts

In case law, there are sections of the land that deviate from each owner ' s share; in order to balance interests, the court usually appoints one of the parties to pay compensation (art. 252, para. 4, of the Civil Code); in addition, in order to determine the most appropriate option, the court may appoint a land survey.

It must be borne in mind that the law prohibits the indefinite drilling of land less than the minimum limits (review of the jurisprudence of the Supreme Court No. 4 of 2016).The minimum size depends on the purpose and authorized use of the land. 22 square metres of land may not be created as a share property.

That's the story.

If the parties to the dispute wish to resolve the situation, the court must help them. Only in exceptional cases does the legislature allow enforcement of the matter with a small percentage. "The definition of the Supreme Court is a good example of judicial resolution of the problem that has arisen.

The Supreme Court did not reject the claim, despite the formal grounds for doing so, but went on to apply the law in practice, and it was recommended that the parties should be invited to agree on the manner and conditions of the division of property, including compensation.

No such decisions have been made previously at the SC level," noted the head of Real Estate, Federal Group IV Group Bankruptcy IV, Commercial Real Estate/Construction
Yuri Marfin. "This definition of the SC should be viewed positively.

If the allocation of shares in kind is not prohibited by law and would not cause disproportionate damage to property in common ownership, there is no reason to refuse a claim, and the court was free to determine the most appropriate option for the division," considered the lawyer of real estate practice and the Duvernoa Ligall PPP to be Sergei Omelchenko.

"VC rightly noted that the procedure for issuing did not allow part of the plots to be left in the common share of the property of the individual and other associates," added the head of the Dopophis Federal Rating III Group Family Law/Consequence Law III Group Criminal Law and Process
Andrea Jeremin.

* – The name has been changed.

:: Office of the United Nations High Commissioner for Human Rights, 2008-2019; telephone: (495) 645 37 60 El No. FC 77-31590, issued by the Federal Service for the Supervision of Mass Communications, Communications and the Protection of Cultural Heritage.

18+

Now it's possible to change ownership shares.

The Supreme Court replied that the opposition of the partners to the division options was not an obstacle to the distribution, and that compensation could be awarded in the event of a disproportionate share of the property allocated, the amount of which could be determined by the court in the event of non-consensual agreement between the owners.

The case before the Supreme Court was as follows.

The land area of 615 square metres (6 ducts) has three owners: K. with 29/100 shares, C. with 1/4 shares, B. with 46/100 shares.

There is a residential home on this land, the isolated parts of which, by agreement, are owned by the same three owners: K. (a building of 173.1 square metres), C.

(site 2 25.5 square metres) and B. (site 3 87.6 square metres).

Asked for a share of the ownership of the land, in accordance with the established usage of the land, and taking into account the need to exploit the parts of the dwelling owned by the parties, and determined the plaintiff to have a land area of 265 square kilometres.

The total amount of land allocated to the respondents was 328 square metres. That is to say, the proportion of land that is larger than the arithmetic amount of its share of 29/100 (178, 35 square metres).

The respondents objected to the plaintiff ' s option of making a share of the ownership of the land and proposed their own option of retaining a portion of the 200 square metres of land on which the dwelling is located in the common share ownership of the parties.

The court of first instance, the Kaluge District Court of the Kaluga Region, granted K. ' s claim: the division of the land was made according to the applicant ' s proposed option.

The Court rejected the defendants ' option, since the allocation of a share in kind should cease the share of the distinguished co-owner for the entire land, and they suggested that it should be retained in part.

At the same time, the Court decided to assign 22 square metres to all three co-authors.

The Court of Appeal, Kaluge Regional Court, quashed the decision and issued a new decision denying the claim, and the Court of Appeal held that the plaintiff ' s proposed division of the land, in violation of the law, did not take into account the amount of the parties ' ownership of the plot.

Under article 252 of the Criminal Code, a participant in a joint property is entitled to claim its share of the common property (para. 2).

In the event that the parties fail to achieve an agreement on the manner and conditions of the division of common property or to make a share of one of them, the participant in the joint property is entitled to seek in court the allocation in kind of his or her share of common property.

If the allocation of a share in kind is not permitted by law or is not possible without disproportionate damage to property in common ownership, the allocated owner shall be entitled to pay the value of the share to him or her by the other participants in the equity property (para. 3).

The disproportionate nature of the property allocated to the participant under this article, its share in the ownership right, shall be corrected by the payment of a sum of money or other compensation (para. 4).

At the same time, the composition of the property transferred to the share allocated to the participant, as well as the amount of compensation paid in the event that the share is disproportionate, shall be determined by agreement of the parties and, in the absence of such agreement, by the court.

In rescission of the decision of the court of first instance, the court of appeal rejected the plaintiff ' s option for the division of the land, stating that the option did not correspond to the size of the parties ' ownership rights, namely, that the plaintiff was allocated a land of 265 square metres, which was significantly higher than the amount of the share due to him (179 square metres), but that the allocation of land which exceeded the amount allocated was not an obstacle to the satisfaction of the claim and was permitted under article 252 of the Civil and Land Code. If the court of second instance did not agree with the issue of the plaintiff ' s share of the option chosen by the court of first instance, the matter had to be discussed and other options that would be in line with the above provisions of the civil and land legislation.

The Court of Appeal, in rejecting the claim completely, did not resolve the dispute and thus failed to perform the tasks of the civil proceedings, noted the Supreme Court.

Decision of the Judicial Chamber on Civil Cases of the Supreme Court of the Russian Federation of 30 October 18, No. 85-GC18-14

Consultant, College of Lawyers, Ternovtsov and Partners
Dimitri Petrov

Features of the land area

The allocation of land is one of the means by which land is created, as defined in articles 11.2 and 11.5 of the Russian Land Code, and is a set of cadastral and land-building works carried out with a view to separating on the ground the share (or shares) of ownership of a single land.

As can be seen from the definition, the allocation of land is possible only in situations where the converted object is in common ownership, with two categories of property, the modified (reference) and the forming of the land.

The starting point, previously in the equity property from which the share or several shares are derived, does not cease to exist as a result of the procedure, but only changes: the area is reduced and the boundaries are changed.

Thus, the land from which the extract has been made remains within the modified boundaries (changed land).

In addition, a newly formed or non-existent area of civil and land law is created by an extract from the original site.

It is in the composition of the original and formed sites that the main difference is the separation of the land from the section regulated by article 11.4 of the Russian Land Code. As a result of the division of the land, there is no change in the land and newly formed land is created on the site of the source, but the original land ceases to exist as a separate legal object.

In the allocation of land to the participant, the joint property on whose application the land is to be allocated shall give rise to the right of ownership of the land to be formed and the said co-owner shall lose the right of joint ownership of the amended land, and the other participants in the joint ownership shall retain the right of joint ownership of the amended land, taking into account the changed size of their share of the property right.

252 In the event that the parties fail to obtain an agreement on the manner and conditions of the division of common property or to make a share of one of them, the member of the joint property has the right to seek, in judicial proceedings, the allocation of his or her share of the common property in kind.

Consequently, an extract from the original land in common share ownership may be made on the basis of an agreement concluded by the equity partners.

It should be noted that it is far from always possible to separate the share of the land in the share of the property; in certain situations, legislation may explicitly prohibit the allocation of the share of the land in question; for example, under art.

36. The owners of the premises in the multi-family home have the right to share property and the land on which the multi-family house is located, with elements of greening and improvement, and other facilities intended for the maintenance, operation and improvement of the house in question and the common property of the multi-family house on the said plot. However, according to article 37, paragraph 1, paragraph 4, the owner of the apartment building in the multi-family house is not entitled to make a share of the right of common property to common property in the multi-family house, including the share of the right of common ownership of the land.

In addition to the direct restrictions imposed by the legislator on the allocation of shares of land, it should be borne in mind that both modified and newly formed plots of land are subject to certain requirements set out in article 11.9 of the Russian Land Code.

One of the most important requirements is compliance with the maximum and minimum size limits set by the urban regulations.

This means, for example, that it is not possible to distinguish between the share of the land in the total share of the property on which the dwelling is located, if the land in question is less than the minimum size limit set by the urban regulations.

Allocation of a share in kind

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On the basis of article 252 of the Civil Code of the Russian Federation, any participant in the joint property may request the allocation of its share of the common property, which may be settled by mutual consent or through a court.

It is possible to divide a dwelling or to allocate a share in a dwelling in kind if the dwelling is a homeowner.

The apartment cannot be separated in kind, as the owner must be given ownership not only of the living rooms but also of each owner ' s own premises (kitchen, toilet, bathroom, corridor, etc.).

The division of home ownership may take place either in court or voluntarily through the conclusion by all owners of an agreement which is to be registered by the State; upon registration of the division of the house in kind, the right of common share ownership shall cease.

A classic example of a share in nature is a house, and a separate entrance and a new address are created at the time it is allocated in kind.

Often, the owners of land and apartments are looking for a share in nature, and if the land is a common business, the process of allocating the share in the dwelling is complex and labour-intensive. In many cases, giving a share in nature in the apartment is almost impossible, but in order to know your chances for allocation, contact our experienced specialists.

According to article 252 of the Code of Criminal Procedure of the Russian Federation, the allocation of a share in kind (house sharing) is possible when it does not cause damage to property that has several owners; moreover, once the facility has been allocated, the rights of the co-owners must not be violated.

The allocation of objects in kind is also permitted when their cost is not reduced.

Many co-owners ask, "Why can't a house be set aside in kind and an apartment not allowed?" This relates primarily to the equipment of a separate entrance and the continued use of the apartment as intended.

Just imagine how you can keep the proper use of the apartment, if one co-owner decides to allocate his share, which means that every owner, apart from the living room, needs a toilet and a kitchen.

Purposes of allocation in kind, division of properties and land:

For what purpose do the owners of joint property decide to give a share in nature? The answer to this question is obvious. Each proponent of such an allocation wants to have a separate property, that is to say, to cease their joint property rights in order to obtain a personal ownership of the object.

Mathematically, it's simple enough to imagine. Just imagine that you have 1/2 or 1/3 parts of one whole. To make some kind of deal with your part, you need other co-owners of joint property to give their "good."

By identifying the object in kind, you become the owner of one whole, that is, you can do whatever you want with your property.

A clear example is the allocation of a share in kind (house) for the sale, gift or pledge of property.

The term section (house section, land section) refers to the possibility of autonomous use of the allocated parts of the disputed structure, since there are always separate elements of it that cannot be separated (roof, foundation, engineering communication), which provides a normal condition for the use of the dwelling.

The possible options for a division (participation ) of home ownership are determined on the basis of a technical and construction expert ' s analysis, first of all the possibility of dividing the house according exactly to the size of the parties; if such a section is not possible, the expert shall provide options for the division of the home ownership with a deviation from the size of the share.

In this case, the expert shall determine the amount of monetary compensation to be paid to the participant in the joint property whose rights will be infringed, and the amount of compensation shall be based on the actual value of the house at the time the dispute is resolved.

The possibility of a real separation of a dwelling includes both a technical and a social dimension, i.e. the possibility of the separation of a dwelling.

On the one hand, the refurbishment of the structure should not impair the solid characteristics of the structural elements of the construction facility to be divided, on the other hand, the parts of the structure allocated to the disputing parties should have the same functional characteristics as the structure as the whole.

These properties are regulated by special rules that allow the building to be used for certain purposes - permanent residence, seasonal rest, etc.

In determining the possibility of a real separation of the dwelling, the expert understands that each single part should be an isolated part with a separate entrance; for the time being, the dwelling is provided with only one entrance.

The expert also takes into account such concepts as the conformity of the premises with sanitary and technical requirements, i.e. the level of improvement of the premises, in this case the availability of communal facilities (water pipes, sewers, central heating, gas supply), as well as the need for a toilet and a kitchen for every owner other than a living room.