The court has very limited legal grounds for depriving owners of property rights, but they do, and each owner of the dwelling must remember them at all times."SP"The representatives of the legal community recall which owner is at risk and how property may be confiscated from them.
Loss of ownership for mismanagement
As questionable as it may seem at first sight, mismanagement and negligence are valid reasons for the eviction of both the employer from the municipal home and the owner of the privatized apartment.
Thus, article 293 of the Civil Code refers to the "termination of the right of ownership of the unsustained housing" and prescribes a procedure for dealing with such situations.
For example, if the owner of the dwelling does not look after his or her property, refuses to maintain it and repair it, as well as disrupts the public order of the house and interferes with the neighbours, the municipal authorities may issue a warning to him or her and set a time frame for the renovation work.
However, if the offender does not take any action, the Court of Appeal of the Administration may decide to sell such an apartment from a public tender and to pay the proceeds to its owner, except for the cost of the renovation of the dwelling and the other consequences of the negligence of the former owner.
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"A similar decision, " says counsel.Oleg Sukhovwas issued in November 2016.
The administration of the Morshan district of Tambovsky province filed a lawsuit with the court for disenfranchisement of the ownership of the apartment by its undisturbed owners and for the sale of the property from a public tender.
Such radical measures were caused by the systematic failure of the owners to fulfil their housing responsibilities, resulting in total lack of sanitation, deterioration and destruction of walls, windows and floors in the apartment."
In the course of the trial, it was determined that the real owner had inherited the property after the mother ' s death, but there was soon a fire in the apartment, the consequences of which had not yet been eliminated due to the lack of money from the heir.
The Court, in accordance with article 210 of the Civil Code, under which the burden of maintenance is borne by the owner of the property, as well as the rules of the Housing Code, which prevent mismanagement of his or her housing, granted the claims of the administration.
Thus, the property rights of the former owner were revoked and the local authorities were obliged to sell the property from a public tender and the decision was not appealed and became enforceable.
Property losses of equity owners
Judicial practice has shown that the loss of ownership rights is easier than a full-fledged real estate, as confirmed by the Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation.
By its decision No. 78-KG 16-36 of 30 August 2016, it established a legal precedent, in fact clarifying that in the event of a domestic dispute between the two owners, the owner of the lesser share could be deprived of it by a court of law.
The small proportion of vessels has to be resolved because of domestic circumstances and because it is not possible to equalize the owner ' s officially owned portion of the dwelling to at least one metre.
In resolving such conflicts, judges often determine whether there is a separate owner ' s share in the disputed apartment and, if it is not available and it is difficult for co-owners to live in one territory, the court decides on forced eviction and compensation.
By the way, it was possible to get the share of the apartment to be purchased before the document was issued, but so far it was only a small meter — 1.2 or 3 "quadrats".
Usually, the courts recognized a small percentage less than one quarter and those that did not correspond to the smallest room in the apartment, and now the stakes have increased significantly.
The defendant owned one third of the share in a three-room apartment in St. Petersburg, and he bought it from his ex-husband in the 1990s, but they never managed to become good neighbors, and living together was a nightmare that the judicial authorities had to deal with.
The plaintiff, who was responsible for 2/3 of the dwellings respectively, went through the courts in the hope of depriving her neighbour of her property, acknowledging that her share was small, and expressed her full willingness to buy it, but the man denied the claim and refused the sale, and the district and city courts dismissed the claim.
But the Supreme Court reversed those decisions and took the plaintiff's side.
He found grounds for the enforcement of the disputed share and for the payment of monetary compensation to the owner, considering the case to be exceptional, and also pointed out that this "is necessary to restore the violated rights and legitimate interests of the other parties to the joint property".
Loss of rights of mortgage debtors
A mortgage-purchased dwelling held by a bank is the only real estate that can be taken out of debt even if there is no other dwelling from the borrower; therefore, the courts generally satisfy the creditor's claims for recovery of money from the debtor through the sale of real estate from a public tender.
A recent example of judicial practice: In the case of Sberbank, the Soviet District Court of Rostov-on-Don had, at the end of last year, expelled the debtor ' s mortgage apartment, which was unable to repay the mortgage in time.
As early as 2012, the man had taken a loan of 10 years to purchase housing, but the monthly payments had not been paid regularly; as a result, not only had the debt not decreased but had also increased by almost a quarter, taking into account interest and obsolescence.
The court granted the bank ' s claims by placing the dwelling on public bidding and setting the starting price of the sale at the equivalent of the borrower ' s debt.
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"Probably," says counsel Oleg Sokhov, "this practice will soon be followed by new claims, but it will be possible to recover real estate even if it is the only one with the debtor, and the relevant legislation has been drafted by the Ministry of Justice.
Amendments to the Code of Civil Procedure would make it possible to deprive a person of his or her apartment if it was at least twice the capacity per person per metre.
The court decided that housing should be offered for public bidding and that the money received less the debt to return to the owners for which they would be able to purchase less space for themselves."
Isolation of the share: voluntary, court-martial sale of the part. How do you protect yourself from exclusion?
Share ownership has many legal features and subtleties, and we will say in the article how it can deprive the owner of the dwelling and how it can protect itself from the risk of losing the share.
What's equity property?
In the case of joint ownership, the property is owned by several persons (entities) and a specific share of the common ownership of the property is determined for each of them.
Paragraph 2 of article 244 of the Russian Civil Code:
Property may be held in common ownership with the determination of the ownership share of each owner (dual ownership).
Each partner ' s share is part of the subjective right to property expressed in arithmetic terms, the amount of the share is determined by legislation or by an agreement between the partners; if there are no instructions and arrangements, the person shall be considered as the owners of equal shares.
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What is the exclusion of the share?
The removal of a share is the transfer of rights to another person, and the accomplice has the right to sell, gift, bequeath or otherwise dispose of his or her own share.
A certain procedure for the disposition of the share is established by law; if the owner of a part of the common property decides to sell it, he or she must take into account the primacy of the right to purchase his or her partners.
Article 1, paragraph 1.
250 SC of the Russian Federation:
When a share of a common property right is sold to an outsider, the remaining participants in the joint property shall have the right to purchase the share sold at the price for which it is sold and on other equal terms, except in the case of a sale from a public tender, as well as in cases where the share of the share of the joint ownership of the land is sold by the owner of a part of the building or structure situated on such land or by the owner of the premises in the said building or construction.
The seller is obliged to notify the co-owners of the planned sale in writing and a breach of the disposition order may result in the transaction being declared invalid.
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:: How can the owner be deprived of his share in the apartment?
Shareholders may not seize each other ' s shares; any methods of moral or physical influence for the survival of the co-owner are illegal.
The deprivation of ownership is permitted only in exceptional cases. There are three ways of depriving the owner of the share in the apartment:
- By his voluntary consent.
- It's a court order.
- In the context of a forced ransom.
Consider each way in greater detail.
:: Voluntary consent
This is a peaceful way to resolve the issue: the co-sponsors meet behind the table of negotiations and try to reach a compromise.
For example, the co-owners can offer to the disgruntled owner to buy his share.
:: Decision of the Court
The pre-emption of the share by a court decision is always based on the unlawful actions of the owner; the following circumstances may serve to initiate proceedings:
- The owner does not perform maintenance obligations for immovable property;
- The owner does not meet mortgage obligations.
- The owner violated the rights or legitimate interests of others (e.g. neighbours or associates).
- The commission of offences resulting in the confiscation of property as a punishment.
Enforcement may only be granted by a court order, which is guaranteed by law.
Article 35, paragraph 3, of the Constitution of the Russian Federation:
No one may be deprived of his or her property except by order of a court; compulsory disposal of property for public use may be carried out only on condition of prior and equal compensation.
If the owner does not agree to removal voluntarily and there is no basis for a court decision to do so, there is only one solution: a forced ransom of a small share.
:: Forced ransom
Three conditions must be met simultaneously in order to carry out the forced ransom:
- The share of common property rights is small.
- The proportion cannot be singled out in kind.
- The owner of the share has no significant interest in the use of the property.
It is irrelevant whether the owner agrees or not to the exclusion; if the court decides that all three conditions are met, the share will be removed and the owner will receive material compensation.
Interestingly, the concept of "small share" is not specified by law, and the extent to which the existing share of the common right of ownership is determined by the judge on his or her own behalf.
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· How to avoid exclusion?
When the owner is categorically opposed to exclusion and the co-owners sue him, an attempt must be made to convince the authorities that there is no reason for forced ransom.
♪ Get a judgment in your favor ♪
The courts take into account the combination of all three factors – a small part of the share, the inability to allocate in kind, the non-use of property; if at least one of the points is not true, they cannot force the owner's share to be sold.
In order to secure a court decision, professional lawyers could be used in their favour, although in some cases that was not the case, since it was obvious that the plaintiffs ' intentions were futile.
What's to appeal in court?
The court will consider whether there is a room in the apartment that corresponds to the equal share of the owner; if there is such a room, it is almost impossible to obtain a forced ransom for the plaintiffs.
The second point is the basis for the acquisition of ownership of a share, and if the basis is a sale conducted in accordance with all the requirements of the law, the share is unlikely to be insignificant.
The third nuance is that there is a need to use the apartment. If the owner has no housing other than a share in the apartment, the court will not satisfy the plaintiffs' demands.
The owner loses ownership of the share only after compensation has been paid in his favour and the property rights have been re-registered in Rosreister.
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Legal advice:
♪ Got a share in the apartment, other dolls try to take my share, can they take it away without my consent?
According to article 35 of the Constitution of the Russian Federation, no one may seize property without a court decision, in which case the only possibility for the other shareholders is a forced ransom; if the court recognizes that your share in the right to common property is insignificant, the property may be confiscated; in such a situation, you will receive compensation equivalent to the value of the share.
There's a 1/5 share in the apartment, and the other guy wants to buy it, but he's offering very little money. Can you get it at market value?
Someone can't be forced to buy property, but you can sell a share at market value.
In order to do so, it is necessary to use the procedure of selling your share, taking into account the priority right of purchase, and to notify the partners of the planned sale of the share and the price of the market.
If after a month they don't express their desire to buy a share, you can sell it to a third person.
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The real estate specialist in Inn Belyakov will tell us how to legally deprive the owner of the share in the apartment.
Published :Vadim Kalyuzhka, a specialist in the Topurist.RU portal
Sale of share in real estate in the absence of one of the owners
What if one of the owners is absent?
Participation of all owners in a common property transaction
In accordance with article 212, paragraph 1, of the Civil Code (General Part), the disposal of property held in equity is effected by agreement of all the parties involved.
Under article 220, paragraphs 2, 3 of the Civil Code, the disposition of property in joint ownership is subject to the agreement of all parties.
In transactions requiring notary certification or State registration, the consent of the other participants in the joint ownership of the transaction must be confirmed in a notarized manner; thus, all owners are involved in the transaction with the property in the common (win or joint) property.
This is usually reflected in the signing of a contract for the removal of real property by all owners.
Reliance from owners who are not present at the transaction
If any of the owners cannot be present at the transaction, they must give any person in charge of the transaction a power of attorney to perform the transaction; this power of attorney must be notarized by virtue of the requirement of article 167, paragraph 2, of the Civil Code.
Can real estate be sold when one of the owners disagrees?
In the absence of the owner ' s consent to the transaction or his power of attorney, it is not possible to dispose of the property.
What if one of the owners does not consent to or participate in the sale of real property?
Real estate owners may face a situation in which one of the co-owners, without claiming a share, has at the same time eliminated ownership of the property and participation in the costs of its maintenance, and has not given consent (trust) to the sale of his or her share.
Can one of the owners be deprived of his share in real estate?
In accordance with article 188, paragraph 5, of the Civil Code (General Part), the right to property is open-ended and the right to property may be forcibly terminated only on the grounds provided for in the Civil Code.
The grounds for the forcible termination of property rights are provided for in article 249, paragraph 2, of the Civil Code:
- Retrieving property against the owner ' s obligations;
- Forcible disposal of property which, by virtue of legislative acts of the Republic of Kazakhstan, cannot be owned by that person;
- Requisition;
- Confiscation;
- Forcible disposal of immovable property in connection with the seizure of land;
- The removal of unsustained historical and cultural monuments and cultural property;
- Nationalization.
Thus, mere self-disqualification from the use of the object and refusal to sell it are not grounds for the compulsory termination of the rights of the owner ' s share.
Can the lack of ownership of the share be regarded as a waiver of ownership and be converted to other owners?
Under article 250 of the Civil Code, a citizen or legal person may waive the right of ownership of property belonging to him or her by declaring it or by performing other acts (inaction) which clearly indicate that he or she has been removed from possession, use and disposal of property without the intention to retain any right to that property.
In accordance with paragraph 4 of the Supreme Court's regulatory decision on the practice of the courts in dealing with disputes concerning the right to housing left behind by the owner, the performance by the owner of acts that indicate a waiver of the right to property without the intention to retain any right to that housing would only result in the termination of the right to property on the basis of the court's legally enforceable decision to acquire the right to ownership of the dwelling by another person.
In accordance with article 242, paragraph 1, of the Civil Code, such a "empty" share will have the status of a non-owner; this share may be acquired by other co-owners of the dwelling by means of an acquisition period of time if the latter prove to the court that, for seven years, the abandoned share has been held in good faith, openly and continuously, with the consent of the owner.
Can the owner be deprived of his or her share of the maintenance costs?
According to article 215 of the Civil Code, every participant in the joint property is obliged to contribute in proportion to his or her share in the payment of taxes, fees and other payments on common property, as well as in the cost of its maintenance and preservation.
As a result, other owners are entitled to seek legal compensation for the relevant portion of the maintenance costs they have incurred, and it is possible to recover the missing owner ' s share in the real estate and, if its value is commensurate with the amount of the debt recovered, the full payment of that share may be made.
It should be borne in mind that, with respect to the three-year limitation period, such claims are likely to be met over the past three years.
Payment of the owner ' s share
The most likely way to resolve the problem would be through judicial division of common property by paying compensation to the missing owner.
According to article 218, paragraph 1, of the Civil Code, property in joint ownership may be divided between the parties by agreement between them.
In accordance with article 221, paragraph 1, of the Civil Code, the division of common property between participants in joint property, as well as the allocation of a share of one of them, may be carried out subject to the prior determination of the share of each of the participants in the right to common property.
Under article 218, paragraph 4, of the Civil Code, compensation in lieu of a share in kind may be paid to the participant by the other partners.
However, in cases where the share of the owner concerned is small, it cannot actually be singled out and has no substantive interest in the use of the common property, the court may, in the absence of the agreement of the owner, order the rest of the shareholders to pay compensation to the owner.
In the event of the owner ' s own removal of the share of the dwelling, the decision to pay compensation would be in accordance with the above-mentioned requirement; as a result of the payment of the value of the share awarded to him, his ownership of the share would cease (art. 218, para. 5, of the Civil Code).
Can the owner be deprived of his or her share of the right to an apartment?
The question of the possibility of forcibly depriving the owner of a share of the right to common property often arises: the share of any property is a source of constant problems for its holders; consider how to deprive a person of a share in a house or privatized apartment.
A large number of real estates in joint ownership have emerged during the privatization of housing; the distribution of inheritance and the purchase and sale of dwellings into shared property.
There is also a steady increase in the number of property owned in equity, which in turn makes problems inevitable for the owners of such property.
It is irrelevant to decide on the possibility of depriving the owner of his or her share, the grounds on which the property arose, whether privatization, purchase, inheritance, etc.
Therefore, there is no point in considering separately the possibility of removing against the will of the owner his share of the right to a privatized dwelling or, for example, the share acquired under the contract.
The rules are the same for share holders in any dwelling.
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To believe that ownership is a right once and for all, absolute and permanent, a great error: the legal system of any State is based on the provision that there are no rights without duties; therefore, there is no right to property without certain restrictions established by law.
The law prohibits the use of property rights in violation of the rights of others.
The owner of the share, as well as the real estate as a whole, may therefore be deprived of his or her property rights as a result of the systematic violation of the rights of others, and in cases where public and public interests so require, the law provides for the possibility of taking property from the owner; accordingly, the participant may lose his or her share of the equity property.
The deprivation of ownership is possible in the exceptional cases provided for by law, but it is not important whether it is a joint property or a person ' s property.
The most obvious cases of loss of ownership are the withdrawal of the owner ' s property; the disposal of the owner ' s property; or the destruction and destruction of the property.
The compulsory seizure of property from the owner may be due to two main reasons: those relating to the perpetrator ' s own actions or to the interests of the State and society.
In the first case, the property may be seized from the owner if the property is recovered in the event that the owner of the immovable property fails to fulfil its obligations.
A typical case is the recovery of an apartment, or a share of the right to it, in the event of default of a mortgage, and this includes the seizure of property when there is a lack of maintenance of cultural property.
What is possible when the owner lives in a house of cultural or historical value.
Another reason for denying ownership of an apartment is the violation of the rights and legitimate interests of others, in which case the owner ' s real estate or share in it may be sold out of tender.
The ownership of immovable property may also be lost as a result of the offences committed by the owner, which provide for the confiscation of property as a punishment.
The second group of deprivations of ownership is the requisition of property and the disposal of immovable property in connection with the removal of the site on which it is located for public or municipal purposes.
Under the law, compulsory confiscation of property is possible only by a court decision and only on grounds provided for by law, a requirement established by article 35, paragraph 3, of the Constitution of the Russian Federation.
The rules established by law to deprive the owner of ownership also apply fully to the removal of the owner ' s share.
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