Statement of claim for the allocation of a share in an apartment in kind 2023

Shared joint ownership of real estate under modern market conditions and legal norms is a beneficial solution for all co-owners.

Before you begin dividing the apartment into parts and proceeding with registration, you need to understand what an allocated share in the apartment is, under what conditions the agreement is drawn up and in what ways the living space can be divided.

What is an allocated share in an apartment?

For example, parents often want to provide their children with housing. To allocate a share in an apartment to a child, parents need to understand the procedure itself step by step, how to use the family certificate (capital), if possible. Or where you need to go first to draw up an agreement. There are other situations why they use shared ownership.

To find out how to allocate a room from a share in an apartment, or the share itself that is due to a child, spouse, relative or someone else, you must first understand what it is in general. Rights to an apartment can be legally declared in different ways. Article 244 of the Civil Code of the Russian Federation indicates the differences between the two types of ownership of real estate.

The conceptual apparatus contains such definitions as:

• joint ownership;
• shared ownership.

In the first case, the living space is not divided, but is equally given to the use of all family members, or husband and wife. That is why, after the death of one of the spouses, the property passes to the remaining spouse by law.

In the second case, the area for living is distributed between the shareholders of the co-ownership. In this case, the shares can be of different sizes. They must be described in detail in a special agreement.

Characteristics are given for each part separately.

An allocated share in an apartment dwelling is the allocation of a share to specific persons (spouse, children, relative, other person) in kind (in the form of living space, in kind), of a certain size and parameters.

If the living space has already been distributed between husband and wife, and the father, for example, decided to allocate a room from his share for his son, then they talk about allocating the room from the father’s share.

When the allocation of a share in an apartment in kind is formed, the geographical area for use can be visually divided by partitions and even redevelopment. In the latter case, they talk about additional registration through the architectural city administration of permission to carry out constructive redevelopment of the apartment.

The procedure then continues by making changes to the cadastral (technical) passport through the BTI service (now EGRN). The cost of the allocated living space must correspond to expert assessment, as well as market prices for each square footage included in each allocation separately.

What is the difference between separation of shares and division of property?

In order not to confuse the division of real estate with the legal allocation of part of it, you need to immediately understand that these are two different statuses of real estate, two different terms of legal manipulation.

When property is divided, it occurs between spouses because the property was acquired jointly. Here the main criterion will be the assessment of its cost, taking into account the specifics of obtaining an apartment.

For example, it was purchased with a mortgage using maternity capital, then allocating a share in the apartment assigned by the state to children is mandatory.

This means that the spouses will not divide the property between themselves until the child (children) are provided with their own living space.

If we are talking about the allocation of a property share in an apartment, then it is understood that the participants can only have their own part of the property. The rest (remaining) part will belong to other residents.

This happens in cases of equal division of the common living space for each of the residents and registered persons. To understand how to allocate a share in an apartment in kind, it is better to seek advice from a lawyer or notary.

In general, the differences between the division and allocation of a share of real estate can be presented in the table.

Chapter	Share
After the procedure, the owner will each have their own housing, a separate room.	The shared owner will have the right to live independently in the living space allocated for him.
The apartment ceases to be classified as common property of residents.	The rest of the apartment, not allocated as a share, remains in the common property and use of the residents.

How to allocate shares in an apartment

The mechanism for determining shares is simple. It is enough to divide the total area of ​​the apartment by the number of people applying for the property. Then, for each share, its size is compared with the norm, which is determined by housing legislation in Russia for each person.

When you need to find out how much it costs to allocate a share in an apartment, then attention is paid to the repairs carried out.

If changes have been made that cannot be separated geographically, then the owner who paid for all this can claim an increased area in the apartment.

There are several options for how to distribute parts:

1. On a voluntary basis.
2. Through the courts.
3. In its natural form.
4. In monetary terms.

Making a decision in court means that the allocated share in the common apartment will be assigned by forensic experts. The best and fastest solution is a voluntary conclusion of a transaction between the participants.

Voluntarily

Apartment sharing is always formalized by drawing up an agreement between the owners. This means that legally such an act is recognized as a transaction made on a contractual basis.

The agreement shall be in writing, setting out all standards associated with such contracts.

In addition, there are a number of nuances in which it is necessary to seal agreements through a notary. For example, a transaction is carried out based on maternity capital, allocation of shares in an apartment based on maternity capital. In this case, the interests of children must be taken into account first, since the certificate is primarily issued by the state to provide children with living space.

Judicially

The court should be contacted only in cases where the parties to the transaction could not agree on the transfer of rights, or there are disputes or disagreements.

If you need to allocate housing in an apartment to children, then determining the share through a judicial authority will allow them to finally assign part of the home to them. If it is necessary to rebuild the entire apartment inside, the plan is also approved by the court.

When deciding where to start allocating a share in an apartment, you need to immediately understand that resolving disputes through the court will require additional financial expenses.

Actually

When they talk about the allocation of a part of an apartment in kind, then an agreement is presented to separate shares in the apartment with the opportunity for their owners to use them autonomously (in isolation).

In this case, each share must include:

• living space;
• kitchen;
• bathroom;
• corridor (hallway);
• exit door.

In fact, the entire apartment will look like a so-called communal apartment. In this case, redevelopment is mandatory, if possible. And the size of the share must necessarily correspond to the footage. For example, 1/4 of the apartment should be planned and arranged in such a way that it does not become smaller or larger.

In monetary terms

Legal practice also shows that there is another option - allocating an autonomous share in a privatized apartment in value terms (money equivalent).

But experts recommend that it is better to carry out such transactions with the voluntary consent of the participants already available.

Often, using this method, one of the owners simply buys the share of the other owner and subsequently becomes the sole owner of the entire apartment.

If the area is very small, not standardized according to the law of housing law, then its owner can file a claim with the court for the allocation of a share in a larger apartment.

If this is not possible, then the compensation mechanism is triggered without the consent of the owner.

As soon as the owner of a small territory receives such compensation, he automatically ceases to have proprietary rights to it (Article 252 of the Civil Code of the Russian Federation).

How to separate space in shared housing

Based on family status, marriage certificate (or contract), spouses, having acquired their housing through joint efforts, can allocate a marital share in a jointly owned apartment. Why is this being done?

In general, practice shows several reasons why this mechanism of alienation of property rights is used:

1. A case where it is necessary to sell an object in parts, setting a different price category for each of the plots.
2. The occurrence of any inconveniences or restrictions that arose during the joint right to own and dispose of the apartment. For example, the unacceptable lifestyle of someone in the household (drug addiction, alcoholism, etc.).
3. When looking for a way to allocate all the shares in an apartment, in order to have the right to dispose of your part as you want.
4. The desire to provide property rights to your child (children).
5. One of the options for resolving a conflict situation that has arisen with a co-owner with whom the apartment is jointly owned.

An apartment can be divided in kind only under the following conditions:

1. Each part has its own bathroom.
2. The layout makes it possible to equip each autonomous apartment area with its own kitchen.
3. There is a separate entrance to each of the shared territories.

If it is impossible to autonomously arrange the living space belonging to each of the owners of a part of one apartment, the allocation of a share in the apartment is carried out through the court.

You need to understand that receiving your own share may mean that the rest of the apartment cannot be used or disposed of.

In reality, when they begin to draw up an agreement on the allocation of isolated shares in an apartment, it turns out that most of the housing stock in Russia is not planned in such a way that it is possible to arrange a separate entrance or make a bathroom on each of the divided plots. In this case, experts simply recommend limiting yourself to a room-by-room division. But a natural allocation of a share cannot be done in a one-room apartment.

How to draw up an agreement on determining shares

A portion will be allocated for documents that should be collected in advance to allocate a share in the apartment. Based on these papers, an agreement form is filled out, which must necessarily reflect:

• • information about the person-owners based on civil passports;
  • apartment location address;
  • a detailed description of the technical and operational characteristics of each shared living space;
  • apartment number according to cadastral registration;
  • the specific size of the shares being determined;

• indication of the status of the personal account for payment of housing and communal services;
• information on the presence of any encumbrances on the property in question - arrest, bank mortgage, rent, etc.

A sample agreement can be downloaded here.

Documents for concluding an agreement:

• passports of citizens;
• title document for the apartment - a contract of sale, exchange, donation, or a certificate of the right to inherit;
• technical documentation for the apartment;
• an explanation of the building in which the apartment is located;
• certificate (personal account) about the absence of debts on utility bills;
• an extract from the house register about the resident (registered) persons.

I may also require other additional documents. For example, documents of minors in an apartment, when determining the share of a minor.

Registration procedure:

1. Submission of documents for concluding an agreement.
2. Drawing up and reading the agreement.
3. Registration of the transfer of ownership rights at the Registration Chamber through the submission of a special application.
4. Payment of the state fee for making changes to the database when there is a change of owners.
5. Each owner of his share receives a copy of the agreement with a mark from the Registration Chamber.

Registers the agreement and transfer of rights within approximately 10 days from the date of application. If the owners cannot immediately pick up the documents for some reason, they should know that the completed papers will be stored in a government agency for 1 month. Then they will be sent to the archives.

Allocation of shares with maternity capital

A portion can also be allocated in case of purchasing housing with maternity capital. The amount of capital is determined to provide housing for children. Adult children (who have become adults) will then be able to privatize their share in the privatized apartment in order to sell it. Or they can remain to live in their part of the living space.

When an apartment was purchased with a mortgage using a subsidy from the state budget, this was done on the basis of a special document received by one of the parents of the family - a family certificate. Determination and calculation of shares will be possible only after full repayment of the mortgage, and then registration of the apartment first in the name of one of the parents.

The children need to allocate the shares first, and then the spouses can divide the rest among themselves. Or they can continue to use the common property of the part of the apartment that does not belong to the children.

To complete the transaction, it is extremely important to obtain a certificate from the bank confirming the complete closure of the mortgage and credit account, as well as the absence of any debts.

Registration (in the Registration Chamber) of minor shareholders in Russia is free (without paying a state fee).

When you need to understand what an allocated share in a common apartment where spouses live is, then you just need to understand one important detail - this is the transfer of ownership from a common to an individual form of ownership.

If privatization is also added to this, it turns out that there used to be a shared apartment, but now it contains areas classified as “private property.” Spouses can share equal shares among themselves (50/50), or they can divide in different parts (40/60).

You will learn further about how to sell a share in an apartment step by step.

We remind you! We have an online lawyer on our website who, as part of a free consultation, can explain to you all the nuances of allocating shares and selling them. Simply sign up using the special form and we will call you back.

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How to allocate a share in an apartment: important points

The allocation of a share in an apartment in kind is carried out if the property is in common shared or joint ownership. The presence of shares does not mean that their owner can use a specific part of the residential premises.

The allocation of a share in an apartment terminates the right to reside in the living space if the shareholder receives monetary compensation for his part of the property. The owner of a smaller part of the property in practice can occupy a large premises. The procedure for using shared ownership is determined by agreement between the owners or in court.

Voluntary allocation

• The best option, when it is possible to allocate a share in an apartment, would be the situation if the share corresponds to a separate residential premises and other owners of common property do not object to the room becoming an independent piece of real estate.
• It is more difficult to decide on living space, where the shares do not correspond to the actual “square meters” occupied.
• Voluntary determination of shares is possible by agreement between the parties (written). The document must provide:

• legally defined shares of each property owner;
• information about the total and living area of ​​the premises;
• documents for housing - extract from the BTI;
• certificates of ownership of housing or individual shares, if their legal dimensions were determined earlier;
• the value of the property - if the parties wish to include such information in the agreement.

You need to allocate a share in the apartment taking into account the rights of a minor child. He can use housing on an equal basis. If part of the living space is to be transferred to such an acquirer, then the guardianship authorities may be involved in the process of concluding the transaction, which must agree that the alienated part of the property does not violate the rights of other minors. The child’s share is supposed to be no less than the living space that he occupied before signing the agreement.

Protection of rights in court

The provisions on common shared ownership are established by Art. 285 of the Civil Code of the Russian Federation. The apartment can be indivisible, i.e. Shared owners do not have the opportunity to provide each owner with an isolated room with separate communications, a kitchen, a bathroom, and a toilet.

You can try to obtain through the court the allocation of a share in kind from real estate designed to accommodate several families. The statement of claim is drawn up according to the rules of Art. 131, 132 Code of Civil Procedure of the Russian Federation.

The rights of the living child are taken into account, including those who are in educational and medical institutions. The statement of claim must contain information about the size of the shares of each of them.

It is important to justify the technical condition of the property. If the shared ownership corresponds to one room, then the court will satisfy the requirements. It is difficult to isolate a share in an apartment without isolated premises. In such a situation, the claim will most likely be denied.

The following documents must be attached to the application:

• certificate of ownership of real estate;
• technical documents - cadastral passport, certificate from the BTI;
• title document for housing - share sale agreement, inheritance certificate;
• document confirming payment of state duty;

The claim must be considered with the participation of interested parties. If the court satisfies the plaintiff’s request, then the share is registered as separate real estate.

The judge's decision serves as the basis for registration actions in Rosreestr. New title information is required to sell the allocated share at the market price.

Alternative way to receive a share

Most of these conflict situations end with the conclusion that the allocation of a share in kind is impossible. Apartments are premises with a common kitchen, bathroom, toilet. But shareholders can get the court to determine the procedure for using residential premises.

The judge’s ruling applies specifically to those shareholders who applied to the authorities to protect their rights. The new owner of the share will need to determine the procedure for using the housing independently.

It is possible to resolve the conflict by agreement. An apartment is an indivisible thing that complies with the provisions of Art. 133 Civil Code of the Russian Federation. Such an object cannot be divided without causing disproportionate damage to living space. The allocation of a share in kind can then be replaced by an obligation to pay monetary compensation corresponding to the real value of the property.

The allocation of a spouse's share is possible only after the sale of real estate or the determination of the procedure for its use. A spouse may demand an increase in his share of housing if he is raising a child . The portion of the minor’s living space that can be transferred to trust management is also taken into account.

The division of the spouses' real estate is carried out by agreement or through the court. The possibility of redevelopment and creating several isolated residential premises from one object is taken into account.

The allocation of a share is also possible in case of joint ownership not only of spouses, but also of property owners to whom the apartment was inherited. Shares can be established not only in an abstract amount, but also allocated in kind, for which the property must meet certain requirements - not contain illegal alterations, comply with sanitary and construction standards.

An important requirement is the availability of the necessary title documents for the whole or shared property.

The cost of the allocation depends on the volume of technical and legal measures taken. Costs are related to the value of the property and legal fees.

Carrying out such a procedure independently is difficult, since if you seek protection of rights through the court, you need to competently substantiate your position in the authorities and prepare a legally correct and meaningful statement of claim.

The contractual procedure is also fraught with difficulties, since it is necessary to ensure that the worked out conditions suit all interested parties. The assistance of a specialist in such disputes is desirable and contributes to the favorable completion of all legally important actions.

Still have questions? Write your question in the form below and receive detailed legal advice:

Apartment section

The Civil Code of the Russian Federation (Civil Code of the Russian Federation) established the use of common shared property. The procedure for using property that is in joint and shared ownership is also determined by the Family Code of the Russian Federation (FC RF).

Division of an apartment is possible both by agreement of the co-owners, certified by a notary, and in court (most often used in divorce).

An agreement between the co-owners of a residential property is the simplest option. It can provide for the division of property not only in equal shares, but also in other amounts.

The allocation of a share from the common property of one of the owners does not terminate the rights to the common property of the other co-owners. But at the same time, the citizen who allocated the share ceases to have the right to common property.

To allocate a share in an apartment in kind , the following conditions must be met:

1. the room must be isolated from other rooms;
2. must have a separate entrance;
3. must comply with sanitary standards.

To divide a personal account into an apartment, it is necessary that the property be shared. If the apartment is jointly owned, then before dividing the bills, you need to register shared ownership with Rosreestr, defining the share of each citizen. After this, you can apply to split the accounts.

How to divide an apartment into shares?

The division of an apartment into shares of ownership is possible in the case when the dwelling is in joint ownership or in shared ownership. Thus, the allocation of a share can be carried out by reaching an agreement between the co-owners, or if it is not possible to reach a consensus, then only a judicial procedure .

It must be borne in mind that the owners can draw up an agreement in which the shares will not be equal, but will be in a different ratio. Then it must indicate the specific shares belonging to each owner. In this case, it is necessary to distinguish between the allocation of a share from common property and the division of common property.

The allocation of a share to one of the owners does not terminate the rights of other co-owners to common property in the apartment. However, a citizen who has allocated his share is deprived of the right to common property in the residential premises.

It should also be taken into account that the allocation of a share from a common or shared ownership can only be done when the room to be allocated has a separate entrance or is isolated from other rooms in the residential premises, that is, it is not adjacent to other rooms in the apartment.

The disposal of living space , which is in shared ownership, is carried out by agreement of all its participants. Each of the owners has the right, at his own discretion, to use and dispose of his shares, namely to sell, donate, exchange, etc.

When the parties cannot draw up an agreement and it is necessary to reach an agreement, go to court. In this case, the general rule applies: if the shares in the document confirming ownership are not defined and not registered, then they are equal . The allocation of a share in kind takes place in court .

Allocation of a share in kind in an apartment

Division of an apartment in kind is possible in court. The allocation of property in kind that is in common shared ownership is possible only if there is no damage to the home. Namely, a situation must be maintained in which the residential premises can be used for their intended purpose.

• So, if the division of the residential premises leads to the fact that it will not be possible to actually use it, then the remaining co-owners may be asked to pay compensation for their part of the apartment.
• In this case, ownership of the share in the residential premises passes to the person who paid the compensation.
• But this option can only take place with the consent of all co-owners to such actions.
• The allocation of a share from the common property can be carried out in two ways :

1. through the allocation of part of the property in kind in proportion to the ideal share, which is an expression in square meters or fractions that will belong to the owner of the share;
2. through payment of monetary compensation (cost) of the share.

Shares can be “ideal” or “allocated in kind” . An example of an “ideal share” is when each participant in such shared ownership has a share in the residential premises. An example of a “share allocated in kind” - everyone has a share equal to a room. A one-room apartment is indivisible, and shares in it can only be ideal.

Division of an apartment during divorce

An apartment acquired by spouses during marriage is joint property. Joint ownership refers to the right in which citizens own residential premises without determining the shares of each.

An apartment acquired by spouses during marriage is considered their joint property, even if it is registered in the name of one of them. In the event of a divorce, residential meters are divided in half, that is, each person is registered as shared ownership of ½ share, according to the rules of Art. 34 RF IC.

But as judicial practice , when dividing jointly acquired property, spouses cannot find a common language. A very large number of cases are considered by the courts under this section. Each spouse believes that he has more rights to living space than the second spouse.

The husband usually mistakenly thinks that if his wife is a housewife, then she did not participate in the purchase of the apartment. In accordance with paragraph 3 of Art. 34 of the Family Code of the Russian Federation, a spouse who was engaged in housekeeping, caring for children, or for other valid reasons did not have independent income, also has the right to common property

Example

The ex-wife filed a claim against her ex-husband demanding the allocation of a share in the jointly owned apartment. As it turned out, the apartment was purchased by the defendant six months before the marriage.

In support of her claims, the plaintiff stated that she added 1,000,000 rubles to purchase the apartment, which she borrowed for personal needs. Also the apartment was in need of renovation. It was made with the plaintiff's money.

After assessing all the evidence presented, the court rejected all claims in full.

The reasoning part of the decision in the case contained the court's arguments that the disputed apartment was acquired by the defendant before marriage.

Consequently, property acquired before marriage is not marital property, but is personal property. Thus, the apartment is not subject to division.

How to divide a personal account in an apartment?

It is possible to divide personal accounts for residential premises in the case when the property is registered as shared property with the determination of the share of each owner. Since it is based on the size of each citizen’s share that utility bills for the maintenance of living space will be calculated.

If the property is joint, then it is necessary to draw up an agreement or go to court to determine the share of each. Next, contact Rosreestr to register the right.

Next, you need to contact the management company , which was chosen by the residents of this apartment building. Each owner of a share in a residential premises must submit the following documents:

1. an application with a request to open a new personal account for him;
2. present your passport;
3. extract from the Unified State Register.

It should be noted that the need for this procedure arises when a situation occurs that more than one family living in the apartment runs a separate household, and the one for whom the personal account is opened - the responsible tenant - must pay. A similar situation occurs when spouses who are forced to live together, but in different rooms, divorce.

The division of personal accounts is only the distribution of responsibilities of people living together to pay utility bills.

The use of such measures allows two separate families running a separate household to pay only according to their personal account.

Conclusion

The division of an apartment is possible in two ways:

1. by reaching an agreement between the owners, and it must be certified by a notary;
2. judicially.

If the premises are jointly owned, then its division is possible only by allocating the citizen’s share. But at the same time, the citizen loses the right to common property.

The allocation of a share in kind for a dwelling can only be made if the owner is provided with a room with a separate entrance , as well as a separate bathroom and technical room.

But in practice, in an ordinary apartment this is not possible. In such situations, the court must determine the procedure for using such residential premises.

So, if it is necessary to separate personal accounts, then you need to contact the management company servicing the house with an application on behalf of each share owner.

When a home is jointly owned, in order to separate personal accounts, it is necessary to register shared ownership of the apartment.

It should be understood that the division of bills is a way of dividing the responsibilities of the co-owners of the apartment to pay utility bills.

Participation in the apartment division

The two-room apartment is registered as shared ownership between mother and daughter. The following people live and are registered in it: a mother, a daughter, her husband and their two minor children. If there is a need to divide the apartment, will the children participate in the division or only the mother and daughter?

Answer

As a rule, the division of an apartment in kind is not carried out, since it is possible to divide in kind only a living space equipped with separate entrances, kitchens, and bathrooms, with the owners retaining equal square meters, which is not realistic to do with an apartment. As a rule, only private houses can be divided in kind. Thus, you can only determine the order of use of the living space by assigning this or that room to family members. Determining the order of use does not affect the shares of each owner in the apartment; they remain the same amount - ½ each. In this case, other family members, namely children, do not have ownership rights.

“Allocation of share in kind”

If the property is under common ownership, then the implementation of the functions of managing and owning property acquires some features.

Joint ownership does not imply fixation of a specific share size for each of the owners; therefore, all decisions regarding the property object become the result of collegial discussion and consent of the owners to take certain actions.

Features of shared ownership

If real estate is used as an object of shared ownership, then each owner has the right to make independent decisions exclusively regarding his share. As for resolutions related to an apartment or house, they are adopted only if the interests of other owners are respected.

Both described options often become the subject of controversy between citizens who have joint or shared property.

 Shared ownership can be the result of free will or result from inheritance of property.

If there are frictions with the owners of the premises, you can try to resolve the issue by achieving a “balance of interests”; if this cannot be achieved, the only solution is to allocate a share in kind.  

Legal meaning of allotment of shares

The essence of the legal term is indicated in the Housing Legislation. Allocation is a specific procedure that is carried out to transfer from joint ownership to individual ownership of a certain share in the disputed property. The formation of your own share can be used to achieve the following goals:

• sale of property;
• independent disposal of the due share of property;
• overcoming problematic situations with other owners;
• elimination of restrictions imposed by joint ownership.

The allocation of a house to an apartment in kind can be made by absolutely any property owner. The procedure is not tied to specific time periods and can be carried out regardless of the position of other owners.  

Allocation of shares through agreement of the parties

A compromise option is to draw up an agreement between property owners on the allocation of a share. The generated document must be registered with a notary, with subsequent reflection of the share in the documents regulating the property regime.  

To do this, residents provide a copy of the agreement to the Rosreestr office for state registration of changes made to the property. If this method fails to achieve the allocation of a share, then citizens have to go to court to force a solution to the problem.  

Practical and technical side of the issue

The allocation of a share in residential/non-residential premises can be considered from several perspectives:

• decision on the legal component of the upcoming allocation;
• searching for options for the practical implementation of the allocation of shares.

The actual division of property is sometimes very difficult due to the tiny size of the living quarters and the minimum number of rooms in the apartment (one). The simplest model of allocation arises when determining shares in a house or apartment with a large number of rooms.  

Acquisition of a share in joint ownership

Analyzing the norms of the Housing Legislation, we can come to the conclusion that there are alternative ways to resolve the issue under consideration:

• shares are not determined, but in return, the remaining owners of the property pay the “former” owner monetary compensation, the amount of which is calculated taking into account his share;
• interested citizens can adjust the size of the share, both in the direction of growth and reduction. In this case, the decision made must be drawn up in the form of an agreement, endorsed by a notary. The difference in the size of the share is compensated by the parties in monetary terms by transferring the agreed amount to the owner’s account.  

If the described methods do not change the current situation, then you should think about drawing up a statement of claim together with a professional lawyer who will ensure unconditional protection of the legal rights and interests of the applying citizen on the basis of the norms of procedural legislation and Art. 16 LC RF, Art. 30 Housing Code of the Russian Federation. The allocation of shares is described in sufficient detail in judicial practice, which demonstrates positive and negative solutions to this issue.

Allocation of a share in kind from common property

The law provides for the possibility of dividing property that is in shared ownership. A popular option is the purchase of the share of one of the owners by other owners. As a last resort, a person can sell his share to third parties.

The Civil Code allows for the further use of the house by all owners, but by registering it as separate residential properties. Let's consider how to formalize the allocation of a share in kind from the common shared property.

What is an allotment of shares in kind?

The rules of law regulating the allocation of a share of joint property in kind are provided for in Art. 252 of the Civil Code of the Russian Federation. Although they are stated in a general manner, they are used in practice mainly in relation to residential buildings.

The allocation of a share is not a division of property. Initially, the object is jointly owned by the parties. For example, during their marriage, spouses built a house with common money. It belongs to the common joint property of the spouses.

A feature of this ownership regime is the absence of a specific share assigned to each of the parties. Therefore, each of the spouses is actually the full owner of the entire property as a whole.

The allocation of a share means the transfer of an object from joint ownership to shared ownership. The allocation of a share in kind is the division of a house into two independent residential units, each of which will be smaller in area.

Why exactly a residential building?

A residential building is often cited as an example of allocating a share in kind. First of all, this happens because it is difficult to imagine another object that can be divided without harm to it and without losing its basic qualities.

The residential building can be divided into two apartments. To do this, it is necessary to equip a separate entrance and fence off the initiator’s share with a wall.

The allocation of a share in kind from the common shared ownership in an apartment in an apartment building can only be carried out if it was originally composed of two apartments. Otherwise, problems will arise with installing a second bathroom if it was not originally provided for in the plan.

What is the purpose of the section?

The owner may need to allocate a share in kind in order to become the individual owner of the property. The share is registered in the form of a separate apartment and is documented. Changes are being made to Rosreestr regarding the division of one residential building into two apartments.

From the moment the documents are received, the owner will be able to dispose of it at his own discretion. He has the right to sell it, donate it, bequeath it.

The law prohibits co-owners of objects under the right of common shared ownership from carrying out any of the listed activities without the consent of other owners. And in some cases, even the consent obtained will not help the citizen. If the question is about a mortgage loan. The bank will refuse to provide a loan for a share in the house. You can only take out a mortgage on an entire property.

Primary requirements

The allocation of a share in the right in kind is possible as follows:

• on a voluntary basis;
• judicially.

If the owners do not object to granting one of the co-owners the right to allocate a natural share, then they draw up an agreement. The document is subject to registration in Rosreestr.

In the event of a conflict between owners, the issue is resolved in court. This requires specialized expertise.

The examination of the allocation of a share in kind includes clarification of the following issues:

• is it possible to divide the house into two full-fledged residential units;
• how to carry out the division so as not to harm the house;
• determining the wear and tear of the house;
• scope of work;
• market value of the house;
• approximate cost of reconstruction work.

If the object cannot be divided, the result of the examination must include information on the amount of compensation that the owner can receive.

Sanpin norms

The examination must include information on the technical feasibility of separating a share in kind from common property. Among them:

• lighting standards;
• air speed;
• moisture level;
• other standards.

If a potential object does not comply with at least one standard, then the division is technically impossible. Living in such residential premises can harm the health of citizens living in it.

In addition, the possibility of installing sewerage, gas, water, and heating is checked for compliance with standards.

Extrajudicial section

The extrajudicial procedure for allocating a share in kind includes:

• carrying out work on the reconstruction of residential premises;
• preparation of technical documentation for the facility;
• preparation of an agreement on the allocation of shares;
• registration of the property in Rosreestr as an independent residential premises.

Preparation

The first stage in the reconstruction of the premises is the development and approval of the project. Before starting construction work, it is necessary to obtain permission from all authorized bodies.

A separate entrance to the premises is required. The installation of household amenities (with the exception of heating) is at the discretion of the owner.

Technical plan

After the property exists, technical documentation is required. To do this, you need to contact the BTI department located at the location of the object.

The engineer must measure the premises and draw up a cadastral passport for the apartment. It is prepared in written and electronic form. The document is certified by an electronic signature of a specialist.

Formalization of the agreement

The agreement is drawn up in writing. The parties to the document are the person allocating the share and other owners of the object.

When drawing up an agreement, special attention should be paid to compensation for the cost of living space. In accordance with the law. The allocated share must correspond to the price that was set for it before the allocation. For example, a residential building costs 2,000,000 rubles. The owner allocates ¼ share. Its cost should be 500,000 rubles.

The number of copies corresponds to the number of owners. Each of them signs the document.

Registration

After drawing up the agreement, certification and registration of the document in Rosreestr is required. To do this, you need to prepare documentation:

• civil passports of the parties;
• statement from each shareholder;
• title documents for the house;
• agreement;
• fee receipt;
• power of attorney (if the interests of one of the owners are represented by a proxy).

Documents are submitted to Rosreestr:

• through the MFC;
• by mail;
• through State Services.

To submit documents through the MFC, you must obtain an electronic coupon through State Services or a regular coupon directly at the center.

The parties personally or through representatives contact a specialist. Each statement reflects its requirements:

• initiator – registration of the allocated share;
• other owners – re-registration of the remaining property.

The technical passport can be presented as a paper document or simply indicate its number in electronic storage. In the second case, a paper copy is not required.

The period for receiving the service is 10 days. If documents are sent through the MFC, the period will increase by 2 days.

Duty

The fee must be paid before submitting documents or within 4 days after. Providing a receipt is possible at the initiative of the payer.

If within 5 days the funds do not arrive in the Rosreestr account. Then the documents are returned to the applicant.

Duty amount:

• for the initiator – 2000 rubles. for registration;
• for co-owners – 350 rubles. for re-registration.

If funds are transferred through electronic services, including through State Services, the fee can be paid at a discount. A coefficient of 0.7 is applied to the amount.

Judicial order

If the parties cannot agree on their own, the judicial authorities will come to the rescue. The allocation of a share in kind from common shared property is not regulated by law. Analysis of judicial practice suggests the following procedure:

• prepare technical documents;
• draw up and submit a claim;
• attend court proceedings;
• registration.

The applicant pays a fee, which is calculated based on the price of the property’s share.

Technical documents

Before obtaining the consent of other owners, any redevelopment activities cannot begin. You must first collect documentation for the residential building:

• technical passport (if the facility was put into operation after December 31, 2011);
• an extract from the Unified State Register of Real Estate on the ownership of the object;
• conclusion of technical expertise.

Preparing a claim

Drawing up a statement of claim for the allocation of a share is quite complex. It is advisable to hire a lawyer to complete this process. The document must include the following information:

• information about the house (address, area);
• information on the expert opinion on the technical feasibility of the section;
• proposals for redevelopment;
• the procedure for using new objects;
• calculation of compensation.

The following must be attached as evidence:

• title documents;
• fee receipt;
• the applicant's civil passport;
• expert opinion;
• object assessment;
• technical certificate;
• extract from the Unified State Register of Real Estate;
• other documentation.

The application is sent to the district or city court at the location of the residential building.

Trial

The allocation of a share is a technically complex proceeding, so the initiator can engage a lawyer as a representative. To do this, you will need to issue a notarized power of attorney.

In order to justify your demands for the allocation of a share, it is necessary to conduct a technical examination. An appraisal is required to clarify the amount of compensation.

The court makes a decision on the allocation of a share in kind based on the evidence presented. Therefore, in most cases, the proceedings do not take much time.

Registration

After the court decision comes into force, the citizen has the right to begin actions to redevelop the house. After the reconstruction is completed, the object must be registered in the prescribed manner. To do this, the following documentation is required:

• the applicant's civil passport;
• application for registration of an object;
• the court's decision.

If the documents are submitted not by the owner, but by his representative, it is necessary to attach a power of attorney and the civil passport of the authorized representative.

Allocation of a share in kind is not the most popular option when dividing marital property. This option is usually used only for residential buildings. The allocation can be made voluntarily, by agreement of the parties. If one of the owners is against it, then a judicial procedure is envisaged for resolving the issue.

It is advisable for the court to conduct a technical examination and an independent assessment of the object in advance. A prerequisite is the registration of a new object and re-registration of the rest.