Can I withdraw my share from the apartment?

2.8.2017
176943

Former spouses, as well as the majority of those who received housing as a gift, inheritance or through privatization - all this is a multimillion-dollar army of “co-owners” who own shares in apartments. It is the properties that are in shared ownership that account for the lion's share of housing conflicts, which cannot even be resolved by going to court. But extrajudicial mechanisms offer as many as four ways to remove owners from the conflict while respecting the interests of all its participants. This works even in cases where the dispute has reached a stage where the parties are no longer capable of peaceful negotiations.

Natalya Mikhailyukova, a lawyer for the Russian Guild of Realtors, admitted that every day people living in apartments that are in shared ownership come to her for consultations. The main question is what to do if other co-owners want to move into this apartment, sell their share, or otherwise claim their rights.

Currently in Yekaterinburg, only about fifty individual shares in apartments are sold through real estate agencies. In total, there are much more such objects on the market, but they are sold privately or through black realtors, without the involvement of reputable agencies. This happens due to the fact that professional market participants are extremely reluctant to work with individual property shares.

Yulia Balay
director of the office of the Academy of Sciences "Novosel"
If a share in the ownership of an apartment is put up for free sale, this almost certainly means that there is a conflict between the co-owners, and they are no longer able to resolve the situation peacefully, even if this path will allow the co-owners to receive greater benefits. Selling a separate share in an apartment to a third party is always a loss of money - about 30% of the value of the property. That is, half of the apartment worth 2 million will be sold not for a million, but for 700 thousand. And even in this case, the chance of selling is one in ten. If a client comes to the agency selling a separate share, the realtor understands that if he undertakes to sell it, he will find himself in an extremely unpleasant situation. The only way for a realtor to help such a client and save his face is to become a mediator - an intermediary between the co-owners and try to resolve the situation in the interests of all owners, leaving out all personal relationships of the participants.

Selling a share of an apartment “outside” is not only a losing option in terms of money, but is also fraught with further escalation of the conflict due to the inclusion of a new owner of the share. At the same time, there are four peaceful (and economically feasible) ways to resolve the problem share situation. Of course, the owners of problematic properties know or at least guess about the existence of these methods, but do not always understand how to implement them in real life, especially in conditions of conflict between co-owners.

Method 1. Sell the entire apartment

If the owners sell the entire “shared” apartment, they will receive the full price for it. And it will be possible to divide it in proportion to shares. After which everyone buys a home with their own money or uses it in some other way. The scheme can be effective even if initially there is only a one-room apartment in shared ownership.

Yulia Balay
director of the office of the Academy of Sciences "Novosel"
The man left behind a one-room apartment, purchased outside of marriage. It was claimed by the wife (now a widow) and the child from the testator’s first marriage. Accordingly, everyone was entitled to one second share in the property. The heirs were unable to come to a common decision. One of the co-owners tried to sell his share, but was unable to. As a result, no one lived in the apartment and it was even impossible to rent it out. The child's mother (the testator's ex-wife) contacted a realtor. He found two rooms in communal apartments, the total cost of which was equal to the market value of the disputed apartment. The parties were satisfied with this version of the “exchange”. The apartment was sold, the heirs received a room in return for their shares, and are now renting them out.

Method 2. One of the co-owners sells a share to another

From a logistics point of view, selling a share “among your own” is the simplest option: you don’t have to look for a buyer, and you don’t have to notify all co-owners of your desire to sell your share. That is, if a share is sold externally, the seller is obliged to offer to buy out this share to other co-owners (more on this below). If the owner of the share sells it to one of the co-owners, then the sale does not need to be coordinated with anyone, even if other people also own the apartment.

Separately, it is worth considering the issue of determining the price of the share being sold. As Vlada Pavlova, a real estate specialist at the Link Academy of Sciences, notes, when buying and selling shares between co-owners there is always an interested party. It is it that is forced to agree to the terms of the other party to the transaction. For example, recently the owner of four shares in an apartment worth 3 million rubles bought the fifth share for 1 million rubles, that is, he overpaid by more than one and a half times. Often the opposite situation arises - the owner of a small share, in order to get at least something for it, gives away the share for next to nothing. It happens that for a tenth of the real price.

However, often the most difficult thing in an internal sale is not determining the price, but the fundamental ability to negotiate.

Vlada Pavlova
real estate specialist at Link Academy of Sciences
Case from practice. The apartment is privatized for three – father, mother and child. The parents divorced, the father left the apartment and ended all relations with his ex-wife. Her attempts to buy out her husband’s share did not end in anything. This lasted 8 years! As a result, the woman turned to a realtor. He sent the man a letter: “The wife wants to buy out your share, if you are interested, contact me.” The person agreed to communicate with the realtor. The deal was drawn up so that the former spouses would not meet in person. Since the last share in the apartment was being purchased, the bank agreed to provide a mortgage loan for it. So, even in the bank, when completing the transaction, the ex-spouses - the seller and the buyer - were in different rooms. Nevertheless, the purchase and sale was formalized. I note that the woman was able to buy out the share even without having enough money - with the help of a mortgage.

By the way, if the owner of a small share refuses to sell it to other co-owners, then theoretically it is possible to force him to do so. From Art. 252 of the Civil Code of the Russian Federation it follows that if the owner’s share is insignificant and he does not live in the apartment, then even without his consent the court can order the other co-owners to pay him the cost of the share and take this share for themselves. The same is stated in the Ruling of the Supreme Court of the Russian Federation N 56-В06-17 dated 10.24.06. However, in practice, “forcible” buyout of a share is practically never used.

Method 3. Agree on sharing an apartment

Participants in shared ownership can establish the procedure for using shares among themselves. This, by the way, is the most common scheme. However, in reality it works if there are at least as many rooms in the apartment as there are parties wanting to live in it. If the apartment, for example, is one-room, then either the court gets involved in resolving the conflict, or the co-owners find non-trivial solutions. For example, a shared apartment can be rented out and the income received can be divided in proportion to shares. Or here’s another option - the co-owners agree to live in the apartment in turns, each for, for example, a year.

Lyudmila Plotnikova
lawyer of the Ural Chamber of Real Estate
If dialogue between co-owners does not work out, then you should go to court. He will determine the procedure for using the area, taking into account the real situation of each owner. The calculation will take into account whether each of the co-owners has a different living space, children, dependents, financial situation, etc. If the apartment is one-room, then a decision may be made that the owner of a smaller share with many children who has no other housing has the right to live in it, and the owner of a larger share of the disputed apartment will be “asked” on the basis that he owns other living space.

Lawyers recall cases when the court evicted a co-owner living in it from an apartment and moved in another co-owner. However, if we are talking about an apartment with two or more rooms, then usually the court transfers the rooms to the co-owners for use, focusing on the size of the rooms and shares in the property.

Method 4. Rent a share from a co-owner

This option is a variation of method No. 3. Here the parties also need to agree on joint use. But in the end, the co-owners play different roles.

Natalia Mikhailyukova
lawyer of the Russian Guild of Realtors
If the apartment does not allow all co-owners to use it, then it happens that they agree like this - one co-owner lives in the apartment and gives the other something like rent, calculated based on the size of the shares.

Theoretically, there is also a fifth way to solve the situation with a problematic share, but in practice it is suitable (sometimes) only for private houses, but not for apartments. We are talking about allocating a share in kind. By mutual agreement or by court decision, housing can be physically divided between co-owners. Everyone will receive a part of it for use. But each such part should have not only a living room, but also a kitchen, a bathroom and a separate entrance. It is impossible to organize several entrances, kitchens and bathrooms in a separate apartment. Sometimes this can be done in a private home.

Shared and joint ownership of an apartment

If an apartment has several owners, the right to it is registered in the form of:

Joint ownership.
Shared ownership.

According to the first option, property is always registered in the name of the spouses.

How to sell your share

Important!
Since 2015, transactions with shares require mandatory notarization. Co-owners of shared real estate have a preemptive right to purchase the part of the apartment being sold. Thus, the owner of the share is obliged to inform the co-owners of the intention to put his part up for sale, and also to make them a written offer to purchase, indicating in the document the terms of the transaction and the cost.

Purchase and sale of a share in an apartment: features of the transaction How to sell or buy a share in an apartment, what should be taken into account before proceeding >>If the pre-emptive right is violated, it can be restored in court. According to the law, to go to court, three months are allotted from the moment the violation became known. A statement of claim is also filed in cases where the owner deliberately inflated the cost of the share when notifying the co-owners, and offered a lower price to a third-party buyer.

To avoid problems in the future, the seller must have confirmation that the co-owners have been notified of the upcoming sale of the share. It is enough to get a receipt from them, send a notification via registered mail or use the services of a notary.

Notarization of a real estate transaction: from A to Z >>If within a month there is no response from the co-owners to the notification and they have not expressed a desire to purchase the share, the owner has the right to sell it to anyone.

There is a separate issue with the sale of the share of a minor. To formalize the transaction, written permission from the guardianship authorities will be required. The parent or representative of the child must contact the local administration with an application, and also report to officials where and in what conditions the minor will live. The issue of issuing permission to sell a share is resolved within 15 days from the date of filing the application.

Is it possible to allocate a share in an apartment in kind?

The general conditions for the legal allocation of residential premises are:

having your own bathroom;
the possibility of arranging a kitchen in each autonomous apartment space;
separate exit to the common property of the building or to the street.

Moreover, if it is possible to carry out redevelopment or reconstruction in the apartment to achieve the set goals, then the documents for the relevant work are first drawn up.

However, in most apartments it will not be possible to equip several bathrooms and kitchens under any circumstances. An apartment is an indivisible thing.

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The allocation of a share in kind in an apartment that is not a communal one is not possible either in fact or legally.

This means that it is impossible to divide a two, three, or five-room apartment into several rooms, each of which is assigned a separate cadastral number, which would make it possible to terminate shared ownership and register the rooms as independent elements of civil circulation.

The allocation of a share in kind in an apartment is also impossible in court.

On housing advertisement sites you can often find information about the sale of a room in an apartment. At the same time, it is indicated that it is not a share that is being sold, but a room as an independent object of real estate. In this case, the seller is a little disingenuous - the most that can be done when allocating a share in an apartment that is not a communal one is to determine the procedure for use between shareholders.

Share in an apartment: section

Most often, problems with shared ownership arise as a result of the division of property between heirs or former spouses. People die, get divorced, new families are formed. Instead of the original owners, their heirs appear and conflicts often arise. And a completely ordinary share in the apartment immediately becomes a problematic share in the apartment.

When new owners of a share in an apartment appear, the question immediately arises: “How to use this shared ownership and apartment?” Of course, it’s great when new and old owners of shared ownership agree amicably: they determine compensation for their share in the apartment, sell the apartment together and divide the money, or simply live calmly and peacefully in a shared apartment. It’s a shame, but the heirs often cannot or do not want to come to an agreement. Some owners of a share in an apartment are more arrogant and aggressive; for example, they install a metal door, change the locks and do not let their co-owners in.

So, by the way, they are real raiders, and not those who, even with a grinder in their hands, are trying to get to their property and no matter how they got it, if not legally, then this is a matter for the investigative authorities, not for entrenched and a barricaded neighbor who, as if at a rally, shouts: “Help, save, the raiders are depriving us of property,” while he himself, without a twinge of conscience, uses other people’s property and infringes on the rights guaranteed by the Constitution of the Russian Federation for everyone without exception. What should a party who cannot get into the apartment do if the co-owner, confident in their impunity, prevents his access to the apartment and does not want to enter into dialogue and negotiate? One of the roads, of course, is to court.

Allocation of a share in an apartment by agreement

The only way to allocate a share in an apartment in kind is by signing an agreement on the procedure for use.

It specifies exactly how square meters are distributed between the owners, what is the procedure for using balconies, loggias, storage rooms, etc. The parties usually use common spaces (corridor, kitchen, bathroom) on equal terms.

The agreement may additionally include the following information:

About the procedure for using household appliances located in common areas.
About cleaning common areas and garbage disposal.
About the possibility or impossibility of keeping pets in the apartment.

The inclusion of certain conditions in the agreement is determined by the parties. The document must contain the passport details of the co-owners, their signatures and information about the distribution of rooms between them.

An agreement on the procedure for use is not a document that is subject to mandatory state registration.

In other words, such an agreement is not registered as an independent document, but it may be an annex to the purchase and sale agreement. Accordingly, when determining the order of use, the apartment is not divided into rooms; the subject of turnover is still only a share, with the only difference being that the owners have determined among themselves which room this share is in kind.

The agreement assigns specific rooms to the owners as agreed by the parties. When a compromise cannot be reached, it is necessary to go to court to determine the order of use.

Share in an apartment: you can always agree

Let’s say someone inherited a share in an apartment or received it as a gift, and his co-owners do not allow him into the apartment on his property, shouting through the door that they will only let him in by a court decision. What to do in such a situation?

There are several options: 1. Try to negotiate an agreement with the other apartment owner. 2. Check into the apartment. You can file a claim in court to move in, but most likely the case will be lost.

The court, based on the fact that the share in the apartment is insignificant, will refuse to move in. You can also claim compensation. But the opponent, for example, will declare that he simply does not have money. Then you will need to file a claim for non-obstruction of use, such a case is almost always winning.

.The Constitution of the Russian Federation guarantees the right of a person to use his property. Even if it's just a few square meters.

3. Well, if there is no desire, no strength, no opportunity and you want to forget about all this like a bad dream, of course, you should sell your share in the apartment. Of course, selling a share in an apartment is much more difficult than selling an apartment, and frankly speaking, the share in an apartment will be sold at a considerable discount, but, in any case, it is better than giving it to “neighbors.”

How is the share in an apartment valued? Who buys shares in apartments?

A share in an apartment costs no more than 50% of the price that you could get by selling the entire apartment together.

Disputes when determining the procedure for using an apartment

How to correctly determine the use of an apartment if the shares are equal, but the rooms are of different sizes, or one of the co-owners carried out renovations at his own expense, and because of this he claims the best room? What if the share is so small that it is impossible to give the owner a whole room for use? Or are not all rooms isolated, and no one wants to occupy the hallway?

What is the court guided by in cases of determining the procedure for using an apartment:

The established procedure for use, even if the occupied rooms are not proportional to the size of the shares.
The actual residence of each owner in a given apartment, the availability of other housing for shareholders.
A real opportunity to share property.
The layout of the apartment, the presence of isolated rooms.

Living in an apartment of young children or disabled people can also be taken into account when making a decision by the court. But, if these persons are not shareholders, their interests should not take precedence over the interests of the apartment owners.

Article 252 of the Civil Code of the Russian Federation determines that each owner has the right to demand the allocation of his share. However, if the allocation is not permitted by law, the owner has the right to receive monetary compensation from the co-owners equivalent to the size of the share.

Payment of the cost of a share instead of allocating it in kind is possible:

With the consent of the copyright holder of such share.
Without the consent of the copyright holder, solely by court decision and in cases where the size of the share is insignificant and the owner has no special interest in its use. The court imposes obligations on the remaining owners to pay monetary compensation.

If you have a question about allocating a share or determining the procedure for use, take advantage of a free consultation with a lawyer. Such issues are resolved on an individual basis. Judicial practice is rich in various court decisions, including when the holder of a small share was given the use of an entire apartment.

Sell the entire apartment

The benefit from selling the entire shared apartment at once is much higher than when selling it in parts. The owner loses up to 30% of possible profits, since it is difficult to find a buyer for the share. Such real estate may be of interest only to housing resellers, and they, as a rule, enter into transactions at a low price.

How much does a share in an apartment cost? Transactions with apartment shares have always been difficult and quite confusing. Last year, the rules of the game here were again >> It is in the interests of the share owner to convince the co-owners to sell the entire apartment. In most cases, the room is divided into parts between relatives, and it is unlikely that they will want to intersect with strangers in the kitchen or bathroom. Therefore, the option of a general sale, if necessary, would be the most convenient solution for all parties.

“If the neighbors don’t want a new person or a whole family to move in, especially if no one has lived in the room for a long time, during viewings they put on shows simulating psychopathologies and alcoholism. Stories about bedbugs, mice and other unwanted “neighbors”. People’s imagination in these cases is limitless,” noted Deputy Director Lyudmila Ermolaeva.

There really are enough disputes and conflicts in shared apartments. Relatives or simply neighbors can become bitter enemies due to joint ownership of property. In such cases, it would probably be easier to sell the share to another co-owner. True, he is not always ready to pay. In addition, it also happens that the owner of a small share has to give his share to the co-owner literally for next to nothing, just to solve a pressing housing issue.

By the way, there is a downside. According to Article 252 of the Civil Code of the Russian Federation, the owner of a small share may even be forced to sell it against his will. But this happens in cases where the share is insignificant and the owner does not live in the apartment.

Shares when buying an apartment using maternity capital

The main and necessary condition of the transaction for the purchase of housing with maternity capital is the provision of shares to all family members, including children. The size of the share is determined by the agreement. But more often than not, children are deliberately given minimal shares. The fact is that when buying a home, guardianship authorities are necessarily involved in transactions with minor children. Their purpose is to ensure that the child’s future housing is not inferior to the previous one, but is better. To do this, when cashing out the certificate, children are allocated small shares so that when they possibly purchase the next apartment, it is easier to increase their share.

Allocation of a share in a communal apartment

The owner can register ownership separately for a room in a communal apartment. The cadastral registration will contain information about both the entire apartment and the allocated room (Letter of the Ministry of Economic Development No. OG-D23-5298 dated September 27, 2013).

According to Art. 41, 42 of the Housing Code of the Russian Federation, the owners of rooms in a communal apartment have shared ownership of common areas.

The procedure for registering ownership of a room and common shared ownership of common property in a communal apartment:

Prepare a room allocation agreement signed by all owners.
Order a technical plan for creating a room.
Submit an application to Rosreestr to register a room in the apartment and register the right. The documents must include:

technical plan for the room, and plan of the premises, which is common property;
state duty in the amount of 2000 rubles.

Get the result - an extract from the Unified State Register.

At the same time, the remaining owners of shares in the communal apartment must apply. After all, when one owner is separated, the shares of the others are subject to redistribution and are determined in the agreement. The participation of the remaining co-owners is not necessary only in case of separation by court.

Section on shares of communal apartment

Communal apartments initially implied a shared use of the property, where residents received the right to only part of the living space, as well as a general right to utility rooms (kitchen, corridor, etc.).

The emergence of the opportunity to dispose of rooms in communal apartments as an independent piece of real estate required citizens to allocate their share in common law.

The calculation of the allocated unit is carried out based on the living space of the communal apartment occupied by citizens, while the final share of the co-owner includes the living space that belonged to him before the allocation, as well as part of the total area of such an apartment.

The service how to calculate shares in an apartment calculator will allow you to establish the specific size of the allocated unit by the ratio of the total area of such an object and the living area per individual family.

Registration of ownership of a share in a communal apartment occurs regardless of the rights of other owners and is confirmed by an extract from the Unified State Register of Real Estate.

Let's sum it up

Currently, the allocation of a room in an apartment that is not a communal one, in such a way that one can own the ownership of the room, and not a share in the apartment, is not carried out. Even the courts do not practice making such decisions. An apartment is considered an indivisible thing, according to Art. 133 Civil Code of the Russian Federation.
The alienation of shares in an apartment occurs under an agreement on the procedure for use, in which the rooms in the apartment are distributed among the owners of the shares. The subject of the transaction is legally a share in the apartment.
An agreement on the procedure for using the apartment can be reached by the co-owners by agreement, or it can be established by the court.
It is possible to divide a communal apartment into rooms; each room receives a separate cadastral number, and the owner of the room becomes the holder of a share in the common premises of the communal apartment, and the full owner of his room. The allocation of a room in a communal apartment is carried out either on the basis of an agreement between the owners or by court.