How to divide an unfinished house during a divorce?

When partition is not possible

Current legislation, namely the Family Code, states that both spouses have equal rights to real estate that was acquired after entering into an official marriage. The following cases are considered exceptions:

• a house or apartment received as a gift before marriage is not subject to division;
• real estate is not considered as the subject of division even if it is received in the form of an inheritance before marriage;
• documentary evidence of the absence of financial investments of one of the spouses in the purchase of the subject of the dispute without a compelling reason.

Judicial practice has examples of the assignment of real estate in favor of the parent with whom the child lives after a divorce.

In all other cases, any real estate acquired during family life is subject to division.

How is property divided?

The Family Code of the Russian Federation establishes equal rights of spouses in relation to property acquired after the official registration of relations with the civil registry office (Article 34 of the RF IC).

The only exception can be property that was transferred to one of the spouses before marriage, was donated (there is an act of donation) or it was inherited.

In judicial practice, there are cases of deviation from the general provisions of the RF IC in favor of parent-guardians of minor children.

In situations where it is possible to prove the absence of financial investments in the purchase of real estate during marriage without good reason.

How to share?

The simplest and, in fact, the only way to get the required part of the property is to come to mutual agreement regarding the object of interest.

It is important that this fact is officially recorded by a notary. Some people expect that the court will help them divide unregistered property.

However, this opinion is erroneous. The fact is that the government body simply will not consider the issue of dividing legally non-existent property.

In this situation, he simply has nothing to focus on. Therefore, you need to go to court only after the fact of ownership of the property has been reflected in the registers. And for this you need to go through the registration procedure.

It is necessary to take into account that property will be subject to division only if it was registered at the time the spouses were legally married.

Legal status and features of the division of an unfinished house

According to the current legislation of the Russian Federation, an unfinished real estate property is considered as:

1. Materials and costs. This definition is assigned to a construction project that is at the stage of creating a project and purchasing materials. This indicates a complete lack of documentation confirming the fact that construction relates to the housing stock.
2. Construction of a certain degree of readiness. This status is assigned only if there are permits proving that it belongs to the category of residential buildings.

The status of an unfinished residential property can be obtained by a house in which all work has been completed, but it has not gone through the paperwork procedure. In this situation, you need to understand how to properly divide an unfinished house during a divorce. The judicial body appoints a number of expert events that will determine the status of the object of the dispute. The result of such an examination reveals not only the degree of readiness of the house for commissioning, the range of work necessary to complete the construction of the house after a divorce, but also the possibility of an actual division between husband and wife.

How to divide unfinished property during a divorce

The division of property is the main problem of spouses during a divorce. Recently, the case of unfinished construction was considered in the Supreme Court, writes Rossiyskaya Gazeta. Neither the right of ownership nor a cadastral passport was issued for the house, so the local courts rejected the plaintiff. She went to the Supreme Court to seek help.

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• Now, during a divorce, spouses will be able to divide an unfinished house
• Section of an unregistered house
• Land news
• Need to share
• How to divide an unfinished house during a divorce?
• Unfinished construction can be divided in case of divorce
• How to divide property that has not yet been officially registered during a divorce?

Now, during a divorce, spouses will be able to divide an unfinished house

Until recently, spouses who decided to divorce and divide jointly acquired property did not have the opportunity to divide an unfinished construction project - be it a house, a garage, an outbuilding or any other building or structure. The reason is trivial - the imperfection of Russian legislation: the family could not obtain either a cadastral passport or ownership rights for an unfinished construction project.

It would seem that the problem is of a private nature, because not all disintegrating families have unfinished real estate, and even fewer are trying to divide them in court.

It’s good, of course, when the main unit of the state - the family - is strong and stable, but the objective reality is that the divorce curve in Russia has been showing constant growth for several years now.

The problem was solved by the filing of one persistent Russian woman by the Supreme Court of the Russian Federation, or more precisely, its judicial panel for civil cases, which issued a ruling on a private dispute surrounding the division of an unfinished house between divorcing spouses.

When the lower courts, for the reasons stated above, denied her ownership of part of the unfinished house, the citizen appealed to the Supreme Court. Firstly, the RF Armed Forces explained, the Family Code states: everything that was acquired by a husband and wife during marriage is certainly joint property, and if the spouses divorce, it is divided equally. Secondly, referring to the Civil Code, the highest court indicated that Art. In order for an unfinished property to become the object of division during a divorce, the spouses must apply to the court at their place of residence.

The court will determine that such an object actually exists and will issue a ruling on registration of ownership rights to it. The local body of Rosreestr will only have to obey this decision and register the unfinished property.

The spouses can only include it in the list of property that they intend to divide during a divorce, and the court will make an appropriate decision. The law must be clear. Forgot your password? User Lawyer Company Do you need legal support? I agree with the terms of service and unconditionally accept the rules of the portal. Do you have a legal education? Do you represent a law firm? Login as user.

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Section of an unregistered house

During the marriage, land was acquired and registered in the husband's name. We built a house on this land, but we have not yet registered it. In case of divorce and division of property, will the house be divided or does it need to be registered?

A new single-family house was built on the site of a two-flat house. After the divorce, this house was divided and now the former spouses live through the wall.

Such sections in divorces are a dime a dozen in our courts. They walk hard and for a long time. And most importantly, numerous judicial divisions of jointly acquired property do not always suit the former spouses. In our case, the plaintiff went to the Supreme Court because she did not agree with the decision of the local courts.

Land news

In this case, two issues need to be considered. Will an unfinished house be subject to division as joint property? There are several views on this issue. Some experts, based mainly on Art. Supporters of this position do not consider an unfinished house unless it is registered as an object of unfinished construction as a real estate object, and accordingly it cannot be the object of civil rights.

Although here we can note the position of the court, which recognized the ownership of a share in an unfinished house precisely on the fact that the unfinished house is not a piece of real estate, and therefore the fact of registration has no significance, see the Resolution of the Presidium of the Moscow Regional Court from Others, on the contrary, believe , that the main thing when dividing an unfinished house is to establish whether, taking into account the stage of its construction and design features, it is a divisible thing.

Source of money

Funds for building a house can be divided into the following categories:

• personal;
• joint;
• credit

Real estate is said to be built with personal funds if the source is:

• money received by inheritance;
• savings accumulated by one of the spouses before the official marriage;
• money received as a gift.

If the fact of using personal funds to build a house is proven, it will not be considered as the subject of division.

If joint funds are used, both spouses have the same right to the unfinished house. You need to understand that in the event of long-term illness, temporary incapacity, or maternity leave of one of the spouses, the court does not deprive him of the right to receive an equal share of real estate.

The use of borrowed funds allows for the division of the building, but in this case the loan debt is also divided between the husband and wife.

Is it possible to divide an unfinished house during a divorce?

The possibility of dividing an unfinished house is determined by several factors:

• the source of funds for which the building was purchased or erected;
• degree of readiness of the object;
• availability of documents for property;
• possibility of technical and actual allocation of shares.

Analysis of these factors will allow us to divide an unfinished house and take into account all the nuances of this process.

Source of funds

The source of funds for which the building was purchased can be personal, joint, borrowed and government funds.

A house is considered to be built with personal funds if the following were used in its construction:

• inherited money;
• savings collected before marriage registration;
• donated money.

If the source of funds is recognized as personal, then such a house will not be divided between the spouses.

When using joint funds, the house is subject to division equally if both spouses can confirm their share (costs).

Important! If the husband or wife could not invest money in construction due to illness, temporary disability, lack of income due to child care or housekeeping, etc. – the court also recognizes their right to property.

When purchasing with borrowed funds, division is also possible, but the second spouse may demand division of the joint debt.

This may be a joint payment of loan funds or a refund of part of the money already paid for construction. Including for the purchase of building materials, hiring workers, etc.

The last option is to purchase with public funds, in particular, maternity capital. In this case, the unfinished house, even before the completion of work, is divided by law between parents and their children into shares.

It is impossible to deprive any of the parents of a share; only redemption by mutual consent is permissible. For more information about the division of real estate acquired with maternity capital funds, read this article.

Readiness degree

This characteristic directly affects how an unfinished house will be defined : materials/expenses or a property of a certain degree of readiness.

In this situation, in the absence of documents confirming the status of construction, the court appoints an independent examination.

The main task of the examination is to establish the real state of the building, as well as to establish the scope of work for its completion, including its cost and timing.

Availability of documents for the house

The main document that proves in court the legal status of an unfinished house is a cadastral passport.

The absence of papers on the assignment of a cadastral number actually deprives the building of the status of property and makes it difficult to divide it according to the norms of the current legislation.

In addition, ownership of a house can also be registered as an unfinished object, but such registration is most often carried out for the sale of the object.

If there is no cadastral passport, then the property rights of the spouses and the fact of investing joint funds in an unfinished house will be confirmed:

• documents for the land plot (registration certificate, purchase and sale agreement, municipal resolution on the allocation of the plot);
• building permit from the municipality;
• construction contracts, receipts for the purchase of building materials, acceptance certificates for completed work.

There are precedents in the judicial practice of the Russian Federation when a Supreme Court judge sent a case on the division of an unregistered house for review, since he did not consider the lack of a cadastral number to be a reason for its division, even if there was an actual possibility of allocating shares.

In cases where such a technical possibility does not exist, regional courts have more than once defined construction as materials/expenses.

It is important to take into account paragraph 30 of the resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 10/22. “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” (dated April 29, 2010), the absence of a cadastral passport is not defined as an obstacle to including a specific unfinished construction project in the list of jointly acquired property.

As a result, the property rights of both spouses are recognized. The only obstacle to division may be the lack of technical ability to allocate shares.

Possibility of actual allocation of shares

The technical ability to allocate shares is the main condition for the actual division of this type of property.

If it is impossible to fulfill it, the court will award monetary compensation to the spouse for the alienation of part of the building in favor of the other.

The possibility or impossibility of dividing an unfinished house is determined on the basis of the conclusion of a construction and technical examination.

Experts, having established the possibility of dividing a house, reflect in their conclusion all possible options for dividing and the work necessary for this:

• the amount of construction work required for the actual division;
• arrangement of separate exits, isolation of rooms;
• summing up communications.

Readiness degree

Complete or partial absence of documents officially assigning the house the status of real estate, the court will order an examination. It will determine the exact degree of readiness of the building for commissioning or establish whether the house belongs to the category of materials and costs.

Based on the results obtained, the process follows 2 options:

1. The examination showed that the unfinished house has the official status of real estate. This indicates that several operations must be carried out before the house is put into operation. In this case, the building is subject to equal division.
2. As a result of the examination, it was established that the construction is at the stage of design and procurement of materials. In this situation, actual partition is not possible. The set of purchased building materials goes to one of the spouses, the owner of the land plot. The second party receives compensation equal to half the money spent in purchasing construction materials and paying for the project.

Availability of a package of documents for real estate

The main documents confirming the status of real estate include a cadastral passport. Its absence significantly complicates the process of division within the legal framework. In this case, the right to a share, as well as the fact of investing funds, must have the following confirmation:

• papers confirming ownership of a plot of land;
• permission to carry out construction on this site;
• agreement with a construction company;
• cash receipts confirming the cost of purchased materials.

There are examples when the court does not consider the lack of documents for an unfinished house as the main reason for refusing division, if the allocation of shares is possible. Such a case will be sent for revision.

Possibility of allocating shares

The presence of conditions for the physical allocation of shares is called the main requirement when performing the actual division of real estate. The absence of such conditions gives grounds for the judicial authority to award one of the spouses monetary compensation equal to the size of the share.

The examination, which has revealed the possibility of division in kind, provides a conclusion in text format indicating all possible ways of allocating shares, as well as measures for their implementation:

• the work required to complete the actual section;
• home refurbishment;
• conducting communications.

Only on the basis of the results of the construction and technical examination does the court order the allocation of shares.

Methods for dividing an unfinished house

The division of an unfinished house during a divorce procedure is possible by agreement of the spouses or with the help of the court.

In the first case, a certain agreement must be reached between the husband and wife, according to which the interests of both parties are taken into account. The inability to sign such an agreement gives grounds for going to court.

The allocation of equal shares is possible only if it is assigned the status of unfinished construction, regardless of the degree of its readiness. During the division, it is necessary to act within the legal framework.

The nuances of dividing an unfinished house depending on various factors

As with the division of any other property, the division of an unfinished house occurs in several options depending on various factors, namely:

• from the source of funds invested in the construction of the house;
• on how ready the property is for use;
• on the presence or absence of permits for the house;
• on the extent to which both actual and technical allocation of shares in real estate is possible.

Let's analyze all the nuances and consider how each of them will affect the possibilities of dividing an unfinished house.

Source of funds for building a house

Funds can come from several sources:

Construction can be carried out either with the involvement of one of the above-mentioned sources, or with a combination of several in various variations, for example, using joint funds and adding borrowed funds, or using personal funds and adding joint and borrowed funds. A house built with joint funds is subject to division in equal shares.

For example, Irina D., shortly after her marriage to Konstantin D., was in a car accident, received serious injuries, and was unable to work for a long time, being dependent on her husband. During this period, the family built a house on a plot of land given to them by Konstantin's parents. Five years after the marriage, the family broke up, by this time the house was almost completed, all that remained was to draw up the title documents.

Konstantin was categorically against dividing the house, citing the fact that Irina did not actually take part in the construction of the house and did not invest in it, since she lived at the expense of her husband.

Irina filed a statement of claim in court with a request to divide the house equally between her and her ex-husband. The court, having considered all the materials of the case and taking into account Irina’s severe injuries, issued a verdict - to actually divide the house equally between the plaintiff and the defendant, allocating half of the house and half of the land to the plaintiff.