What is shared privatization of an apartment? This is a procedure that involves allocating an equal share in the residential premises to each of the residents living in it. The possibility of shared privatization eliminates the need to divide property in court, for example, in the event of a divorce, and also avoids many disputes and conflicts associated with civil transactions (purchase and sale, donation, etc.). In this case, you just need to notify the other apartment owners about the conclusion of the transaction, and you don’t have to get their consent. However, it is worth noting that all co-owners of the apartment have a pre-emptive right to purchase your share, and only if they refuse can you sell the share in the apartment to another person.
Important! If the owner of the share does not notify other owners of the conclusion of the transaction, the latter have the right to declare the transaction invalid in court.
Shared privatization of an apartment provides for the transfer of municipal property into the ownership of the tenant if he lives with his family in this premises under the terms of a social tenancy agreement. Shareholders have the right to count either on the sale of their share or on compensation, which is possible only with the consent of the person who wants to receive their share. However, if the owner’s share is insignificant, cannot be separated and he does not have a significant interest in the use of the common property, then the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation. Upon receipt of compensation, the owner loses the right to a share in the common property.
Types of housing ownership: shared privatization
Home ownership can be of two types:
- Private property (common, individual) . The procedure for privatizing an apartment into private ownership presupposes the ownership of certain real estate by a specific person. It can be the property of one owner (individual), an individual or legal entity, or two or more persons (common). Common property includes, for example, residential premises that are the property of the state or municipality. Community property provides for the division of property into equal shares, for example, if we are talking about the property of spouses who bought real estate during marriage (Article 256 of the Civil Code of the Russian Federation).
- Joint ownership (common or shared). This type of property includes common property that does not involve division into shares. As a rule, joint ownership arises, for example, when spouses purchase and privatize an apartment. If a family lives in an apartment that is legally a shared property, it is permitted to own and use such housing with the consent of all co-owners; in the absence of such consent, the right to use real estate can be obtained in court.
In the case of shared privatization, the division of the apartment is carried out in equal shares, taking into account the interests of all participants, including the interests of minor children. The allocation of the child's share in the privatization of the apartment is a mandatory condition, violation of which will entail an unconditional refusal to issue the appropriate permit by the guardianship and trusteeship authorities and, accordingly, further refusal to privatize. If one of the family members refuses to take part in the shared privatization of the apartment, the person who refused must submit a relevant document certified by a notary. Next, the share of the person who refused will be divided among the rest of the family members. A person who has previously taken part in the privatization of an apartment must submit documents confirming this fact.
At the time of death, joint property is transformed into shared property.
Property law, News 2002
On November 26, 2002, further amendments were made to the Federal Law “On the Privatization of Housing Stock in the Russian Federation” (hereinafter referred to as the Privatization Law). The adopted norms, in fact, develop the provisions of the Federal Law of May 15, 2001, which prohibited the privatization of residential premises into the common joint property of the persons living in it (this law has already been analyzed on our website). Now, the previously created common joint ownership of residential premises at the time of the death of one of the co-owners is transformed into shared ownership.
The main prerequisite for the adoption of the Law of May 15, 2001 was a significant increase in the amount of payments for the maintenance of residential premises, which may not yet have occurred in full, but in any case will occur in the coming years. In such conditions, a mechanism was required for the fair distribution of relevant expenses between co-owners. The legislator proceeded from the fact that the institution of shared rather than joint ownership is more acceptable in this sense.
The displacement of relations of joint ownership of residential premises by relations of shared ownership was expressed in a number of innovations in the Privatization Law that appeared in 2001. Let us briefly recall them.
According to the new version of Art. 2 of the Law on Privatization, the privatized premises are transferred to the common ownership of the persons living together. This wording, although it does not contain a direct prohibition on the privatization of residential premises into joint ownership, nevertheless implies it.
Based on clause 2 of Art. 244 of the Civil Code, common ownership of property is shared, except for cases where the law provides for the formation of joint ownership of this property. Since the corresponding instruction has been excluded from the Law on Privatization, further privatization of residential premises can only be carried out in the shared ownership of jointly living persons.
At the same time, the newly introduced rule is not given retroactive effect. Thus, the legal regime of residential premises privatized into joint ownership before the amendments to the Privatization Law came into force remains the same.
The point of the innovation in the Privatization Law is to clearly distribute among the co-owners the responsibilities arising from the use of residential premises, which, in essence, boil down to paying the costs of its maintenance. The legal criterion for solving this problem can be the size of the shares of co-owners. If the shares are not determined, as is the case with joint ownership, there is no criterion for the distribution of expenses.
In practice, the privatization of residential premises, as a rule, involves not only spouses, but also their parents, children, etc. The more diverse the contingent involved in joint ownership, the stronger the tangle of contradictions. It is difficult to predict what the relationship will be like, for example, between mother-in-law and son-in-law, or parents and adult children living separately from them, if one of them wants to distribute the costs of maintaining a jointly privatized premises. Obviously, such disputes can drag on for many months.
As long as the relevant expenses are a relatively small amount, disagreements between co-owners will rarely go beyond a domestic conflict. However, as tariffs for housing and communal services increase, contradictions between co-owners may develop into a serious problem that must be resolved in court. In this regard, the legislator's actions are aimed at forestalling possible legal proceedings.
The advantage of shared ownership of residential premises over joint ownership lies in one more fundamental point. A participant in shared ownership, without any additional conditions, can sell his share to other co-owners or third parties. At the same time, with joint ownership, a similar procedure must be preceded by an agreement on the determination of shares, the conclusion of which can become a stumbling block and delay the process of alienation of the share indefinitely.
Finally, with shared ownership, the inheritance procedure after a deceased co-owner is significantly simplified, since in this case, unlike joint ownership, his share in the common property is predetermined.
This circumstance served as the reason for the adoption of new additions to the Privatization Law on November 26, 2002.
According to Art. 3.1 of the Law on Privatization, in the event of the death of one of the participants in joint ownership of a residential premises privatized before May 31, 2001, the shares of the participants in the common ownership of this residential premises are determined, including the share of the deceased. In this case, the specified shares in the right of common ownership of this residential premises are recognized as equal.
This means that the death of one of the participants in joint ownership automatically entails the transformation of joint ownership into shared ownership.
However, even earlier, in the event of the death of one of the co-owners, joint property turned into shared property. However, this did not happen automatically, but on the basis of an agreement on the determination of shares, which was concluded between the heirs of the deceased co-owner and other co-owners. This agreement was required for the issuance of a certificate of inheritance and was concluded in the presence of the notary who executed it. If agreement was not reached between the heirs and other co-owners, the dispute was resolved in court.
With the adoption of the norm of Art. 3.1 of the Law on Privatization, the procedure for registering the rights of heirs to their share in joint property has been significantly simplified. Now shares in the right of common ownership of residential premises privatized into joint ownership are imperatively recognized as equal. Thus, there was no longer any need to conclude an agreement on determining shares.
True, in a number of cases the new design infringes on the rights of co-owners. At one time, many communal apartments came into joint ownership, where former tenants, and now owners, occupied living space of varying sizes. If these apartments were privatized into shared ownership, then no problems arose either then or now. The size of the occupied rooms was taken into account when determining the size of shares in common property.
In joint ownership, where the shares were not initially determined, this fact was reflected later: in agreements on the determination of shares concluded between co-owners, as well as in the resolution of legal disputes related to the determination of shares in joint ownership. As a result, the rights of co-owners were not affected in any way.
Now, in the event of the death of one of the co-owners, the other co-owners risk receiving a much smaller share of the common property right than what they could previously claim. For example, a communal apartment was privatized into the joint ownership of two tenants, one of whom occupied a room of 20 square meters. m., and the second - 10 sq.m. The person occupying the smaller room dies. Under such conditions, the other co-owner receives a share of ownership in the amount of one-half (½) instead of a share of two-thirds (2/3), which he could count on before the Federal Law of November 26, 2002 came into force.
In such circumstances, participants in joint ownership who claim a larger share than other co-owners can protect their interests in only two ways: without waiting for the death of one of the owners, enter into an agreement on the determination of shares with other co-owners, or file a corresponding claim in court.
It is not entirely clear for what purpose Art. 3.1 of the Law on Privatization contains an indication of the date of privatization into joint ownership of residential premises (until May 31, 2001), the inheritance of which is carried out according to the new rules. Perhaps the legislator proceeded from the fact that from May 31, 2001 (the date of entry into force of amendments to the Privatization Law of May 15, 2001) residential premises are not subject to privatization into joint ownership. Consequently, for residential premises privatized after May 31, 2001, the provisions of Art. 3.1 of the Law on Privatization is not relevant in any case. However, if this is so, then the failure to indicate the date (31 May 2001) would not have any legal consequences. On the contrary, its presence raises unnecessary questions and misunderstandings.
- December 10, 2002 at 5:47 pm
- 5818
- Drozdov Igor Alexandrovich
Privatization of a share in an apartment through the court
Privatization of a shared ownership apartment is possible through the courts. However, first of all, it is necessary to allocate equal shares for each family member, then contact a notary with an application for the allocation of shares with the provision of an apartment privatization agreement. If an agreement between family members could not be reached (for example, if we are talking about the privatization of the share of a deceased family member in an apartment), the procedure for allocating a share in the apartment provides for this action to be carried out through the court, where a statement of claim is filed with the provision of a package of documents:
- title documents for the apartment (purchase and sale agreement, if the apartment was purchased, act of acceptance of the transfer of real estate; gift agreement; will);
- extract from the house register;
- cadastral passport of a residential premises (from the BTI);
- receipt of payment of state duty.
The period for consideration of a claim for privatization of a shared ownership apartment is one month. Then, based on the decision made on privatization and the procedure for using the residential premises, family members need to contact the housing management company to carry out the procedure for dividing utility bills by the number of people living in the apartment.
Refusal of a share when privatizing an apartment
There are two main ways to refuse a share when privatizing an apartment:
- Using a gift agreement;
- Non-participation in privatization.
One of the most common ways to give up your share is to give it to other participants. To complete such a procedure, the consent of the person to whom the donated part of the property will be transferred is required, i.e. donee, while consent from other homeowners is not required.
The share donation agreement itself must be drawn up in writing, which must
certified by a notary
(
clause 1 art. 42
Federal Law of July 13, 2015 No. 218-FZ
“On state registration of real estate”
).
After completing the donation agreement and paying the state fee, the transfer of rights should be registered in Rosreestr. If the donor was married at the time of acquisition of property rights, it is necessary to present a notarized consent of the spouse.
You can give up part of your home ownership even at the stage of preparation for privatization. To do this, the person must obtain consent to privatize the apartment without his participation. Such a document is certified by a notary and is included in the package of documents required for privatization.
It is worth noting that it is impossible to renounce your share in favor of a specific person who lives in the apartment. The share of the person who refused it will be distributed among all persons who participate in privatization. The share can be changed only on the basis of an agreement on the determination of shares.
Registration may be refused if one of the owners does not meet the conditions necessary to carry out the registration procedure. These include:
- non-payment of tax;
- lack of documents;
- an incorrectly drawn up application or paper;
lack of consent of the spouse or owner;- lack of response to the sent request due to the irrelevance of the provided papers;
- forgery of documents.
Shared privatization of an apartment: advantages and disadvantages
Shared privatization of an apartment has a number of main advantages, including the transfer of the residential premises into your private property, which subsequently gives you the right to dispose of shares at your own discretion, in particular: sell, donate, transfer by inheritance according to a will, rent out. In addition, having a privatized share in an apartment makes it possible to obtain a loan secured by real estate. If we talk about the disadvantages of shared privatization, it is worth noting that this procedure will not be particularly profitable and convenient for single and elderly people, since privatization of a share in an apartment involves paying real estate taxes and housing and communal services. In addition, privatization of a share in an apartment can become a source of disputes and conflicts between family members, which can only be resolved in court.
Shared privatization: check out from the apartment
In judicial practice, questions often arise that require detailed clarification. For example:
- Extract of a citizen from a privatized apartment. In accordance with the Federal Law “On Privatization,” a citizen discharged from a privatized apartment does not lose ownership of the share. In fact, the citizen is a co-owner of the apartment, so he can only be discharged at his own request or through the court.
- In the event of the death of the owner of the share. To resolve this issue, first of all, the heirs must contact a notary to open an inheritance case. In the event of the death of the owner of the apartment before privatization, it is necessary to apply to the court with a statement of claim for recognition of ownership rights through inheritance. Shared use of the apartment will only be possible if all co-owners sign an agreement.
Obtaining a certificate of inheritance and further registration of ownership of the inherited property, in particular a share in an apartment, is possible after six months after the death of the testator.
How to sell an apartment privatized for two?
Do you want to sell a property, but don’t know what to do if the apartment is privatized for two?
A citizen who is a co-owner of the premises has the right to freely dispose of his part of the property (sell a share of housing, bequeath it, donate it, etc.). However, in doing so, he must not violate the rights and interests of other co-owners.
In such a situation, you have 2 options:
- agree with the second owner of ½ of the apartment and sell the property as a whole (finances received as a result of the transaction will be divided between the sellers in those parts that correspond to the size of their shares of the property);
- find a buyer (third party) and notify the co-owner of the residential premises about the sale of a share of the property (notification of the owner is mandatory by law, since he has the pre-emptive right to purchase the share of the apartment).
In the latter case, it is necessary to focus on the behavior of the co-owner of the property. The notification is issued in writing and sent to the owner of the second share of the premises by mail (the notification can also be delivered in person).
A citizen has one calendar month to purchase part of the housing put up for sale. In this case, the co-owner has the right to buy it back at the same price that was offered to a third party.
If the co-owner of the apartment refused to purchase the second share, the seller has legal grounds to enter into a purchase and sale agreement with a third party (potential buyer). The same applies to the situation if the co-owner of the property has not responded to the notice after a month has passed from the moment it was sent.
