The apartment is not divided in half

How is a privatized apartment divided?

Privatization of a home is the transfer of it into the ownership of citizens from a state or municipal fund. Before this, the basis of residence is a social tenancy agreement. People living in it who have a registration can become owners of an apartment free of charge.

Privatization process

In this case, it is necessary to obtain the consent of those who:

• living in an apartment is considered a member of the family and has reached the age of majority;
• is a resident between the ages of 14 and 18;
• does not occupy the area at the time of privatization, but has the right to do so.

Note! Only those residents who have not previously done this with another living space can give or not give approval for privatization (Article 1.2 of the Law “On Privatization” No. 1541-1 of 07/04/1991).

The apartment can become either the joint property of all its tenants or one of them (even a child can become the owner). If housing is privatized by several persons, their shares are equal. If one of the registered persons refuses the share, it is distributed in equal parts among the remaining owners.

Based on the above, we can conclude that the division of a privatized apartment is a particularly complex procedure if it is owned by several people. When only spouses receive real estate, the issue is resolved more easily, but one subtlety must be taken into account. The division procedure depends on the time of privatization by each of the former spouses:

1. When privatization is carried out during marriage, even if the husband has registered the living space only for himself, it will be considered common property. After a divorce, everyone will get 50%, except in situations where the court awards different shares depending on the situation.
2. If a person became the owner of real estate before the official registration of the marriage relationship, it will belong only to him and is not subject to division.

Consequences of failure

There is a scenario where a husband or wife refuses privatization, and then the second one gets housing at his full disposal. The following follows from this situation:

1. One of the spouses who did not want to become the legal owner of the home is not deprived of the opportunity to live in it throughout his life. This is also true when he is no longer a relative of the owner, including during a divorce. (Law on the introduction of the RF Housing Code No. 189-FZ of December 29, 2004, Art. 19).
2. The question of what will happen to the “refusenik” spouse when the second spouse decides to sell the apartment, pass it on as an inheritance or give it as a gift is difficult to resolve in practice. As a rule, this happens in court. Today, the problem remains open, although there is a Resolution of the Constitutional Court of the Russian Federation dated March 24, 2015 No. 5 on this matter. It notes that the right to live in an apartment can be retained taking into account the life situation.
3. A spouse who has not become a participant in the privatization process can terminate the right to residence if he deregisters or privatizes other housing and receives square meters from the state as a person on the waiting list.

Important! In the case when someone refused privatization once and did not withdraw his refusal, he loses the right to do it again, and, consequently, the right to divide this apartment.

Nuances of dividing non-privatized living space

Non-privatized housing is housing that is owned by either state or local authorities. It has not become private property and is occupied by residents on the basis of a social tenancy agreement. It follows from this that spouses cannot divide premises that do not belong to them. In case of divorce, there are two ways to resolve this housing situation:

1. Privatize an apartment by receiving shares in it.
2. Find an opportunity to exchange it for two non-privatized apartments by concluding two social rental agreements.

If the former spouses cannot agree on the exchange, they will have to go to court.

It must be taken into account that, according to the provisions of Art. 69 of the Housing Code of the Russian Federation, if one of the spouses remains the tenant, the second after the divorce retains the right to live in non-privatized premises.

Division of a non-privatized apartment during divorce

Please note: Division of a non-privatized apartment during a divorce is impossible, since it is municipal property that does not belong to either the husband or the wife.
Consequently, spouses who received housing under a social tenancy agreement have nothing to divide during a divorce. It is only necessary to re-issue the social tenancy agreement. The specific situation is considered with reference to Article 69 of the Housing Code (Part 4). It states that if a person who is not a family member of the tenant of a residential premises under a social tenancy agreement, but lives in it, then this person retains the same rights and obligations as the tenant and members of his family.

Consequently, if spouses are officially divorced, but are registered in the same apartment, each of them has the right to live on these square meters, and each is obliged to pay rent.

How is housing divided if there are children?

How the apartment is divided largely depends on the presence of joint children, and this fact affects the size of the part of the apartment that is subject to allocation.

The party with whom the child remains to live may be given the majority of the property.

This option is only possible if a property dispute arises between the parties and is resolved in court. This is stated in Art. 39 of the RF IC, the provisions of which are designed to provide judges with an instrument for the fair resolution of such cases. In addition, when dividing an apartment by ex-spouses, the following provisions of the RF IC must be taken into account:

1. Art. Article 38 states that things purchased by parents during marriage to provide for the needs of the child are not divided between them upon dissolution of the marriage relationship. Without payment of compensation, they are given to the parent with whom the minor remains to live. This also applies to housing purchased in the child’s name.
2. In accordance with the provisions of Art. 60, if a son or daughter has an interest in real estate, it will continue to remain with them and will not pass to either the father or mother. This reflects the principle of separate ownership of property by children and parents.

Thus, parents cannot divide an apartment or a share belonging to a child under any circumstances.

How to divide apartments if the property is shared

The procedure for dividing property for which shared ownership is registered is prescribed in Art. 252 of the Civil Code of the Russian Federation. From its requirements follows:

• An apartment that is an object of shared ownership can be divided between co-owners by signing an agreement.
• Each of them has the right to demand the allocation of his share.
• If it is not possible to come to a consensus on how housing will be divided, you need to resort to the help of the courts. In this situation, it is permissible to demand the allocation of a share in kind.
• If this is contrary to legal norms or if it results in significant damage to the living space, financial compensation is provided from the co-owners.

When the cost of part of an apartment allocated in kind does not agree with its real price, the difference is eliminated by compensation in cash. It is paid taking into account the owner’s opinion, but if his share is insignificant, the court may order forced compensation. After receiving the money, the right to a share in the real estate is lost.

All of the above fully applies to the division of an apartment during a divorce.

Is an apartment a joint property?

A privatized apartment is joint property if it was acquired during marriage . The Civil Code tells us this and we cannot but agree with it.

On the one hand, you live in a family and make all purchases together, which means that property should also be joint. But what to do if only one person earns money and the property is also shared?

As a rule, a social rental agreement is concluded with a solvent family member.

It is he who then goes through the procedure of registering ownership.

Such a privatized apartment is not joint property. The Housing Code and some other legal acts speak about this.

During a divorce in Russia, a privatized apartment or other jointly acquired property is divided in half .

The process of registration of ownership itself is the registration of an apartment in full ownership, but only one person is involved in this. Thus, a privatized apartment is the property of the citizen who participated in registration of ownership.

If the apartment was privatized during the marriage, but one husband (wife) participated in it, then such a property does not belong to the common property of the spouses .

Read about how to evict a person from a privatized apartment in this article.

Features of the division of cooperative property

According to the provisions of Art. 218 of the Civil Code of the Russian Federation and Art. 129 of the Housing Code of the Russian Federation, a member of a housing and housing-construction cooperative receives ownership of an apartment only if he has paid the share in full. Such housing belongs to both spouses if it was acquired during marriage. During a divorce, the option of dividing property through the court or by a settlement agreement is possible.

If part of the share was contributed by one of the couple before marriage, then the share allocated upon divorce is calculated based on the amount that was paid during the marriage.

One of the options for resolving the issue of dividing cooperative housing would be to transfer the entire living space to one of the spouses for whom a share in the housing cooperative is registered. In this case, the second person must be paid compensation.

In accordance with Art. 31 of the Housing Code of the Russian Federation, if family relations with the owner of the property are terminated, the former relative loses the right to use it. This situation is possible when a share in a cooperative apartment was fully acquired and paid for by one of the spouses before marriage, and it belongs to him on the right of sole ownership (unless the ex-husband and wife have agreed otherwise). However, it must be taken into account that the right to use housing can be retained for some time by a court decision if the absence of:

• grounds for purchasing another home or the right to use square meters;
• material opportunities to buy real estate.

The judge may also take into account other circumstances, depending on the specific situation. For example, it will oblige you to provide your ex-spouse with living quarters at his request if he is entitled to alimony. When the period of temporary use of the living space expires, the ex-spouse must move out of the apartment unless he enters into an agreement with the owner.

Note! If the share payments for the cooperative apartment have not yet been paid, then it is impossible to divide the apartment on the right of shared ownership.

Division through court

When an apartment is privatized by both spouses, but one of them does not agree to the division during a divorce, he can go to court . In this case, two main positions are considered:

• the apartment is not shared, but is in shared ownership - after the divorce process, each participant receives his or her part of the property (when dividing the remaining property, these shares are not taken into account);
• the apartment is jointly owned - divided equally between the spouses, however, based on the results of court proceedings, one part can be increased (the reasons may be different: the presence of small children, low income of the parent, and others).

Also, by a court decision, the apartment may go to one of the spouses with the need to pay monetary compensation to the other party.

Please note that standard apartments are not subject to division in kind. That is, even when dividing a two-room apartment of a small area, it will be difficult for a husband and wife to arrange living together. Exceptions are cases when the property is large and this can be arranged after redevelopment.

How to divide office housing

In accordance with Art. 92 of the Housing Code of the Russian Federation, service residential premises belong to the specialized housing stock and belong to the state or municipality. They cannot be alienated or leased. As a rule, they are transferred to employees of a particular institution for living in accordance with a social tenancy agreement.

When an employer resigns, the contract with him is subject to termination, and he and his family members are subject to eviction. When the marital relationship ends, the former spouse who is not an employee of the lessor loses the right of residence. But, as in previously described cases, there may be exceptions.

If the former spouses cannot agree, the one who remains homeless may try to sue for his rights to office space. For example, the ex-wife of a military man who followed him to a distant garrison often finds herself in a difficult situation. The court may accommodate her by providing the opportunity to live, especially if she has a common minor child.

Important! Service housing cannot be divided between a former married couple during a divorce, since it is not their property. It is only possible to reserve the right to live with a spouse who is not a tenant in need of housing.

Is it possible to share?

To say for sure whether a privatized apartment is divided during a divorce, you need to consider different situations.

When is division possible?

The division of a privatized apartment after a divorce is possible in some cases. True, these cases are quite rare.

For example, if a spouse who did not take part in the registration proves that expensive repairs were made with his money or he is the direct guardian of children who live in privatized housing.

In such cases, it is permissible to divide a privatized apartment into equal parts .

When is it impossible?

It is impossible to divide when the apartment is privatized for one of the spouses and in the absence of children or when they reach the age of eighteen years, and also if during the divorce the other party also received property, for example, other real estate.

In this case, if the husband privatized the apartment for himself during marriage, it remains with him - the owner of the property.

Also, if it is proven that during the renovation and use of the privatized residential premises one of the spouses did not make any contribution at all, then the apartment will also go to the person privatizing it.

Privatization of a service apartment is possible only through the court, find out what the procedure is. How to go through the procedure for privatizing an apartment at the MFC or through State Services, read here.

A complete list of documents for privatization of an apartment can be found at the link. Here you will find out where to get them.

Methods for dividing living space

The division of the common property of the spouses is regulated by Art. 38 RF IC. During a divorce, they can agree and resolve the housing issue amicably or go to court.

There are two options for a peaceful solution:

1. Conclusion of a marriage contract, according to which the apartment can be divided both during the marriage and after its dissolution.
2. Signing an agreement on the division of an apartment during a divorce.

In this case, the shares can be any, as long as it does not contradict the interests of any of the parties. Like a marriage contract, an agreement on the division of real estate acquired during marriage is certified by a notary.

If the former spouses decide to go to court, they need to write a statement of claim that meets the requirements of Art. 131 Code of Civil Procedure of the Russian Federation. Attached to the claim:

• Marriage certificate;
• divorce certificates;
• documents on ownership of the apartment that is the subject of the dispute;
• documents on the value of real estate;
• confirmation of payment of state duty.

The amount of the fee is determined based on the price of the claim, if the court has not previously considered the dispute over the plaintiff’s ownership of this apartment. Otherwise, the amount payable in accordance with Art. Art. 333.19 and 333.20 of the Tax Code of the Russian Federation, equal to 330 rubles.

Note! The claim is filed at the location of the property, the right to which is being disputed. The statute of limitations is three years and begins to count not from the date of divorce, but from the day when the plaintiff became aware of the violation of his rights (Article 200 of the Civil Code of the Russian Federation).

From the above it follows that it is impossible to divide an apartment for which there is no ownership right:

• non-privatized;
• official;
• cooperative, for which the share has not been paid;
• belonging to the child.

Also, housing that is the property of the spouse, which was registered before marriage, is not subject to division.

An example from judicial practice

An interesting example is in which the judge decided to change the share of real estate recorded in the marriage contract. Citizen Z.A. went to court with a demand from the defendant, Z.V.’s ex-husband, to terminate the marriage contract, according to which, after the divorce, she was entitled to 1/3, and her husband – 2/3, of the share in the apartment.

Since during the marriage two children were born into the family who were under the age of majority at the time of the divorce and who remained to live with their mother, Z.A. asked to be awarded 2/3 of the share. Since the mother did not have any other housing and the opportunity to purchase it, in order to preserve the children’s previous living conditions, the court met her halfway, redistributing the shares in accordance with the plaintiff’s requirements.