Home » Housing disputes » How to transfer joint property into shared ownership or vice versa
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Common joint and shared ownership differ from each other in a number of parameters; more details about this are written here. In some cases, it becomes necessary to change one type of property to another (for example, during a divorce or, conversely, marriage). Let's take a closer look at how this can be done and what needs to be taken into account.
What is common shared ownership of an apartment?
The Civil Code defines two types of joint ownership of residential premises:
- shared ownership, when each owner is allocated a specific share in the right to an apartment;
- joint ownership without allocation of shares.
The common ownership of the apartment is shared, except for the property of the spouses acquired during marriage (unless a marriage contract has been drawn up). Such property is joint property between husband and wife.
Shares of one residential property can be owned by any citizen, regardless of whether they are related or not. Therefore, in order to avoid conflict situations that may arise during the use or alienation of your share in the property, it is better not to spoil relations with the owners of other shares in the apartment. Then it will be much easier to dispose of your property and, if necessary, obtain permission from other shareholders.
Shares in common shared ownership may be allocated by agreement of all participants or by force of law. By default they are considered equal. But all owners can discuss their contribution to the formation of this property and correlate it with each person’s share. Only a written agreement of all participants confirms their agreement with the decision. When making changes to an apartment in the form of major repairs or replacing plumbing, for example, you can count on a revision of the share, and also with the consent of the others.
For example: four owners share common ownership of an apartment with an area of 100 square meters.
However, it is not a fact that each of them has exactly a quarter of the share. This means that a share in the right does not make it possible to dispose of ¼ of the common property individually, if it is not allocated in kind. But, if circumstances arise, all owners can discuss the issue of allocating a specific share to each and it is not a fact that they will be equal.
Tax deduction for personal income tax
Since 2014, for an apartment purchased in joint ownership, each co-owner can receive a personal income tax deduction in the amount of 13% from the amount of 2,000,000 rubles.
When a property is purchased with a mortgage loan, the owners also have the right to recover income taxes on the interest paid on the loan. The amount of interest paid is limited for deduction to the amount of 3,000,000 rubles.
You can apply for a tax deduction for the purchase of several residential premises, provided that their total cost does not exceed 2,000,000 rubles.
Rights of share owners
Legislatively, the rights of owners to a shared apartment are enshrined in Article 209 of the Civil Code. Let us list them and focus on individual issues.
Each owner of an apartment in common ownership has the right to:
- own property belonging to him by right of ownership;
- dispose, including carry out transactions for sale, exchange or rental;
- exploit your property.
However, only its sole owner can fully and solely dispose of his property without approval. Common ownership implies several participants whose rights cannot be violated. Therefore, the listed actions can only be performed with the consent of the remaining owners. A negative decision by one of them will lead to the fact that actions regarding common property will be considered unlawful.
It is often easier to find a compromise than to resolve the case in court. But it is not always possible to maintain normal relationships; conflicts here are frequent and sometimes difficult to resolve.
If the rights of any of the owners are violated, he can go to court, which will help resolve the situation. At the same time, his legal right to demand a part of the property equal to his share, to provide ownership for disposal and operation. In the absence of such an opportunity, he may demand a monetary payment from the remaining owners of the common property in an amount proportional to the value of his share.
According to the principle of freedom of agreement, the court cannot oblige other owners of shares in the apartment to give their consent to the alienation or rental of the declared part. This is a coercive measure that is contrary to principle. Therefore, the parties must still come to a common decision and agreement.
If shares of property are allocated in kind, then the owner of his part of the apartment can fully dispose of it without coordinating his actions with other shared owners. But they have a pre-emptive right to repurchase if the share is sold.
Renting out common property brings in some income. It must be distributed among the apartment owners in equal shares.
Taxation
Gifts between close relatives, to whom the spouse belongs, are not taxed on the income received. Therefore, personal income tax is not calculated and is not subject to payment to the budget.
But the owner of the property becomes the sole payer of the corresponding tax. It is calculated by the tax authority at a rate approved by the regional authorities. Thus, if the ownership of an apartment is registered with only one spouse, then only he is recognized as a taxpayer for it.
Responsibilities of owners
In addition to rights, each owner of common property also has responsibilities. The main one is respect for the rights of other owners. He must voice his intention to dispose of his share to them, since they have the pre-emptive right to repurchase this share. In addition, if this condition is ignored, the owners can challenge the transaction in court and declare it invalid.
The responsibilities of each apartment owner also include mandatory payments, which are calculated in proportion to the corresponding share:
- taxes on general real estate;
- payments for utilities.
Healthy! An unpleasant moment may be rent arrears, which may arise as a result of evasion by one of the co-owners. Then it is better to open personal accounts for each of the owners, but this can be done through the court.
In addition, the shared owner is obliged to comply with sanitary and hygienic standards and eliminate emergency situations, even if he does not live in the apartment.
Please note that evasion of duties is a violation of the law, entailing administrative punishment.
Each of the shared owners of the apartment can change the size of their personal share. For example, one of the owners renovated the premises and equipped it with new equipment. These costs can affect your equity ownership and increase equity, but also increase your tax and utility payments.
Fact of donation of real estate
Of course, you can receive housing as a gift. When a parent or other relative decides to draw up a special gift agreement and enters a person (the recipient) into it. You also need to indicate all the features of the property. Address, apartment size (living area and total), cadastral number. Moreover, indicate whether the housing is being donated in full or a share.
It is important to remember that only an adult can draw up a deed of gift. You cannot donate an apartment whose owner is a child. And also if the donor indicated only one party (the wife or husband in a couple), then the property will be considered personal. It turns out that the other party will not be able to claim.
The donation itself is considered a gratuitous transaction; the recipient does not receive additional obligations.
A marriage contract is a strong document regulating the property and financial relations of future (or actual) spouses. All of its points relate to property acquired during marriage. Such an agreement can resolve the share issue that arises during a divorce. For example, if it states that the apartment should remain with the owner, then the agreement will become a powerful argument in a future court, where the shares of the spouses will begin to be determined.
Selling an apartment in shared ownership
We noted earlier that if he intends to sell his share in the property, the owner must inform other shareholders about this, since in the first place they have such a right. The procedure is that one of the shareholders who intends to sell the share notifies the others in writing indicating the amount he plans to receive from the sale. At the same time, they have the right to agree or refuse the ransom, also in writing.
It is important to know here that if the owner sold the share to a third party for an amount that turns out to be less than that indicated in the notice, the co-owners have the right to go to court to invalidate the transaction.
It is not always possible to easily allocate a share in common property in kind. This usually applies to indivisible property, for example, a one-room apartment. It is easier to resolve the issue when several people have a house in common ownership with separate entrances. Then you will not have to decide on the division of common premises.
Is it possible to sell a minor child's share in an apartment?
This issue is difficult, but solvable. To sell a share owned by a child, you must obtain the consent of the guardianship and trusteeship authorities. Only if one of the conditions is met will they give a positive decision:
- when the sale and removal of the child from the apartment will be carried out simultaneously with the registration of his share in the apartment that is being purchased;
- When a child is sold and discharged, he is allocated a share in another residential property, if another apartment is not purchased.
As a result, the guardianship authorities can approve the sale of the share of a minor child only if he is given a share in another apartment.
Do you need a notary when selling a share?
After the entry into force of Law No. 172-FZ - from July 2, 2021 - all transactions with shared residential property must be executed in the presence of a notary. From now on, the sale or gift of a share to any person, regardless of whether he is or not another participant in the shared ownership, the transaction is first formalized in a notary's office. Then registration takes place in Rosreestr.
On the one hand, such a measure protects the rights of all shareholders, on the other hand, it adds costs to the transaction. Notary registration services amount to 0.5% of the value of the property share according to market valuation, and cannot exceed 20 thousand rubles. This amount includes legal verification of the transaction for its purity and preparation of the contract.
Attention! From 08/01/2019, if an apartment or house is sold by everyone who owns shares and is drawn up in one sale and purchase agreement, then in this case a notary is not needed.
Based on this, we conclude that it is easier to realize a share in a divisible object. But it is often better to contact specialists who will make all the calculations correctly so as not to infringe on the rights of all apartment owners.
Family mortgage
Often, a couple does not have sufficient funds to immediately purchase a home. Then a mortgage becomes a good option. There are 2 options for purchasing a home:
- spouses are co-borrowers, i.e. they will have joint property and the mortgage will be repaid simultaneously together;
- alone, when the mortgage will be issued to one person.
When one person takes out a mortgage, the other must provide a notarized consent. It is not required if the registration of a mortgage was specified in advance in a previously drawn up marriage contract.
There is a possibility of obtaining a joint mortgage when the spouses repay it together. In this case, the housing is registered in the name of one of them. Or one person takes out a mortgage loan, and both take out ownership rights. It doesn’t matter; during a divorce, the court will equally divide all the debts and obligations of the parties.
Experts advise drawing up a detailed marriage contract in advance, which will stipulate the taking out of a mortgage, the procedure for repayment and making payments. There you can also indicate who will make the initial contribution and when, and the procedure for repayment after the divorce. The required sample of such an agreement can be provided by a notary if the spouses wish.
In addition, the contract can detail the size and number of shares of the future property, the possibility of return or compensation in case of cancellation of the mortgage. And also - options for changing the contract in the event of the birth of children or the death of a spouse.
Housing under a will
Is it possible to recognize real estate inherited by one party as common property? For example, when the death of a relative made the wife the heir to his home, does the husband have any rights to it?
According to the law, after marriage, the spouses begin living together. They have one, common household, and if an apartment is purchased, it is considered common. However, each spouse has his own, separate right to own personal property. Which the other half cannot claim in any way:
- any property that previously belonged to the spouses before the marriage;
- real estate received as “free” through a gift or will.
Only the death of the spouse who owns the property will give the second one (if this is stipulated in the marriage contract or there is no will) the right to claim personal property.
Important: the owner of inherited property can safely dispose of it. Sell, rent, give to someone. And also move there as a family and live together. Only the second spouse will only be registered there, without any property rights.
Nuances of shared division
When considering the option of allocating shares in jointly acquired property, especially when it is real estate that no one has the right to dispose of individually, it is worth noting that it is carried out not only by mutual agreement, but also through the court. The division of objects into shares is not required by law and occurs only at the initiative of the parties. If the decision is peaceful, you should clearly agree on who will receive what and how much.
Example: If a man owned a car before marriage, it would remain undisputed even after the divorce. The principle of the first option: what was before my marriage remains mine after the divorce. We own every property, which should not be one and a half times automatically.
