How to divide shared ownership of an apartment in 2021

Cases when it becomes necessary to divide an apartment into shares arise quite often. Even taking into account the fact that the property may not be in co-ownership or shared ownership and has only one owner. Division of housing under any circumstances is not an easy procedure, but unlike the situation with several owners, allocating a share with one owner is much simpler, since the need for a number of stages is immediately eliminated.

Despite this, we should not forget that sometimes dividing an apartment in kind is technically impossible. That is, even without burdening the procedure with settling the nuances with the co-owners, it is not always possible to achieve what you want. This usually happens to those citizens who, when purchasing an apartment initially, did not plan for the future

divide it, or received such an object without being able to influence anything (inheritance, donation, privatization).

Russian legislation allows citizens to independently dispose of their property, but everything has its limitations. It is important to take into account the need to carefully weigh the reasons for dividing housing, whether it is really necessary and the risks of such a decision.

Privatized real estate

First of all, before dividing residential or non-residential real estate into shares, if one owner has rights to it, it is necessary to take into account that after the division the apartment will cease to exist as a single real estate object. Instead, two or more new ones will appear, depending on how many parts are allocated. But here, too, not everything is so simple, since in order to create a new real estate object, it must have a number of requirements and characteristics. Of course, in a situation with an apartment this is not always possible due to the installation of two separate entrances.

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In addition, after division, the original owner of the apartment will lose ownership of the allocated part of this property.

It is advisable to divide an apartment when the living space is large enough or the property was previously combined. For small apartments, especially one-room ones, you can often simply face the impossibility of achieving your plans.

The advantage for the sole owner is the fact that he does not need to reach an agreement with the co-owners or go to court. It is enough to conduct an examination and take care of paperwork. This, in turn, allows you to save not only financial resources, but also time.

Features of allocation of shares

If the apartment is initially divided into shares, then the process of dividing property is simplified. For example, title documentation states that the wife is allocated 1/3 of the apartment, and the man – 2/3. In a situation where a couple decides to divorce, they will not have to further divide the apartment.

The co-owner has the right to ask for the allocation of the share that belongs to him from the common property. the following conditions must be met

after the procedure for allocating shares is completed, the apartment is not deprived of its status as a residential premises;
after the allocation of shares, the apartment retains its technical suitability for the subsequent residence of people in it;
the procedure for allocating shares does not reduce the cost of the apartment;
the allocation of shares does not lead to the rights of other co-owners of the apartment being infringed;
The apartment is divisible real estate.

These conditions are not met in all situations. For example, if a residential building can be equipped so that each share has a separate entrance, kitchen and bathroom, then in a situation with an apartment this will not be possible. Each co-owner of an apartment can have one room, and the rooms must be non-adjacent and equal in size.

Features of the use of the kitchen, bathroom and other common premises are established in writing or on the basis of an oral agreement.

Sole section

Russian legislation allows sole owners of apartments to allocate several separate shares in them, if such a need arises. However, for this it is necessary to comply with the established requirements that relate directly to the section.

Most often, the desire to allocate a certain part of the living space arises for its further sale or other transfer of ownership rights. This is only possible for privatized real estate, since all decisions on the division of municipal properties are made by local governments, but not by residents.

The most important procedure in order to divide the area of an apartment into shares is to conduct a technical examination. It is carried out by a responsible specialist who has a license for such activities and issues relevant documentary conclusions after the inspection. Based on the results of the examination, it will become clear whether it is possible to divide the real estate at all, whether its area allows this to be done, whether it is possible to arrange a separate entrance and other amenities. When you have a document in hand stating that the section is real, the procedure will follow the standard procedure.

There is no need to prove your right to a share!

There is one point that causes anxiety for spouses in a state of divorce.

Often, real estate acquired during marriage is legally assigned to the husband or wife, as a result of which the one recorded in the registration documents has the illusion that he has an unconditional sole property right to it.

The second spouse in this situation experiences quite natural anxiety and wonders how not to be left out and get their square meters.

There are, of course, cases when the issue of property rights to part of the real estate acquired during marriage is controversial. For example, an apartment or house was purchased entirely with funds provided by the parents of one of the spouses, and this fact is legally recorded, or the apartment was acquired under a privatization agreement, in which one of the spouses refused to participate or did not have the right to do so.

If we are talking about the acquisition of real estate during marriage under a purchase and sale agreement, then the spouse who is not the owner according to the documents and is not registered in this living space also has a share in this jointly acquired property.

There is no need to prove anything separately - the procedure for determining ownership is established by clause 2 of Art. 34 of the RF IC, according to which an apartment or house acquired during marriage belongs to each of the parties, regardless of who they are registered in or which spouse contributed money to the purchase.

However, in order for each of the owners to receive the right to dispose of their part of the property, it is necessary to change the status of ownership - transfer it from common joint property to shared property.

How many parts can be identified?

The technical part of resolving the issue of allocating a share in an apartment lies in identifying the possibility of the emergence of new separate cadastral objects from one existing one. In other words, at the legal level, this is not just the disposal of personal real estate, but also changes at the state level, since several premises are created from one dwelling, even if outwardly little changes.

And yet, the technical possibility of allocating shares in practical implementation is the procedure for equipping separate entrances and sanitary facilities for each part of the divided apartment. This assumes that the property initially has more than one hundred square meters. However, in the case when the apartment cannot be divided so fully, it is quite possible to register the required number of shares without isolating them from each other by concluding an agreement on the use of the premises with the owner of part of the housing.

When talking about how many parts residential apartments are divided into, we should refer to the current Russian legislation. There are absolutely no restrictions in this matter. However, in reality everything will depend on the technical expertise carried out. That is, the owner will tell the specialist how many parts he wants to divide his home into, and in the end he will receive an answer as to whether this can be done in practice.

Allowed number of shares

Domestic legislation does not establish the maximum permissible number of shares into which an apartment can be divided. This issue is decided by homeowners themselves. Usually the number of shares is equal to the number of owners.

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It is necessary that the division into shares does not lead to damage to the apartment and the entire house as a whole. The procedure for dividing the apartment will need to be agreed upon with utility employees and people living in the neighborhood.

To find out whether a particular apartment can be divided into shares, spouses are advised to seek advice from a specialist who works in the field of construction and design. It is advisable to take his expert opinion into account when dividing an apartment and refurbishing it. If the spouses went to court to divide the apartment, then it will also take into account the opinion of experts.

If it is not possible to divide the apartment, it can be transferred to one of the spouses, while the second will receive financial compensation. Another option is to establish a procedure for the general use of the apartment.

Documents upon registration

All procedures that are in any way related to real estate are strictly regulated by Russian legislation, including the allocation of a share of a privatized apartment. All the nuances that may be associated with this process are reflected in laws and codes. By nuances we mean the presence of any encumbrances, for example, an outstanding mortgage, seizure of real estate, etc.

Despite the fact that the sole owner of an apartment does not need to undergo a number of procedures that co-owners must undergo (sending notifications, drawing up agreements, going to lawyers and a notary, etc.), you should not count on too easy a fate. First of all, this concerns the preparation of documents that will be needed during registration.

List of required papers:

Certificate certifying ownership of the apartment;
Documents on the basis of which ownership rights were obtained (sale and purchase agreement, exchange, rent, privatization, participation in shared construction, deed of gift, will, certificate of inheritance, etc.);
An extract from the house register about persons registered in the apartment;
Written application for division of real estate;
Receipt for payment of state duty;
Other as necessary (to be specified in each individual situation).

Right of shared ownership. Share size

First of all, let's define the concepts. Ownership can be individual (personal) or general. Common property can be joint (when the owners' shares are not allocated) and shared (when each owner has a specific share of the joint property).

According to paragraph 1 of Art. 245 of the Civil Code of the Russian Federation, the division of joint property into shares occurs equally between all owners.

The shares may be unequal in the following cases:

conclusion by the owners of a voluntary agreement, under the terms of which the shares are not equal;
transfer of ownership of a share from one co-owner to another (for example, by inheritance, under a gift agreement, exchange);
change in the number of owners;
improvements made by one of the owners that increase the value of the property.

Requirements for the allocation of individual shares

Since dividing an apartment into shares is not possible for every similar residential property, it is necessary to take into account all the requirements that make this possible. As mentioned above, these include a number of technical characteristics of housing, namely:

The presence in the apartment of an isolated living space, which in size corresponds to the allocated share (often we are talking about a separate room);
Equipment of separate entrances for shareholders;
Division of technical premises without causing damage to the apartment or house and without harming the interests of third parties.

It can be noted that these requirements are easier to implement in private houses, since the same separate entrance for an apartment located on the fifth floor even sounds very abstract. And although this is not a fundamental point for apartments, in any case, after dividing it into separate parts, the housing will turn into some kind of communal living space. This will be especially felt if the apartment does not have too much footage. In turn, it is not always possible to equip separate sanitary facilities. This will also create some discomfort, which is why buyers for shared ownership are not coming as soon as we would like

Conditions for the allocation of shares from joint marital property

If a marriage is dissolved, it is much easier for spouses to divide an apartment that has already been divided into shares. After a divorce, the spouses will remain the owners of the shares they owned during the marriage.

For example, a husband and wife bought an apartment and registered shared ownership: according to title documents, the husband owns 1/3, the wife – 2/3 of the apartment. After the divorce, the apartment will belong to them under the same conditions - there is no need to arrange a “redistribution”.

Each co-owner may demand the allocation of his share from the joint property.

However, in relation to real estate, there are a number of conditions that must be met in order to allocate a share in kind:

after the allocation of shares, the dwelling must retain the status of residential premises;
after the allocation of shares, the dwelling must remain technically complete and can subsequently be used for its intended purpose;
after the allocation of shares, the value of real estate will not be reduced;
the allocation of a share does not infringe on the rights of the remaining co-owners of the property;
real estate is divisible.

It is not so easy to comply with these conditions. A residential building can still be converted so that the parts have separate entrances and separate bathrooms and kitchens. As a rule, an apartment cannot be refurbished. You can “assign” a separate room to each owner (in this case, the apartment must be at least two-room (if it is divided into two parts), the rooms must be approximately equal in area, not adjacent). The procedure for using common premises - bathroom, toilet, kitchen, loggia, corridor - is determined between the co-owners orally or in writing.

How many shares can the apartment be divided into?

The legislation does not in any way limit the division of an apartment into shares and the number of shares. The solution to this issue is entirely left to the discretion of the owners - this is how the principle of freedom in the disposal of property operates. As a rule, the number of shares is determined by the number of owners of residential real estate, and these shares may be unequal.

However, when dividing an apartment into shares, it is imperative to take into account the technical requirements that apply to the divided residential premises. The division into shares must be carried out without significant damage to the apartment and house. Each share should be an isolated room with a separate entrance, suitable for comfortable living, and the division should take into account not only the rights of co-owners, but also the interests of neighbors and the requirements of utility services.

Thus, despite the formal possibility of dividing an apartment into as many shares as desired, the actual division is not always possible from a technical point of view. It is possible to convert one living space into several (for example, two) - with separate entrances, equipped bathrooms and kitchens, but the area of the apartment must be at least fifty, if not one hundred square meters. meters, in addition, other technical conditions must be met. What if the division is supposed to be divided into more than two parts?

To determine whether it is possible to divide an apartment into several parts in each specific case, you need to seek advice from an expert in the field of design and construction. According to his recommendations, owners can draw up an agreement on the division of the apartment and refurbish the housing (more about the prenuptial agreement and marital agreement below). The court is also guided by the expert conclusions of such specialists if the owners apply to a judicial authority for a decision on the division of a joint apartment (more about the judicial process - also read below).

If a real division is not possible, the owners are left with several options (voluntary or judicial):

leave the apartment in the ownership of one owner and oblige him to pay monetary compensation to the second co-owner;
outline the procedure for sharing living space.

Transfer of ownership or use rights

After the apartment is divided into separate shares, each of the owners has the right to carry out any transaction with their property.
The relationship between such owners differs from co-ownership in that there is no need to coordinate and obtain permission to alienate real estate from each other. Each share is a separate object, with its own personal account and documents. This is what makes it possible to sell such property using a simplified system, but at the same time, the right of redemption will always be primarily with the remaining shareholders. That is, having decided to sell your part, you first need to notify the other tenants in writing and either receive their written, notarized refusals, or after a month you need to formalize the deal independently of anyone. All alienation transactions are not subject to mandatory state registration, since the new owner will still register ownership rights. However, for the safety of the parties and to ensure legal purity, it makes sense to have contracts certified by a notary office. This will save both the seller and the buyer from possible claims and fraud.

How to divide a shared apartment

Domestic legislation offers spouses during a divorce the following options for dividing an apartment - on the basis of a peaceful agreement (registration of a marriage contract or agreement) and in court. An agreement and a marriage contract have the same legal force and binding effect as a court order, but these documents will need to be drafted correctly.

If the spouses decide to draw up an agreement or a marriage contract, then they will be able to divide the property at their own discretion, take into account each other’s wishes, and prevent costly and lengthy court proceedings.

Marriage contract

The marriage contract determines the features and nuances of the division of apartment space after a divorce. It can be registered both before the registration of the marital union and during marriage, but it will acquire its legal force only after the spouses officially legitimize their relationship.

How to conclude a marriage contract correctly

The advantage of a prenuptial agreement is the prevention of property disputes and litigation during divorce. With the help of this document, spouses can divide property into such shares that are optimal for them. As for the court, in this case the housing will most likely be divided into equal shares.

Through a marriage contract, spouses establish a certain type of property regime - joint, shared or separate. It can also stipulate other conditions - the procedure for using property, the specifics of the division of housing upon dissolution of the marital union.

Agreement

An agreement is a document that contains a list of joint property assets of the spouses, as well as an option for its division in the event of a divorce. You will need to specify the size of the shares, the procedure for their use, and the specifics of allocating shares in kind if such a possibility exists.

After drawing up the agreement, the spouses contact an employee of the notary agency, who will certify the document. The second step of the spouses is to contact Rosreestr and register the agreement.

Initiation of legal proceedings

In this situation, the interested party files a claim in court at the defendant’s residential address.

The following information is included in the claim:

information about the court – name, address of its location;
information about the participants in the trial: full name in the unabridged version, residential addresses;
if spouses have children, it is necessary to indicate information about minors: full name, date of birth, residential addresses;
information about the marital union: date of registration and divorce;
a list of common property objects indicating the ownership regime;
links to legal documents;
request to divide the apartment indicating the preferred division option;
a list of attached documentation that confirms the circumstances indicated by the plaintiff in his appeal;
date of writing the claim, signature of the applicant.

During the court hearing, the court will study the circumstances, the documentation provided, and listen to the opinions of the plaintiff and defendant. After that he will make his decision.

Judicial practice shows that in standard situations, property is divided into equal shares. If any of the spouses has minor children, the court will increase that person’s share.

If the apartment cannot be divided into shares, the court transfers it to the ownership of one spouse. This person acquires an obligation to pay the second financial compensation in the appropriate amount.

Another common option is to transfer the apartment into the ownership of one spouse, with whom the children remain. For example, the wife becomes the full owner of the apartment. She does not transfer financial compensation to her ex-husband, but at the same time she is deprived of the right to demand the establishment of alimony payments.

Acquired rights and obligations

The owner of an apartment, as well as the owner of a share in it, has the right to dispose of his property as he sees fit only within the framework established by law.
That is, all transactions must be legal and must not violate anyone’s rights. After the division of housing, each of the owners will have the right to register their relatives and friends in the apartment, live in it and use it directly for its intended purpose. You can also rent out your property. If the apartment is not residential, the owners have the right to place their offices in it or use it in other ways, but not for living. Apartments located in residential buildings are prohibited from being used for industrial production.

At the same time, owners are obliged to pay utility bills on time, maintain the property in proper condition and operate the apartment without violating the rules of living in apartment buildings. Based on this, before dividing apartments into shares, it is advisable to consult with a legal specialist.

The right to dispose of shares in an apartment

After the apartment has become the shared property of the spouses, the apartment will not be re-divided during a divorce.

A husband and wife who become owners of shares in a once joint apartment have the right to use the housing together. If the agreement or court decision determined the procedure for using the housing, it is necessary to comply with this procedure.

The owner of a share in an apartment has the right to sell, exchange, donate, or rent it out. However, it is necessary to coordinate the deal with the other co-owners. It is also necessary to remember about the right of first refusal, which is vested in the owner of another share - you should notify him of the decision to sell the share, and only if within a month after receiving the notification he does not express a desire to purchase it, you can draw up a purchase and sale agreement with another buyer.

If the co-owners of an apartment have a dispute regarding the procedure for using joint shared property, they should go to court to resolve it.

Determination of shares and their division in practice

Disagreements on how to divide jointly acquired property – according to the law or “fairness” – are not uncommon.
For example, one of the spouses may believe that due to the difference in income (he worked and his wife did not), his contribution to the purchase of an apartment or house is more significant, and, therefore, the share should be larger.

It should be noted that from a legal point of view this is nothing more than an illusion. If there is no marriage contract or agreement on the division of real estate, then in accordance with Art. 39 of the RF IC, jointly acquired property is divided into equal shares between spouses.

One important point should be clarified here - usually an apartment or house is an integral part of jointly acquired property. And the share of one of the spouses may turn out to be larger in the property or even go to him entirely - despite the fact that the law’s requirement for equal shares in the division of property as a whole will be implemented.

Often, before going to court, it is necessary to determine how to most profitably divide property, and whether it is, in principle, worth seeking to obtain a share in an apartment or house.

This issue is extremely delicate and when contacting us, it is always resolved individually. It is required not only to consider the property to be divided, but also to take into account the life circumstances in which our principal finds himself and all the conditions under which the property was acquired.

Example 1: receiving ¼ of the apartment and monetary compensation for the rest of the share, if there are minor children.

Let's take, for example, a fairly typical situation when a significant part of the disputed property is an apartment consisting of two rooms.

With a 99.9% probability, a court without the participation of a representative will divide it in equal shares. But under similar conditions of the problem—dividing a two-room apartment between spouses with children—the solution may be different.

One of our clients, acting as a plaintiff, initially did not have any doubts regarding the division of the apartment in equal shares. But upon closer examination of her situation, a tactically more advantageous partition option for her was found.

It was decided to insist on receiving ¼ of the apartment and monetary compensation for the rest of the share. In the lawsuit, we proposed to the defendant a draft settlement agreement on the division of real estate in this way. As a result of negotiations, the parties signed this settlement agreement.

Judge for yourself - our client did not have another place of residence, and her ex-husband did not plan to live in the living space alienated to him, but did not want to lose ownership of the apartment. Did assigning a ½ share in the property to our client entail receiving any benefits?

Of course no. She retained the right to use the living space both if she received ½ and ¼. Accordingly, the former spouse also received the right to visit the apartment and dispose of it in other ways, regardless of the size of the share going to him.

Could the share received by the client be regarded as a potentially promising object of sale? Unlikely.

Let's not forget that a minor child was already registered in the apartment, which made the practical sale of the share virtually impossible. In addition, the ex-husband could theoretically register his future children for the share due to him.

Now let's take a look at what set of benefits the client received with the section option we proposed:

monetary compensation expressed in a decent amount;
facilitating the potential sale of your share. When purchasing another home, the requirements of the guardianship authorities regarding decent living conditions for minors when assigned ¼ ownership rather than ½ ownership in the previous apartment are much easier to fulfill.

Example 2: Receiving monetary compensation for a share in an apartment

Another example. The disputed object was also a two-room apartment. But the client had the opportunity to live with her parents. Receiving a share in the apartment brought her practically no benefits.

It was tactically advantageous to receive monetary compensation for the half of the apartment due to her. The defendant, in turn, agreed to such conditions, since he also did not want to share the apartment with his ex-wife. We prepared a draft agreement on the division of property in a manner that was subsequently signed by the parties and notarized.

The money won served as an initial contribution to the purchase of new housing. It would be incredibly difficult for the client to implement such a purchase while receiving a share.

As you can see, the role of a truly competent lawyer is not limited to simply accompanying his client in court.
His task is to help determine the most profitable solution option, meticulously and carefully weighing all the pros and cons, and then, using his knowledge of the intricacies of the law, to defend the version of the division in which his client is interested.

Risks associated with receiving a share

As we said just above, a share in an apartment or house does not have a material connection to any specific rooms or other territory.

In order for the share due to someone to turn from an abstract arithmetic fraction into something tangible, in some cases a special procedure is used, that is, “allocation of a share in kind.” Simply put, as a result, an independent autonomous real estate object is allocated from some living space. But this option is not always possible to implement; this procedure usually applies to land plots and houses.

Our legislation provides for the possibility of holding this event, but limits the cases when this can actually be carried out.

There is even a special article 252 of the Civil Code of the Russian Federation, which is called: “Division of property in shared ownership and allocation of a share from it.”

Its third paragraph states that a participant in shared ownership has the right to demand the allocation of his share in kind.

In the same paragraph 3 there is a paragraph that begins with a rather remarkable phrase: “If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property ...” What is meant here? In fact, the owner of a share in an apartment in a multi-storey building cannot count on its transformation into an independent living space.

Why - yes, simply allocating a share presupposes the formation of a living space with a separate bathroom, kitchen and entrance, but in reality the BTI will not allow such a serious redevelopment.

With home ownership, this can be quite doable. But there are some important nuances here.

The house and the surrounding area must be able to be divided according to the share of each of the former spouses. At the same time, each person should have a separate entrance, kitchen and bathroom.

However, even if such a possibility exists, verbal confirmation is not enough. In court, it is necessary to provide the results of an examination proving the possibility of such a division, accompanied by a redevelopment project. It should be noted that the examination procedure and the development of design and technical documentation are not cheap. It is worth noting that home ownership that has undergone such a restructuring significantly loses liquidity.

All of the above is a serious reason to take an extremely thoughtful approach to the decision on the method of dividing jointly acquired property when living space is part of it.

The lack of practical possibility of allocating a share in kind is a significant obstacle to the application of clause 2 of Art. 39 of the RF IC, which gives judges the right to determine for the spouse with whom minor children remain a share equal not to ½, but more.

However, we have a separate article devoted to the deceptive rosy nature of this point, after reading which you will understand why it’s not really worth counting on it.