Division of an apartment purchased under a shared construction agreement

General characteristics of the agreement

The legislation of the Russian Federation allows the acquisition of real estate property before it is actually built. Such a transaction is drawn up between the development company and the future owners and records the agreement that the premises will be transferred within the agreed time frame.

The agreement states:

• full names of the parties;
• Construction object;
• detailed characteristics of the premises (floor, area, number of rooms);
• price;
• the procedure for making payment by the buyer;
• deadline for delivery of the object.

Either one person or several people can purchase housing at the construction stage: citizens in a registered relationship, parents and children or close relatives. If the construction project is purchased by several citizens, then the agreement must indicate the size of the share of each owner.

Concluding a contract for shared construction is quite risky, since the funds must be paid by the buyer of the living space immediately. However, the developer may delay the delivery of the project for years, go bankrupt, or delay the process of putting houses into operation. During this time, the owners may encounter situations in which unfinished property will have to be divided.

Svetlana Krasnova, head of the legal service of Inkom-Real Estate, answers:

According to the law, property acquired during marriage is the common joint property of the spouses. In practice, the moment of acquisition is considered to be the moment when ownership rights arise. Based on this, the registrar, unfortunately, will not investigate the question of whose money was paid for the DDU, and will formally require the consent of the spouse for the sale of such an apartment, guided by Part 3 of Art. 35 of the Family Code of the Russian Federation.

However, if the apartment purchased under the DDU was fully paid for with the personal funds of one of the spouses before marriage, then, despite the fact that the ownership of the apartment arose during the marriage, the court recognizes such property as the personal property of the spouse who paid for the apartment. Although exceptions are possible here: for example, the case of joint (after marriage) investments of spouses in expensive repairs of pre-marital property.

Housing division at preschool education

In order to determine how the division of shares is carried out in a DDU purchased as shared ownership, it is necessary to find out whether it was registered before or after entering into official relations.

As a general rule, all property acquired by spouses is divided equally in the event of their separation. The exceptions are:

• values ​​received by inheritance;
• personal hygiene items for husband and wife;
• things given to one of the cohabitants.

Important! At any time, citizens can enter into a contract that will determine which items of property will go to each of them in the event of divorce. According to such an agreement, all valuables, even those inherited or gifted to the husband, can go to the wife, and vice versa.

Conclusion of an agreement on participation in construction before marriage

Before official registration, future newlyweds do not have any joint rights: neither to the things they have acquired, nor to children, nor to inheritance. Therefore, when drawing up an agreement on participation in construction before marriage, the rights to the living space are acquired by the person who signed and registered the agreement.

If, when drawing up an act of acceptance and transfer of residential premises, the copyright holder has already entered into marital relations, then when determining the right of ownership of housing, the following circumstances will be taken into account:

• who actually paid the money for the apartment;
• whose savings were used to pay off the debt under the trust agreement.

Question:

Is it possible to register part of the housing in the name of the wife if the marriage was formalized after the husband independently, without her help, paid the entire fee under the agreement on participation in the construction of the living space?

Answer:

Registration of premises acquired under a contract for participation in construction is possible only in the name of the person who was actually named in the DDU as a “participant in shared construction.” However, if an agreement has arisen between the cohabitants to the contrary, the other half will be able to obtain a share in the real estate through the court, or by notarial agreement.

If both cohabitants contributed money to pay off the debt under the shared participation agreement, then after registering the marriage and family relationship, the second spouse can claim part of the real estate. To do this, the husband or wife who was not indicated in the DDU will have to prove the fact of financial participation in repaying the debt.

As evidence you can present:

• checks (receipts) for the transfer of funds according to the developer’s details;
• printouts from the payer’s salary card;
• witness's testimonies;
• bank statements, etc.

The process of proving the right to a share in property purchased before marriage is quite complicated. On the eve of the wedding, lovers rarely think about the need to collect any papers and, without any questions asked, pay money for the apartment of their future life partner. Therefore, it is better to make efforts to purchase housing after state registration of relations.

Conclusion of a pre-nuptial agreement during marriage

Purchasing real estate after the newlyweds have signed their marriage guarantees that both spouses will receive rights to such property, regardless of whose savings it was purchased with. For example, if after the wedding a husband signs a document about participation in the construction of a living space, then his wife will also be considered the owner of the property under construction.

Important! After the marriage is registered, the second spouse’s property rights are extended regardless of whether he signed the DU agreement or not.

According to the law, even a non-working family member who does not contribute any funds to repay the debt can receive real estate purchased by the other half after the wedding. In this case, it is enough for the spouse to fulfill family responsibilities:

• take care of the family;
• care for husband and children;
• live together.

A non-working cohabitant may lose the opportunity to claim a house under construction only due to the objective absence of family relations. For example, a citizen who is in a fictitious marriage or who does not live together with his spouse will not receive rights to an apartment.

In the absence of a marriage contract or other agreement, during a divorce, the real estate property due to the spouses is divided in half. Moreover, if the apartment has not yet been built, it is not the specific premises that are subject to division, but the right to claim the property from the developer.

Nikolay Kosyak, head of the Rambler/Finance project, answers:

According to Russian law, the common joint property of the spouses, which will have to be divided during a divorce, is any movable and immovable property acquired by them during the marriage. This is stated in paragraphs 1 and 2 of Art. 34 RF IC. At the same time, there is an important caveat: joint property is not what was acquired during the years of marriage, but with the personal savings of one of the spouses. This also applies to property that belonged to one of the spouses before the wedding, as well as property received as a gift or by inheritance.

If the amount for the apartment, which is recorded in the DDU, was paid in full before marriage, then such housing will fully belong to only one of the spouses; it is not subject to the joint ownership regime. So, the notarized consent of the second spouse for the sale will not be required - even if the ownership was already registered during the marriage.

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If both spouses paid for the apartment from personal “pre-wedding” savings, and this is reflected in the payment documents, then both people will claim their share of the property when dividing the property.

When a mortgage is taken out before marriage, and part of the payments are made during marriage, the property is also jointly acquired, since joint family funds were used to pay for it. There are options here, depending on the amount that was used to repay the loan during the marriage. If it is significant, then the spouse who took out the mortgage may be required to allocate a share in the apartment to the other or pay half of the funds spent on repaying the mortgage. An exception in such a mortgage situation is the option when a marriage contract was concluded, and it clearly states that the apartment belongs to one of the spouses.

The procedure for dividing real estate according to DDU

Each of the owners of premises acquired in shared ownership has the right to use any part of it without the consent of the second copyright holder. However, if conflicts arise between owners, joint property can be divided.

Determining how the apartment is divided into shares does not depend on the fact that the co-owners are married. Spouses can allocate the due portion at any time:

• during marriage;
• upon divorce;
• after divorce.

An apartment purchased under DDU can be divided in two ways:

• by mutual agreement - through a notary;
• in the absence of consent - in court.

Notarization

If a married couple has no mutual claims regarding the share due, and the amount of their investments in the purchase is the same, then the property can be divided by signing the appropriate agreement. This document specifies:

• full name, passport details, place of residence of the spouses;
• full description of the subject of the dispute (approximate address, house number, floor, number of rooms, total/living area, conditional number);
• the size of the portion that is allocated to each citizen.

An agreement on the allocation of shares in real estate is concluded in notarial form and is subject to registration in the state register.

The standard option for divorce is to divide the living space into two equal parts. However, if one of the spouses agrees to other conditions, or he did not lead a family life and did not actually participate in paying contributions under the agreement, then he may receive a smaller amount of living space.

Forced partition

When allocating part of the real estate, a judicial institution is contacted in the following cases:

• lack of consent of one newlywed to provide part of the housing to another;
• failure to reach an agreement on the size of the share belonging to each spouse.

To initiate a lawsuit, the spouse interested in the division of property must write a petition to the district court at the location of the shared property. Such a statement must indicate:

• name of the judicial authority;
• surnames and initials of the owners of the premises under construction;
• date of conclusion of the contract, its parties;
• characteristics of the object;
• reasons for partition;
• papers confirming the rights of the second spouse to the apartment.

The application must be accompanied by copies of documents confirming the conclusion or divorce of the marriage, as well as evidence of the rights of the husband/wife to the construction. Disputes regarding the division of real estate acquired during the construction stage take an average of 2-3 months to resolve. If it is necessary to request documents from government agencies, the period of legal proceedings may increase by a year.

How to properly register the sale of an apartment purchased under DDU

In the situations discussed in this article, the sale of housing will require the consent (notarized) of the second spouse. First of all, because Rosreestr services are not required to determine whose money (the spouse’s or both) was spent on the purchase of housing. The registrar will simply compare the date of registration of ownership with the civil status of the seller (owner) at that time. If it turns out that the owner was married, Rosreestr will require a notary-registered permission to sell from the second spouse, as from the second owner under the right of joint ownership.

By the way, the buyer will draw similar conclusions after comparing the dates of purchase of the apartment by the seller and his marital status. He will also require that the title seller (the owner according to Rosreestr) provide written consent (necessarily certified by a notary) to the sale of the second spouse.

What should an owner do if he bought housing under the DDU completely independently (at his own expense) and whose spouse has no relation to the residential property? You can do the following:

• go to a notary with your spouse and certify the consent of the sale (without taking into account the actual presence or absence of the spouse’s ownership of the apartment);
• formalize the marriage in advance by signing a well-thought-out marriage contract establishing the sole ownership of the rights to the apartment by the seller-spouse;
• obtain from the developer a certificate (certificate) about making final payments for the DDU before a certain date (respectively, the wedding date).

The greatest reliability for a home buyer will be evidence from the first two options (certified refusal and prenuptial agreement). The option with payment confirmation may well not be correct enough.

Statute of limitations for allocating shares

You can divide an apartment according to the DDU both during a divorce and after it is finalized. If spouses decide to allocate parts of the living space immediately upon breaking the marriage bond, they must submit an application to the court at their place of residence. It must include both the requirement of intention to divorce and the desire to allocate shares in the joint property.

Property issues can also be resolved after the divorce is finalized. The limitation period for the division of non-residential premises is 3 years. The beginning of this period begins from the moment of official registration of the breakup of the marriage.

Alexey Zubik, commercial director of BSA, answers:

When purchasing an apartment under a DDU before marriage and receiving a certificate for it after marriage, it is important to determine how its cost was paid. If the apartment was fully paid for before marriage, then it will not be considered joint property, even if the certificate for it was received after marriage. This is explained by the fact that the full cost of the apartment was paid by an individual individually, and his spouse did not participate in this, and property acquired by spouses during marriage is recognized as joint property.

When selling an apartment that is not common, the consent of the spouse is not required, however, the fact of receiving a certificate for it after marriage may alert buyers and force them to require permission to sell from the spouse. If it is not possible to obtain such consent, it is recommended to contact specialists who will help you formalize the transaction and confirm its legality.

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Possible risks

The most important risk when buying an apartment under a shared participation agreement is the fact that you will subsequently be left without housing. Today this is not uncommon, which is why many buyers believe that it is better to overpay for finished housing, but not be afraid that the money will be donated to a non-executive organization. Despite the fact that Russian legislation tries in every possible way to control this issue and constantly revises the provisions of Federal Law No. 214, which obliges the developer company to compensate the paid amount to the shareholder in case of failure to fulfill its obligations, the number of fraudulent companies, as well as those who was declared bankrupt during the construction process. As of 2021, the number of defrauded shareholders amounted to more than 150 thousand people.

In order to eliminate possible risks when concluding an agreement on shared construction and not to be deceived, it is necessary to choose only trusted companies with a good reputation that have been working in the market for a long time. It is also very important to check the constituent documents of the construction company and the construction project itself: ownership of the land plot, project declaration, permission from the executive authorities.

Answered by lawyer, K. Yu. n. Yulia Verbitskaya:

If all payments under the DDU were made before marriage, then this apartment is not the joint property of the spouses, regardless of when the ownership of it was registered.

In this regard, in order to avoid further disputes and disagreements, it makes sense for you to obtain from the company with which you entered into a contractual agreement a certificate stating that all funds were paid by you personally before a certain date (the date of marriage). Having this certificate will help you in the future avoid the need to obtain notarized consent from your spouse.

However, you should pay attention to the fact that in the case of investing joint funds in renovating the apartment, paying mandatory and utility bills, and also taking into account the fact that the apartment was registered as ownership after marriage, your spouse may make claims and try to prove that the funds for the apartment were spent jointly. Therefore, I would recommend considering the possibility of concluding a marriage contract that will dot all the i's and provide that the property of each spouse is what is issued and registered in his name.

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What is DDU

DDU is an agreement on shared participation in the construction of a residential building, upon the conclusion of which the purchase of the property occurs. When purchasing residential premises under such an agreement, ownership of it does not pass to the owner immediately after the conclusion of the agreement, but after some time - after the full repayment of the cost of the property and completion of construction work.

Often, several years pass from the signing of the contract to the transfer of ownership of the apartment; in other words, the purchase and possible subsequent division of residential premises according to the DDU are complicated by the fact that the gap between payment for residential premises in a building under construction and the actual receipt of ownership of it is quite a long time period.

The difference between DDU and purchase and sale

Unlike the purchase of residential premises under a purchase and sale agreement, the purchase of an apartment under the DDU occurs at the stage of construction of a residential building; in fact, a citizen invests money not in finished housing, but in one under construction. At the same time, he does not deposit the entire amount at once, but pays off the debt in installments. But even after the full amount specified in the contract has been paid, it is not a fact that the apartment will be moved in immediately. Construction of a house can continue for another year or two, sometimes such houses become long-term construction.

According to the DDU, a citizen can become the full owner of a residential premises only after the residential building is put into operation. It is impossible to buy a finished apartment in a newly built building under an equity participation agreement; in this case, purchase is possible only under a standard purchase and sale agreement.

If the purchasers of residential premises under a DDU agreement are several citizens at the same time, for example, a married couple, then the equity participation agreement may establish the property shares of each of the future co-owners.