How to buy out a small share in an apartment: legal help

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Joint shared ownership of housing often arises under not the most pleasant circumstances (for example, during a divorce) and the relationship between the owners of parts of the property is usually quite strained. The easiest way to solve the problem is to buy out the other person’s share, but the other party does not always agree to such a deal. In this case, the only option left is to recognize the share in the apartment as insignificant. How this can be done and why – read in this article.

What is a minor share

The legislation, Article 252 of the Civil Code of the Russian Federation, mentions the possibility of forced purchase of a small share in an apartment, but there is no clear definition of what such a share is. According to general rules, a share can be considered insignificant when:

It is too small to be isolated in nature.
The owner of the share is not interested in using it.

This is a rather vague definition and therefore the court in each individual case will make an individual decision on whether to recognize the share as insignificant or not.

What share in an apartment can be considered insignificant?

To better understand what may or may not be considered an insignificant share of cost, consider the following examples:

Example : A one-room apartment is divided into 4 shares, 3 of which are owned by one person, and the last share is owned by another. The total area of the apartment is 30 sq.m. Thus, 1 share = 7.5 sq.m. It is impossible to identify such an area in nature. If the owner of 1 share does not have any special interest in its use, the owner of 3/4 can file a lawsuit and forcefully buy out 1/4 of the property.

Example : 5-room apartment with an area of 300 sq.m.
divided into 4 parts, similar to the previous example. Formally, the division is exactly the same, but the 1/4 part in this case is already equal to 75 sq.m. and it can easily be isolated in nature. It is impossible to forcibly buy it.

The procedure for recognizing a share as insignificant

One cannot call the share insignificant in words.
This fact must be established in court. The process can be initiated either by the owners of a smaller share or by the owners of a larger part of the premises. Forced redemption of a share of property is possible only on the basis of a court decision. If the part is insignificant and cannot be identified in kind, then clause 4 of Art. 252 of the Civil Code of the Russian Federation.

In accordance with the regulatory act, owners can come to a general agreement. The owner can transfer his part voluntarily on a gratuitous basis (donation agreement) or on a paid basis (purchase agreement).

It is possible to buy out a share through the court if the owners cannot come to a common decision.

The procedure involves several stages:

pre-trial settlement;
preparation of evidence base;
drawing up a statement of claim;
payment of state duty;
filing a claim in court;
participation in court hearings;
obtaining a reasoned court decision.

Once a court order is received, either party may file an appeal within 30 days. If the case was considered by a magistrate, the period is reduced to 10 days.

Pre-trial regulation is a mandatory stage. The owner of a small share of the property must be sent a notice in writing with an offer to buy his part.

If a reasonable price is offered, then the parties can agree at this stage. The notice of offer will need to be provided to the court as evidence that attempts were made to enter into an agreement.

The claim to the court is filed in accordance with Art. 131 Code of Civil Procedure of the Russian Federation.

The application must contain the following information:

name of the court department;
information about the plaintiff and defendant;
circumstances of the case;
plaintiff's claims;
list of applications.

The document can indicate the circumstances under which a small share was received, as well as the features of the defendant’s use of the property.

Procedure for recognizing a minor share in an apartment

The easiest option to deal with the other owner is to simply agree to purchase a share. Even if this is impossible (it is known in advance that the owner will not sell it for some reason), it is still worth sending a purchase offer in writing. This offer can then be presented to the court as evidence that the applicant previously tried to negotiate a voluntary purchase of the share.

Procedure

Prepare documents and statement of claim.
File a claim with the court at the location of the defendant’s property or residence (if different).
Pay the state fee.
Receive a court decision and wait until it comes into force.
Transfer compensation to the defendant for the redemption of the share and re-register ownership.

Documentation

Approximately the following list of documents must be attached to the statement of claim:

Plaintiff's passport.
Documents confirming ownership of other shares/shares in the same apartment.

Only the person who already owns shares in the same apartment can forcibly buy out an insignificant share.

Documents confirming the receipt of ownership of the share.
Evidence that the plaintiff is right, as well as the fact that previous attempts were made to resolve the issue out of court.
Receipt for payment of state duty.
Power of attorney for the representative and his passport (if required).

Depending on the situation, additional documents may be required.

Statement of claim

The claim is drawn up based on the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation. See sample below.

Expenses and taxes

Almost always, a share in an apartment is considered insignificant only in order to buy it out. In such a situation, expenses, in addition to the cost of the share itself, which is determined each time on an individual basis, will be the state duty based on Article 333.19 of the Tax Code of the Russian Federation. Thus, court fees directly depend on the value of the share.

Before filing documents with the court, it makes sense to evaluate the property as a whole and, in particular, a specific share, which will be considered insignificant. You can do this yourself, based on market prices of analogues, or order a report from an appraisal company. It should be remembered that in the first case, the defendant or even the court may challenge the price.

Example: A share costs 500 thousand rubles. Judging by Article 333.19 of the Tax Code of the Russian Federation, in this case you will have to pay 5,200 rubles + 1% of 300 thousand rubles = 8,200 rubles.

In addition to the above, the new owner of the share will be forced to pay an increased amount of property tax annually. Considering the fact that the share will be insignificant, the price will also not rise too seriously.

Deadlines

If we omit the time it takes to try to negotiate with the share owner and collect documents, then the entire procedure will take approximately 2-3 months. Of these, the application will be considered for about 2 months or less (specific terms are not established by law) and another 1 month after the court hearing and the decision is issued will take for the decision to come into force. This period is given so that either party can file an appeal (if such a desire arises).

Settlement agreement

In practice, immediately before announcing the decision, the court offers the parties a last chance to come to an “amicable” agreement. They can enter into a settlement agreement and still buy and sell a share according to the general rules.

Redemption of a share in court (minor shares)

In this case, the fact of allocation in kind of this smallest share is established in court. If it is not enough to allocate a separate premises, then the lawsuit is satisfied in favor of the owner of most of the property. In this case, the latter is obliged either to provide an equivalent exchange in kind or to compensate the defendant for the loss. The basis for calculating the value of an insignificant share is the market and cadastral value of the entire property, and then isolating the amount at which the share is valued. Most often, the owner of a small part remains satisfied with the funds received. However, he does not have the right to set his own price.

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The latter confirm the impossibility of allocating a share in kind and hand over documents assessing the value of all property and its shares. To confirm the fact that the owner of a smaller share does not fully own his part of the property, it is advisable to attach proof documents: tax statements, receipts for payment of utilities and other services. It would also be useful to invite witnesses who will confirm that the owner of the smaller share has not previously lived in it or used it at all.

Arbitrage practice

Example No. 1 : Cheboksary, 2021. Semenov G.K. files a claim to have his distant relative's share declared insignificant in order to be forced to buy it out. Based on the case materials, Semenov G.K. owns 9/10 of a three-room apartment with an area of 60 sq.m. The remaining 1 part belongs to the defendant, Romina V.S., who inherited it and has not used it since then, has not paid utilities and has never been interested in using it at all. 1/10 share of an apartment with an area of 60 sq.m., that’s only 6 sq.m. They cannot be isolated in nature. Taking into account all of the above, relying on Article 252 of the Civil Code of the Russian Federation, the court decided in favor of Semenov G.K.

Example: No. 2 : Moscow, 2021. Applicant P.S. Voronov submits an application to the court demanding that his brother's share in their common apartment be recognized as insignificant. Based on the materials of the case, the following situation arises: the brothers own a two-room apartment by right of joint shared ownership. Plaintiff Voronov P.S. is the owner of 3/5 parts of the apartment, and his brother – 2/5. The latter refuses to sell his part and evict from the housing because he has no other real estate and his share is quite enough to have undivided use of one room in this apartment. The court found that the defendant really has no other housing, and 2/5 of the share is 25 sq.m. which corresponds to the size of one room of this housing. Under such conditions, the share cannot be considered insignificant. The court refuses the plaintiff.

What can you do with a small share in an apartment?

Any, even insignificant, share in an apartment gives the owner all the rights and obligations. He will be able to register any people on his share, sell his part, rent it out, and so on. But all this requires the permission of the co-owners (if the share cannot be allocated in kind). In many cases, such a piece of real estate is purchased only in order to obtain permanent registration in a particular locality. Only rarely does the owner actually use the share.

The owner is obliged to pay utility bills based on the actual size of his share.

Recognition and subsequent redemption of a minor share is a controversial and complex procedure that requires competent legal support. Experts will clarify some of the most popular and frequently asked questions during a free consultation, and they can also represent the client’s interests in court.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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How to buy out a share in an apartment through the court?

To buy out a share in an apartment through the court, the participant must receive compensation for his share in the common property. When compensation is received, then the participant loses the right to a share in the common property.

Before going to court, you can try to negotiate with the owner of the share about the sale of the corresponding share to them. In addition to oral conversations, it is worth sending a written offer to the owner of the share to sell the share for a specific amount.

If it is impossible to agree on the redemption of a share, it is necessary to determine whether the share that the person wants to buy out is insignificant. If the share is insignificant, then proceed according to the algorithm given above.

When preparing a claim, it is necessary to indicate the following information:

name of the court in which the claim will be brought
information about the plaintiff, indicating his full name, address, telephone number
information about the defendant, indicating his full name, address, telephone number and, if known, then indicate additional information about the date and place of birth, place of work, and one of the identifiers, which include SNILS, INN, series and passport number
claim price
title of the document – statement of claim
the text of the claim sets out the circumstances in connection with which the plaintiff applies to the court with a claim, indicates how the rights of the plaintiff are violated or are being violated by the defendant, and what evidence supports the plaintiff’s arguments. The motivation for the claim will depend on what demands are made by the plaintiff, for example, to terminate the ownership of the defendant’s share, to pay compensation to the defendant, to recognize the plaintiff’s ownership, etc. If the plaintiff took actions to peacefully resolve this issue, then this must be indicated in the lawsuit
the operative part formulates the specific demands of the plaintiff
the list of attachments reflects the documents that are attached to the claim
at the end, the claim must contain the signature of the plaintiff or his representative by proxy

ATTENTION : our lawyer will help you draw up a statement of claim on time