there is a privatized apartment of 3 rooms. divided into 5 shares. 1 share belongs to the brother. the other 4 are for me. shares are not determined. brother needs money for his share. but I don't have as much money as he wants now. since there is no money, he wants to allocate his share and get a room. his minor child is registered in the apartment without the right of ownership. Is it possible to allocate a share in this way? What are his legal options?
Answer
Hello Sergey.
According to Article 247 of the Civil Code of the Russian Federation, the possession, use and disposal of property in shared ownership is carried out by agreement between all participants in shared ownership. On the basis of Article 252 of the Civil Code of the Russian Federation, a participant in shared ownership has the right to demand that his share be separated from the common property.
That is, your brother rightfully declares a demand for the allocation of his share of the living quarters.
However, according to Clause 3, Article 252 of the Civil Code of the Russian Federation, if the allocation of a share in kind is impossible without disproportionate damage to property (and in this case, separation is impossible), the spun-off owner has the right to pay him the value of his share by other participants in shared ownership.
At the same time, your brother, as a participant in shared ownership, has the right to demand, including in court, to determine the procedure for using the residential premises (apartment) and securing the right to use one of the rooms of the residential premises (apartment) for him.
In addition, you should not reject the option in which your brother will take action to sell his share of the living space. However, in this case, you, as a shareholder, have a pre-emptive right to purchase the brother's share. For this brother will be obliged to writing notify you of the intention to sell the share to another person. Note- brother is not obligated offer you to buy his share. The notice of the sale of a share must indicate the conditions under which the share is sold: the cost must be indicated, if it is sold with an installment payment, then this condition must also be indicated in the notice. If within 1 month you refuse to buy a share or ignore the notice altogether, then only after that brother can sell his share. If the share is sold at a price lower than that specified in the notice, then you will be entitled to demand, and reasonably demand, that the contract of sale be declared invalid.
Zubkov Sergey Vasilievich(07/10/2013 at 23:31:04)
Dear Nadezhda Alekseevna! I present to you Articles 250 and 252 of the Civil Code of the Russian Federation. This is the only way to resolve the problem that has arisen between you, as participants.
Article 250. Priority right to purchase
1. If an outsider is in common ownership, the remaining participants in shared ownership shall have the pre-emptive right to purchase the share being sold at the price for which it is being sold, and on other equal terms, except in the case of sale at public auction.
Public auctions for the sale of a share in the right of common ownership, in the absence of the consent to this of all participants in shared ownership, may be held in the cases provided for by the second part of Article 255 of this Code, and in other cases provided for by law.
2. The seller of a share is obliged to notify in writing the other participants in shared ownership of the intention to sell his share to an outside person, indicating the price and other conditions on which he sells it. If the other participants in shared ownership refuse to purchase or do not acquire the share being sold in real estate within a month, and in the ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.
3. When selling a share in violation of the pre-emptive right to purchase, any other participant in shared ownership has the right, within three months, to demand in court that the rights and obligations of the buyer be transferred to him.
4. Assignment of the pre-emptive right to purchase a share is not allowed.
5. The rules of this article shall also apply when a share is alienated under an exchange agreement.
Article 252., which is in shared ownership, and the allocation of a share from it
1. Property that is in shared ownership may be divided among its participants by agreement between them.
2. A participant in shared ownership has the right to demand that his share be separated from the common property.
3. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the division of the share of one of them, the participant in shared ownership shall have the right to demand in court that his share be divided in kind from the common property.
If the separation of a share in kind is not allowed by law or is impossible without disproportionate damage to property in common ownership, the separated owner has the right to payment to him of the value of his share by other participants in shared ownership.
4. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the ownership right shall be eliminated by payment of an appropriate amount of money or other compensation.
The payment of compensation to a participant in shared ownership by other owners of compensation instead of the allocation of his share in kind is allowed with his consent. In cases where the share of the owner is insignificant, cannot be really allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the other participants in the shared ownership to pay compensation to him.
5. With the receipt of compensation in accordance with this article, the owner loses the right to a share in the common property.
Good luck and avoid conflict. Sergey. My answer is your feedback.
The section in this case involves the allocation of an isolated room for one or more owners in the right to a common living space, for example, in a multi-room apartment, one of the residents is allocated a room. But there is also a common joint property: bathroom, kitchen, hallway.
It is possible to divide the apartment by agreement between all owners, for example, to allocate a certain room to each, but the other area will remain in common ownership.
In this case, you should write an application to the registration authorities, indicate in it consent to certain shares, and then a certificate will be issued confirming the ownership of a certain room in the apartment.
But if an agreement is not reached, and the desire to own a certain premises, but not a share in the common property right, is, then it can only be resolved by a court order.
The court will consider all the circumstances of the case, and if it is possible to allocate a separate room, it is likely that it will decide on this.
The division of a one-room apartment into separate rooms is not possible, and only for this reason it can be divided only by shares in the right of common ownership, since it is impossible to allocate such a room in it, which will have a separate entrance.
If a separate room of a smaller area is allocated than that of other rooms, then the owner, whose room has a large area, makes monetary compensation.
Expert opinion
Roman Efremov
How are shares in an apartment determined?
The division of shares requires a preliminary determination of the total area of the dwelling, which will consist of both residential rooms and utility rooms. Based on the value obtained, the owners can begin the process of distributing shares in proportion to the number of owners.
The final calculation is directly affected by many factors, including:
- The number of sharecroppers. The more applicants for the allocation of a separate unit of living space, the less square meters they will get.
- If the property is classified as joint property, it is not subject to division into shares.
- Initially, the shares of residents are absolutely equal (clause 1, article 245 of the Civil Code of the Russian Federation). If users intend to deviate from the principle of equality, they will have to enter into an appropriate agreement.
- When dividing one-room apartments, shares cannot be expressed as separate rooms, since this is not possible with the existing layout.
- Due to the allocation of a share in kind, separation from shared ownership is allowed. The allotment in kind involves the creation of an autonomous separate room with a separate entrance, access to communications and engineering networks.
- If the footage of the received share does not correspond to the declared parameters, the co-owner has the right to count on the payment or receipt of compensation from other owners. At the same time, he loses ownership of the share in favor of other owners.
Section by shares of a communal apartment
Not relatives at all live in such an apartment, but strangers to each other, and the allocation of shares takes place on the basis of the available area. Each share is registered and has its own certificate of ownership for a particular citizen or citizens, if a family lives in it.
Expert opinion
Roman Efremov
Experience 5 years. Specialization: all areas of jurisprudence.
Initially, a communal apartment involves a piece of real estate, divided between several owners. At the same time, the right of ownership arises not only for residential separate rooms, but also for utility rooms that are used together. The calculation of the allocated share will take into account a part of the total area.
Let's take this situation as an example. The communal apartment consists of 3 residential premises of 10 squares, and 30 squares of common premises. Consequently, each owner has an additional 10 squares of area attributed to joint ownership and use. The share of each owner (provided that there are three of them) will be 10 + 10 = 20 square meters. meters.
If maternity capital was used
The direction of maternity capital funds and other forms of state social subsidies implies the mandatory allocation of a share in real estate to minor children. This is explained by the fact that state support is aimed primarily at improving the living conditions of the child, because his rights must be taken into account.
The redemption of a share in an apartment provides for the allocation of certain percentages in favor of the second parent and children. It is necessary to calculate the size of the shares in advance, or within 6 months after the registration of the purchase and sale agreement.
At the same time, spouses are allowed to independently form the distribution of shared ownership in their apartment. For example, they can retain ownership of 2/3 of the apartment, and transfer 1/3 in favor of the child. However, if maternity capital is used to buy a small share in a communal apartment or hostel, this approach is difficult to follow.
Since real estate purchased with public money is partly owned by a minor, subsequent housing transactions can be carried out solely with an eye to the guardianship and guardianship authorities.
It is the authorized persons who will decide how it is more expedient to divide the shares so that the rights and material interests of the baby are not infringed.
Articles of the law
Regulatory regulation of the distribution of shares between owners of apartment premises is regulated by a number of regulatory documents, including:
- Civil Code of the Russian Federation;
- Housing Code of the Russian Federation;
- Instructions on the procedure for accounting for the housing stock in Russia;
- Federal Law "On State Registration of Real Estate" No. 218.
It is worth noting that having a share in an apartment means that its owner has the rights to it, according to the established part of the apartment, that is, the share. The separation from the common law of a share takes place on the basis of Article 252 of the Civil Code.
The rights and obligations of the owner of the share are enshrined in column 13 of the Code, in Art. 209 defines:
- The owner of a share can own, use and dispose of it without restrictions.
- The owner has the right to dispose of the shares at his own discretion, not contradicting the current legislation.
In Art. 247 defines the procedure for using shares in the right of common ownership, and in Art. 246 - the right to dispose.
Article 245 defines equal shares in specific cases where a specific area cannot be singled out separately.
Share agreement
The agreement of the parties is the legal basis for the allocation of a certain share in a shared apartment, it should reflect:
- Date of.
- Information about all parties agreements: full name, data of a civil passport, place of permanent registration.
- Subject of the agreement: how and in what shares the common property will be distributed.
- Description of the apartment, its cadastral characteristics.
- Final allocation of specific shares: as a percentage of the entire area of \u200b\u200bthe apartment on one side - so many percent, on the second - so much, and so on in relation to all owners.
- A clause that the shares can be redefined by a separate agreement with the consent of the parties.
- Identification of improvements carried out by the parties both in the whole apartment and shares: they can be the common property of the parties or a specific owner.
- That owner of the share, at whose expense significant improvements were made to the apartment, has the right to count on an increase in the right in common shared ownership.
- In case of income from commercial activities, then they can be distributed according to the shares of each owner.
- Restrictions on the right to dispose: the second party can dispose of his share only if an agreement is reached.
- Determination of the right of pre-emptive acquisition of a share.
- Conditions for terminating the agreement, allocation of a share in kind to each party or compensation in accordance with the shares.
Expert opinion
Roman Efremov
Experience 5 years. Specialization: all areas of jurisprudence.
The agreement is a peaceful option for resolving potential conflicts. The legislator gives the right to users, when drawing up an agreement on the allocation of shares, to deviate from the principle of equality. This means that the owners of square meters have the right to independently set arbitrary fractions, depending on their needs.
Signatures of the parties to the agreement with transcript. Please note that in order to become the owner of a share under the agreement, it must be registered in the registry individuals, and only from the moment of registration it enters into legal force. If an agreement on the determination of shares has not been signed, then they are considered equal.
Expert opinion
Roman Efremov
Experience 5 years. Specialization: all areas of jurisprudence.
If, for some reason, users could not reach a consensus on the conclusion of an agreement, the subsequent division and allocation of shares from the common real estate is possible only in court. At the same time, it must be remembered that the requirement to allocate separate units of living space is presented taking into account certain features.
In kind, the allocation of a share is practically not possible, since the size of separate units does not coincide with the boundaries of the premises in the apartment. Therefore, in this situation, compensation for the cost of the share will be established. The same approach is demonstrated when solving problems related to the impossibility of allocating independent accounting units in physical terms.
How to correctly calculate the share in the apartment
Expert opinion
Roman Efremov
Experience 5 years. Specialization: all areas of jurisprudence.
- The indicator of the total area of the property.
- Living area of the apartment.
- Non-residential area of the property (auxiliary premises - bathroom, kitchen, etc.).
The legislator approved a provision according to which the rights of several owners to apartment premises are equal, with the exception of a number of situations. That is why, when determining share indicators, it is necessary to first calculate the ratio of the total area of the object to the parameters of the living space attributable to each owner.
Let's look at the example of calculating shares in an apartment with a total area of 71 m 2, in which the rooms have an area of 10, 15 and 20 m 2, and the area of \u200b\u200bcommon areas is 28 meters:
- For a room of 10 meters, the calculation procedure is as follows: the total area is divided by the area of \u200b\u200bthe room \u003d 0.14 / 100 of the total area.
- For a room of 15 square meters - 21/100.
- For the 3rd room - 0.28.
- The share of the total area - according to the same scheme will be 0.36.
Each owner of the rooms is allocated the same shares in the right of common ownership, regardless of the size of the room, at the rate of 0.36:3=0.12.
The certificate of ownership prescribes both a residential share and a common use in a common apartment.
If the apartment is in common ownership, for example, for three people, then each of them will own an equal share, that is, the area of \u200b\u200bthe apartment / for three.
Formula
The share of each family member can be calculated by the formula, where the area of a separate room is divided by the number of the total area of \u200b\u200bthe apartment:
The share of the owner consists of the result of dividing the area of his premises by the area of \u200b\u200ball the premises in the apartment.
For example, one of the rooms has an area of 18 meters, and the whole apartment - 73 square meters, 3 people live in the apartment, living quarters are 50 meters, the formula for calculating:
Instruction
It is possible to divide an apartment into shares by agreement of the parties, but if it is not achieved, then in a judicial proceeding.
As follows from the Civil Code, Article 245, the ownership of an apartment implies a common shared ownership, that is, it belongs to everyone in equal parts. But again, the same article determines that the share can be increased if someone has made a larger contribution in relation to others living in the apartment.
Or, using personal funds, the properties of the apartment were changed for the better, for example, a European-style renovation was made in it. Such an action cannot be separated from the dwelling, and therefore the participant in the repair has the right to request an increase in his share in the common property right with the consent of all owners. But if it is not achieved, then the share can be established in court.
If, nevertheless, all owners came to an agreement on the allocation of a share, then it must either be registered or certified by a notary office, an oral agreement has no legal basis.
Otherwise, a citizen interested in allocating a share applies to the judicial authority with a request to allocate a specific share, and the courts meet the plaintiffs, the share is allocated in court.
How to calculate the share in the apartment online
The formation of the tax rate occurs due to the following indicators:
- A specific value owned by a citizen.
- Basic property tax rate.
- Cadastral (in some cases, inventory) value of the property.
If the cadastral value does not exceed 300 thousand rubles, then the tax rate is 0.1% of the value. This value is nationwide and can be changed at the regional level. The actual norms allow you to increase the rate to 0.3% or cancel it.
- Up to 500 thousand rubles - up to 03%.
- Over 500 thousand - up to 2%.
The rates are set by the authorities local government , they can be either increased or reduced, according to their decision: it all depends on the size of the share, the type of residential building or the purpose of use.
To find out the tax rate for a share, its size should be multiplied by the total cost according to the cadastre, then the tax will be calculated only for a certain share, and not for the entire dwelling.
In order to receive a benefit, you should contact the tax office at the location of the property and present documents confirming the receipt of exemption from tax.
Interest- a convenient relative measure that allows you to operate with numbers in a format familiar to humans, regardless of the size of the numbers themselves. This is a kind of scale to which any number can be reduced. One percent is one hundredth. The very word percent comes from the Latin "pro centum", which means "hundredth".
Interest is indispensable in insurance, finance, and economic calculations. Percentages express tax rates, return on investment, payment for borrowed funds (for example, bank loans), economic growth rates, and much more.
1. The formula for calculating the share as a percentage.
Let two numbers be given: A 1 and A 2 . It is necessary to determine what percentage is the number A 1 from A 2 .
P = A 1 / A 2 * 100.
In financial calculations it is often written
P = A 1 / A 2 * 100%.
Example. What percentage is 10 of 200P = 10 / 200 * 100 = 5 (percent).
2. The formula for calculating the percentage of a number.
Let the number A 2 be given. It is necessary to calculate the number A 1 , which is a given percentage P of A 2 .
A 1 = A 2 * P / 100.
Example. Bank loan of 10,000 rubles at 5 percent. The amount of interest will be
P = 10000 * 5 / 100 = 500.
3. The formula for increasing a number by a given percentage. Value with VAT.
Let the number A 1 be given. It is necessary to calculate the number A 2 , which more number A 1 by a given percentage P. Using the formula for calculating the percentage of a number, we get:
A 2 = A 1 + A 1 * P / 100.
A 2 = A 1 * (1 + P / 100).
Example 1 Bank loan of 10,000 rubles at 5 percent. The total debt will be
A 2 = 10000 * (1 + 5 / 100) = 10000 * 1.05 = 10500.
Example 2 The amount without VAT is 1000 rubles, VAT 18 percent. The amount including VAT is:
A 2 \u003d 1000 * (1 + 18 / 100) \u003d 1000 * 1.18 \u003d 1180.
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4. The formula for reducing a number by a given percentage.
Let the number A 1 be given. It is necessary to calculate the number A 2 , which less than number A 1 by a given percentage P. Using the formula for calculating the percentage of a number, we get:
A 2 \u003d A 1 - A 1 * P / 100.
A 2 = A 1 * (1 - P / 100).
Example. The amount of money to be issued minus income tax (13 percent). Let the salary be 10,000 rubles. Then the payout amount is:
A 2 \u003d 10000 * (1 - 13 / 100) \u003d 10000 * 0.87 \u003d 8700.
5. The formula for calculating the initial amount. Price without VAT.
Let a number A 1 be given, equal to some initial number A 2 with an added percentage P. We need to calculate the number A 2 . In other words: we know the amount of money with VAT, we need to calculate the amount without VAT.
Denote p = P / 100, then:
A 1 = A 2 + p * A 2 .
A 1 = A 2 * (1 + p).
Then
A 2 = A 1 / (1 + p).
Example. The amount with VAT is 1180 rubles, VAT 18 percent. The cost without VAT is:
A 2 \u003d 1180 / (1 + 0.18) \u003d 1000.
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6. Calculation of interest on a bank deposit. The formula for calculating simple interest.
If interest on a deposit is accrued once at the end of the deposit term, then the amount of interest is calculated using the simple interest formula.
S = K + (K*P*d/D)/100
Sp = (K*P*d/D)/100
Where:
S is the amount of the bank deposit with interest,
Sp - the amount of interest (income),
K - initial amount (capital),
d - the number of days of accrual of interest on the attracted deposit,
D is the number of days in a calendar year (365 or 366).
Example 1 The bank accepted a deposit in the amount of 100 thousand rubles for a period of 1 year at a rate of 20 percent.
S = 100000 + 100000*20*365/365/100 = 120000
sp = 100000 * 20*365/365/100 = 20000
Example 2 The bank accepted a deposit in the amount of 100 thousand rubles for a period of 30 days at a rate of 20 percent.
S = 100000 + 100000*20*30/365/100 = 101643.84
Sp = 100000 * 20*30/365/100 = 1643.84
7. Calculation of interest on a bank deposit when calculating interest on interest. Formula for calculating compound interest.
If interest on a deposit is accrued several times at regular intervals and credited to the deposit, then the amount of the deposit with interest is calculated using the compound interest formula.
S = K * (1 + P*d/D/100) N
Where:
P is the annual interest rate,
When calculating compound interest, it is easier to calculate the total amount with interest, and then calculate the amount of interest (income):
Sp = S - K = K * (1 + P*d/D/100) N - K
Sp = K * ((1 + P*d/D/100) N - 1)
Example 1 A deposit was accepted in the amount of 100 thousand rubles for a period of 90 days at a rate of 20 percent per annum with interest accrued every 30 days.
S = 100000 * (1 + 20*30/365/100) 3 = 105013.02
Sp = 100000 * ((1 + 20*30/365/100) N - 1) = 5013.02
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Example 2 Let's check the compound interest formula for the case from the previous example.
Let's divide the term of the deposit into 3 periods and calculate the interest for each period using the simple interest formula.
S 1 \u003d 100000 + 100000 * 20 * 30 / 365 / 100 \u003d 101643.84
Sp 1 = 100000 * 20*30/365/100 = 1643.84
S 2 = 101643.84 + 101643.84*20*30/365/100 = 103314.70
Sp2 = 101643.84 * 20*30/365/100 = 1670.86
S 3 = 103314.70 + 103314.70*20*30/365/100 = 105013.02
Sp 3 = 103314.70 * 20*30/365/100 = 1698.32
The total amount of interest, taking into account the accrual of interest on interest (compound interest)
Sp = Sp 1 + Sp 2 + Sp 3 = 5013.02
Thus, the formula for calculating compound interest is correct.
8. Another compound interest formula.
If the interest rate is given not on an annualized basis, but directly for the accrual period, then the compound interest formula looks like this.
S = K * (1 + P/100) N
Where:
S - deposit amount with interest,
K - the amount of the deposit (capital),
P is the interest rate,
N is the number of interest periods.
Example. A deposit was accepted in the amount of 100 thousand rubles for a period of 3 months with monthly interest at a rate of 1.5 percent per month.
S = 100000 * (1 + 1.5/100) 3 = 104 567.84
Sp = 100000 * ((1 + 1.5/100) 3 - 1) = 4567.84
Most of the apartments in our country have several owners. Many live without conflict and they are doing well. Difficulties mainly arise when co-owners of shares in apartments cannot agree. Some of them begin to obstruct their co-owner in using his share of the apartment, others accept a completely honest and fair offer to sell the entire apartment together and share the money commensurately. . Ignore, basically, such a position, those owners who ended up in apartments.
They are well aware that their neighbor, who lives with his family in a separate apartment, will not really settle for his share in a shared apartment in order to live in a communal apartment. Promises that they are ready to buy back or , switch to sharing, etc. there will be no end. Everything suits them, they, having a share in the apartment, use the entire apartment and there is no need for them to worsen their living conditions. What to do and how to deal with it? This is the topic of our conversation today.
If the share in the apartment is not significant
What is the difference between minor and minor ?
An insignificant share in the apartment is less than 25% of the total area of the apartment, but cannot be allocated to an isolated room, share in the apartment should be smaller than the smallest isolated room.
For example, a 1/4 share in a one-room apartment is significant, but already a 1/5 share, in the same one-room apartment, is already an insignificant share of the apartment.
But a 1/5 share in a four-room apartment is considered significant if it is larger in size than a small isolated room.
Minor the co-owners can and have every right to forcibly redeem through the court from the owner who stands out, and it is impossible to forcibly redeem a significant share in the apartment from the co-owner, it is much easier to win a lawsuit to move into such a share.
Everywhere it is said that the owner has the right to use his share of the apartment. To our deepest regret, no one gives a concrete answer to the question: “What does it all mean?”.
Is it possible, for example, , which is one hundredth of the entire apartment? The situation with this issue is very incomprehensible and absurd, just some kind of legal incident, a loophole in the law or someone's intentional flaw.
It is physically impossible to live on a small share, but to win trial Can. It is possible to sell absolutely any , it all depends on the price. The price should be adequate, for each share in the apartment there is a buyer. We must also not forget that if a share in an apartment, no matter what size, is the only housing, then it is impossible for the other party to share in the apartment forced to buy.
In other words, if someone share in the apartment will be 1 sq. meter and he will have no other housing than this meter, the court will not be able to claim anything and deprive this, insignificant . The owner of such shared property, however paradoxical it may sound, can move in and live on his property, although it seems to be virtually impossible to live on it. Absurd, of course, but all this is quite .
Share in the apartment: you can always agree
Suppose someone has inherited or received as a gift, and his co-owners are not allowed into the apartment on his property, shouting through the door that they will let him in only by a court decision. What to do in such a situation?
There are several options:
1. Try to negotiate through negotiations with another owner of the apartment.
2. Move into an apartment. It is possible to file a lawsuit with the court about moving in, but, most likely, the case will be lost.
Court, on the basis that share in the apartment insignificant, will refuse to move in. You can also claim compensation. But the opponent, for example, will say that he simply does not have money. Then you will need to sue for non-obstruction in use, such a case is almost always winning.
The Constitution of the Russian Federation guarantees the right of a person to use his property. Even if it's just a few square meters.
3. Well, if there is no desire, no strength, no opportunity and you want to forget about all this as horrible dream of course worth it . Of course, selling a share in an apartment is much more difficult than , and frankly speaking, the share in the apartment will be sold at a not small discount, but, in any case, it is better than giving it to "neighbors".
No more than 50% of the price that you could get if you sold the entire apartment together.
Shared ownership is formalized by the constitution
The most important document in any state is the Constitution.
In the Constitution Russian Federation there are articles that you need to use when such difficulties arise.
Article 35
1. The right of private property is protected by law.
2. Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons.
3. No one may be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.
4. The right to inherit is guaranteed.
Article 25
The residence is inviolable. No one has the right to enter a dwelling against the will of the persons living in it, except in the cases established by federal law or based on a court order.
Civil Code of the Russian Federation - articles 249, 250, 252. It says that the owners, by mutual agreement, use, dispose of, own the property that they have. And if they do not reach an agreement, then the problem is solved in court.
Share in the apartment: section
Most often, problems with shared property appear as a result of the division of property between heirs or former spouses. People die, get divorced, new families are formed. Instead of the original owners, their heirs appear and conflicts often arise. And quite ordinary immediately becomes a problem share in the apartment.
When new owners of a share in an apartment appear, the question immediately arises: "How to use this shared property and apartment?" Of course, it’s great when the new and old owners of shared ownership agree amicably: they determine compensation for a share in the apartment, sell the apartment jointly and share the money, or simply live calmly and peacefully in a shared apartment. It’s a pity, but the heirs often cannot or want to agree. Some owners more impudent and brisk, for example, they put up a metal door, change the locks and do not let their co-owners in.
Here they are, by the way, real raiders, and not those who, even with a grinder in their hands, are trying to get on their property and it doesn’t matter how he got it, if not rightfully, then this is the business of the investigating authorities, and not dug in and barricaded neighbor, who, as at a rally, shouts: “Help, save, the raiders are depriving property,” while he himself, without a twinge of conscience, uses someone else’s property and infringes on the rights guaranteed by the Constitution of the Russian Federation, to everyone without exception.
What to do in the event that the party that cannot get into the apartment, if the co-owner, confident in their impunity, prevent his access to the apartment and do not want to enter into a dialogue and negotiate? One of the roads, of course, is to court.
Share in the apartment: move in through the court
Apply to the court with a claim to recognize your share in the apartment as insignificant and forcibly buy it out by another co-owner with payment of compensation. Article 252 part 4 of the Civil Code of the Russian Federation. The court will decide to recognize the owner of the one who has a large share in the apartment and oblige him to pay compensation to another co-owner.
It depends on many factors: shares, the price of the apartment itself, the size of the share and the size of the rooms in this apartment, the presence of minors, the number of co-owners. Appraisers and realtors consider shares in apartments with a very tangible discount.
In such a situation, a lot depends on the judge himself. Almost always, appraisers estimate the share of two times cheaper than it costs, where all the owners have agreed and jointly sell the apartment.
And the judges agree or are forced to agree with this assessment. Although this is fundamentally wrong. This, according to lawyers, is a sad practice in Russia. It turns out that the one who redeems did not agree to an amicable agreement and thereby, as a result, redeems a share in the apartment from his co-owner at half the price. Is it fair? And who is the real raider?
Article 209 of the Civil Code of the Russian Federation states that a citizen has the right to use his property (share in a residential building), live there, store his belongings, and other owners of shares in this apartment have no right to interfere with them. Of course, you can file a lawsuit in court for the protection of violated rights. But there is no absolute guarantee that the plaintiff will win such a case. The current judicial practice suggests a slightly different way out of this situation.
It is necessary to file a claim for non-obstruction in the use of the apartment, moving in, the obligation to hand over the keys, etc. This is definitely a win-win. The only bad thing is that this case can drag on for a year or more, and all this time the other owner of the share in the apartment will use the entire apartment, and you will rent a house or live at the station.
It may also happen that even after the court makes a decision in favor of the infringed co-owner, it turns out that this court decision cannot be enforced. Unfortunately, in case of non-execution of the court decision to move into the apartment, the bailiffs can only fine the dug-in co-owner and he does not have other real levers of pressure to enforce the court decision under our legislation.
And the funny thing is that after a successful move in, it may well happen that the castle will change again and the six-month-old process already familiar to the pain will have to be started anew.
Such is the imperfection of the law in this direction, if the court decision has already been executed and the plaintiff was forcibly moved into the apartment, and the co-owner kicked him out again, the bailiff will not be able to help. That is the law. The previous court decision has already been executed, and if the conflict arose again, you need to go to court again and file a lawsuit again. More details can be read .
Share in the apartment - protect yourself
In accordance with Article.Article. 12, 14 of the Civil Code of the Russian Federation, the protection of civil rights is carried out, including through self-defense of one's rights. The owner of absolutely any and even an insignificant share in the apartment, in the event that the dug-in co-owner is a “raider”, forgetting that he does not own the entire apartment, but only part of it, does not give you the keys, then, relying on the law, you can hack door.
There is no arbitrariness in this, as some lawyers representing the side of the "entrenched" co-owners, who are trying to drag them into the lawsuit, say. Lawyers do not take money for the result, but for the trial and the time spent in court.
A citizen who, by law, owns a share in an apartment, has the right to do just that, since another co-owner - a "raider" does not let him into the apartment, which violates his right to use the living quarters.
We just need to remember the limits of self-defense. Ways of self-defense of civil rights must be proportionate to the violation and not go beyond the actions necessary to suppress it, Art. 14 of the Civil Code of the Russian Federation. It is quite possible to break locks, bolts, doors, but it is impossible to blow up a door. It is also impossible to destroy someone else's furniture in the apartment.
It is quite natural that breaking the lock on the owner's door will be completely commensurate with the violation of the one who does not let one of the owners into his apartment and will not go beyond the limits of the action required in order to cut this violation.
He had to break the lock and, if necessary, the door, only due to the fact that the "neighbor" arbitrarily installed locks on the common door and did not give the keys. This was the only reason why a lock or a door was broken, which interfered with the legal right to use the living quarters.
Imagine how ridiculous a statement to the police will sound in which it will be written: "... I did not let my co-owner into the apartment, because I believe that only I can use the entire apartment, and despite this, he broke the lock that I bought and I installed it on the front door of an apartment that belongs to me and my co-owner, whom I did not let in in shared ownership ....." It's funny, isn't it? By the way, the door also belongs to shares commensurate with the shares in the apartment.
Share in the apartment - my property
So that in the future there will be no misunderstandings before going with the "Bulgarian" to the door of the apartment, the owner of the share in the apartment, as some "walkers" say, should take these actions.
Provide the originals of your title documents for a share in the apartment, at the local police station. Put them in the know in writing that you are not going to do anything illegal. What, according to paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his discretion, to perform any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons. Write a statement in the duty department of the district police department that the co-owner - the "neighbor" has dug in and does not let him into the apartment, which is the same as yours, and that's the only reason you have to break the door.
Be sure to mention Article 14 of the Civil Code, which allows self-defense. At the end of the application, be sure to write that you are asking to explain and clarify to another participant in shared ownership about the inadmissibility of illegal actions on his part aimed at obstructing and preventing you, the same owner as he, from entering the apartment.
After this procedure, according to "experts", it is quite possible to open the door and bring in your things.
Knowing that a statement was written to the police about self-movement from the injured co-owner, usually the duty officer calls the district police officer and asks him to be present there so that there is no massacre or does not respond to such a call at all. It is also worth, as they say, to send a telegram to the name of the dug-in co-owner with your demand to provide the keys to the apartment, which is in common shared ownership.
It's better to send several. Be sure to take certified copies of the texts of telegrams and copies of notifications of delivery by telegraph. Have this on hand when moving into a shared apartment. Attach copies to the police report. This will also serve as evidence that the "villain" ignored them and deliberately prevented the exercise of the rights of the owner.
Yes, and to open the door, you can invite employees of the Ministry of Emergency Situations. The call will cost 3-4 thousand rubles and almost any lock will be opened in 10 minutes. After all this, the “enemy” will be afraid to leave the apartment, where he, like he once, may not be allowed in either. Perhaps such actions on your part will be more productive than trying to negotiate through the keyhole.
