Insignificant share in the apartment: definition, documents, use, right to sell

In shared ownership today is about 95% of apartments. Various transactions are made with immovable objects. As a result of some of them, the share of ownership in the apartment arises. In many cases, its size is quite sufficient to carry out the normal use of the area. However, sometimes an insignificant share in the apartment can be formed.

Many citizens have difficulties not only in the implementation of transactions with such real estate, but also with its use. After all, often when recalculating into square meters, the area of an insignificant part of the room becomes such that one can hardly put a foot there, let alone a normal residence. Let us further consider what can be done with such property.

General information

An insignificant share in the apartment is less than 1/4 of its area and the smallest isolated room in it. In some cases, it may not reach 1 square meter. If, for example, there is 1/10 part of the apartment, but the total area of the facility is 300 sq. M. M. And there are 12 rooms in it, then it can correspond to some room. In this case, you can set the order of use without much difficulty. However, a small proportion of the apartment creates certain difficulties. First of all, they are connected with the impossibility of isolating it.

Specific features of the law

Previously, it was allowed to buy out a share in the apartment, if it could not be allocated in kind. This procedure was carried out under Art. 247. This is what this rule says:

• Property that is in shared ownership may be shared by its participants by mutual agreement.
• A subject may require an excavation of the area due to him.
• In the event that the agreement is not reached by the participants, the conditions and the method for dividing the property or requesting a virtual part of it to a real interested person can file an application with the court.

In some cases, an allocation is not possible without disproportionate damage to the immovable property or is not permitted by law. In this case, Art. 247 CC provides for compensation for the share in the apartment. It is paid by other property owners with the consent of the person concerned. However, the rule makes a reservation: if there is no significant interest of the participant, and its share is recognized as insignificant, payment of compensation can be made without its consent. After receiving money, the subject can no longer claim the common property.

Practical application of provisions

Specialists who used art. 247 in their activities, mainly read that a small proportion of the apartment can be purchased without the lack of consent of its owner. On the remaining provisions of the norm, very few people paid attention. As a result, the purchase of a share in the apartment became one of the most popular cases in the courts. In all cases, there was an urgent question about the price. If the cost of a room in an apartment can be determined without much difficulty, then the virtual area is not so smooth. As a result, in the process of applying the norm, many opportunities appeared for the manifestation of corruption.

Trials

Recognition of the share is insignificant - the procedure is rather time-consuming and lengthy. First of all, the interested person sends the claim to the court. The application is made according to the rules of the CCP. The claim is filed with the district court located at the location of the disputed property. The subject of the application will be recognition of the law. In practice, a number of conditions have been worked out that ensure the probability of winning the dispute. Here it is worth mentioning the conclusions of the Armed Forces. In its definitions, the court stressed that, while allowing the possibility of redemption of shares, the legislator proceeded from the exclusivity of such situations.

Accordingly, the first instance can render a decision in favor of the plaintiff not in all cases, but only in the presence of a number of circumstances. They include:

1. Impossibility to allocate to the plaintiff an isolated room corresponding to the size of his share.
2. The applicant never entered the disputed square.
3. The rest of the participants in the shared ownership are outsiders to the plaintiff.
4. When concluding a contract (for example, when acquiring an object), the applicant knew about the situation with the property.
5. The former caterpillar did not use the object.
6. The participant did not ask for an action before filing a suit to the apartment and did not contest his rights.

Explained

In practice, it will be extremely difficult to make a decision by analogy in the situation under consideration. Suppose, the sodomaler filed an application with a demand for settlement before being sued for recognition of the insignificance of the share. The last clause of the above in this case is excluded. There may be a situation where a former sodomist used a certain time flat. In this case, item 5 of the list is not fulfilled. The subject in the proceedings may not admit that he knew about the situation with the object. From all this it follows that the operation of the law extends only to single minor shares.

The problems of evaluation

The owner of the share in the apartment meets with the need to determine the price of his virtual property. For this, the court initiates the evaluation process. Experts proposed a discount scheme. According to it, any share was estimated 2-3 times cheaper in comparison with if it were sold together with the apartment.

Let's consider an example. The apartment has 2 shares. The total price of the facility is 5 million rubles. Accordingly, 1/2 will be estimated at 2.5 million. However, if half the object is sold separately, while it has another scandalous owner, then it can not have a high price. The maximum that can be offered for it is 30% of 5 million rubles. As a result, the sale of the share in the apartment was implemented jointly with the entire facility. Of course, this is more profitable. Participants agreed with each other, they sold the apartment, and the money was shared in accordance with the existing shares.

However, it is not always possible to reach such a compromise. At the same time, problematic shares are, rather, exceptions. In this regard, the virtual area should be evaluated in relation to the whole real estate. However, here again there was a place for corruption. Let's say there is an apartment with shares of 7/8 and 1/8. The last is smaller than the smallest room in the area. The owner of a larger stake wanted to buy out 1/8. However, the owner of the latter does not want to sell it for a small amount. The owner of 7/8 appeals to a lawyer. The lawyer makes a claim against the owner 1/8 about her redemption and monetary compensation. The court must appoint an appraisal appraisal. At the same time, he can apply to any specialist at his own discretion.

If an appraiser working on a discount basis is chosen, the plaintiff will win. As a result:

• The purchaser 1/8 gets what he wants with the least loss.
• The lawyer is paid a fee, and the appraiser - a reward for the work.

However, for all procedures, the owner paid 1/8. The subject incurred significant losses, as the sale of a share in the apartment was forced for a ridiculous price.

Elimination of corruption manifestations

At present, the cases of redemption of minor shares belong to the losing category. Moreover, such transactions are impossible today. In 2012, the Armed Forces, the Moscow City Tribunal and the Moscow City Court explained that the purchase of an insignificant share is permissible only if the defendant raised the issue of its allocation in kind. However, given the size of the virtual property, this is in practice impossible. For the vestibule you need the equipment of a separate entrance, kitchen and bathroom. It is impossible to do this in an apartment.

Prohibition of accommodation

It is installed in one of the definitions of BC. It is difficult to say how many real estate owners touched this act. The definition was adopted when reviewing the dispute of the owners of a small apartment. However, the provisions of the Act concern an undefined number of persons. The importance of the law is that many citizens now own a share in the apartment. By inheritance it is obtained or due to other transactions - it does not matter.

Problems arise in connection with the disproportion of virtual areas. Some owners own substantial shares. They can correspond to one or more rooms. Others have a very small share in the apartment. Rights to property, meanwhile, want to produce everything equally. In particular, owners of microscopic virtual areas need to be introduced. The consideration of such cases before the courts ended earlier with a decision in favor of the plaintiffs. As a result, the apartments turned into so-called "crow crowds", where neither previous nor new users can get along. Conflicts begin in which the strongest wins. However, he is not always the one with more rights. The Supreme Court, having reconsidered one of these cases, clearly indicated the legislative norms, explaining when it is permissible for the proprietors to enter the apartments, and when not.

The essence of the dispute

In the court of the Moscow region, a citizen who was an owner of the apartment, as well as the defendant, applied. At the same time, the applicant had 1/40. The defendant owned 1/2. The controversial object was a one-room small apartment. The court decided in favor of the plaintiff. As a result, she moved into an apartment. The defendant, disagreeing with the decision, appealed to the Armed Forces. The court, having studied the materials, found that the regional authority had violated the law. Accordingly, the defendant's claims were fully justified.

During the study of materials it was revealed that the plaintiff was registered in the premises on the eve of the application. The defendant, in turn, lived in the apartment for a long time. The first instance, while satisfying the claim, was guided by the following: the plaintiff had the right to demand accommodation, since under Article 30 of the LC, she could dispose, own and use the premises. This conclusion was called VS violation of material norms. The position was justified as follows. The LC states that the object of rights is a dwelling. It can be represented in three forms. It can be a house, an apartment or parts thereof, and also a room.

In accordance with Art. 30 the rightful owner may dispose of and own his property. However, the disputed apartment belongs to four owners. It follows that article 30 can not be used alone. Together with it it is necessary to use another norm. It is 247 article of the Civil Code. It says that it is allowed to dispose of shared ownership only by agreement of the participants. If it is not reached, then you should go to court. When studying the case materials, the latter found that the corresponding decision was. The plaintiff who owns 1/40, together with her son, has already applied for the order of use. However, the court refused to satisfy this statement. At the same time, the decision noted that the shares are so small that they can not be allocated for use. The District Court, in turn, did not take into account this decision.

conclusions

The Supreme Court stressed that when making a decision, one important circumstance was not taken into account: when recalculating the disputed share is 0.5 square meters. M. It is impossible to allocate this area in kind under any conditions. As a result, the situation develops so that a disputable object can not be used by all owners without violating the rights of the owner having the largest share. Next, we should note the important conclusion of the Armed Forces. He points out that the owner's realization of the possibility of using and owning the premises depends on the size of its part and the agreement of all participants. As the world court had already refused the applicant, the district court had no reason to satisfy the new lawsuit.

However, this is not all. The main violation, according to the Supreme Council, was the infringement of the rights of other equity holders. Here the court refers to constitutional provisions. The main law states that the right of the subject to choose the place of residence should not violate the interests of other persons. The sun draws attention to the fact that disputed real estate has never been used by a plaintiff, unlike a defendant. The latter is not only the owner of most of the object, but also lives on its territory for a long time. Thus, the Supreme Court ruled as follows: in accordance with Art. 10 Civil Code of the right of the owner of an apartment can not be carried out solely with the intention to harm another citizen, actions are bypassed for circumvention of norms with an unlawful purpose, other unscrupulous behavior.

The court stressed that the circumstances examined by him allow us to assess the actions of the applicant, the owner of 0.5 square meters. M., Requiring it to infiltrate the premises, as an abuse of its legal capabilities. They violate the rights of the owner of an apartment owning half the object. Sun canceled all past decisions, and the case was sent for revision. As a result, Mosoblsud denied the plaintiff.

Donating a share in an apartment

Any real estate transaction involves the conclusion of a written contract. The document should contain the following information:

• Description of the share that is given as a gift.
• Data of passports of participants in the transaction.
• The location of the property.
• The number of square meters provided as a gift. They are calculated according to the total footage.
• Floor on which the apartment is located.
• Number of floors in the house.
• Additional conditions.

In the last paragraph you can, for example, indicate that the owner of the share will live for a certain time in the apartment or will not be discharged from it. The price of the property is not necessary.

check in

How to apply for a share in an apartment? It is necessary to apply to the registration authority at the location of the property. The contract is signed before the expert of the authorized agency. The Registrar shall be provided with the following documents:

• Passports of participants in the transaction.
• The contract. The number of copies must be greater than the number of participants in the transaction for 1 pc. The superfluous remains at the registrar.
• Title document on the object. As it can act as a certificate, the contract of transfer, purchase and sale, investment / rent, an extract from the Unified State Register.
• Consent of the spouse certified by a notary. It is necessary if you donate a share in an apartment acquired in a marriage.

If a representative acts on behalf of any party, a power of attorney authorizing his authority is additionally given. If the subject to whom the share is given is a minor or incapacitated, the consent of the guardianship and trusteeship authority is granted. The need to present this document should be clarified in the registration authority. A receipt for payment of the state duty is attached to these securities. Having accepted all documents, the registrar makes a statement in 2 copies. They are checked and signed by the parties to the transaction. After that, the registrar issues a receipt indicating the date of receipt of the certificate.

Appeal to the notary

This is the second option for registering a share in an apartment. This method is more costly, but in some cases more justified than turning into regalata. The following documents are provided to a notary:

• Passports of participants in the transaction.
• A legal document confirming the legality of the ownership of real estate.
• The contract is the basis.
• Extract from EGRP.

In some cases, notaries ask for a certificate of registration of persons registered on the premises. The gift agreement will be made in several copies. In this case, the price of the property will be indicated in the document. It is on its basis that the fee and the cost of notary services will be calculated. He also can assure the consent of the spouse.

Conclusion

For registration, the notary will take the original documents (except passports) and the gift agreement. Like the regalata, he issues a receipt, which indicates the date of receipt of securities. They can be collected from a notary or the registration authority. The certificate is issued upon presentation of passports. In addition, the new owner will receive an extract from the EGRP with the appropriate entry.